State v. Bitterman

• Decision Date: 11 July 1975
• Docket Number: No. 44868,44868
• Citation: 304 Minn. 481,232 N.W.2d 91
• Parties: STATE of Minnesota, Respondent, v. Daniel BITTERMAN, Appellant.
• Court: Minnesota Supreme Court

Page 91

232 N.W.2d 91

304 Minn. 481

STATE of Minnesota, Respondent, v. Daniel BITTERMAN, Appellant.

No. 44868.

Supreme Court of Minnesota.

July 11, 1975.

Syllabus by the Court

The removal of a round hard object from a defendant's topcoat pocket during a legal 'stop and frisk' coincident with a search of an apartment for narcotics pursuant to a valid warrant is justified under the Fourth and Fourteenth Amendments of the United States Constitution, as either incident to a lawful arrest based upon probable cause or as the result of a proper weapons search for protective purposes under the circumstances and facts of this precarious situation.

Dudley, Smith & Belisle, Wayne T. Belisle and Thomas Mooney, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Heard before ROGOSHESKE, PETERSON, SCOTT and CHANAK, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal from a judgment of conviction in Ramsey County District Court for the possession of heroin. The heroin was found during a search of the defendant by a police officer in a St. Paul apartment. The defendant sought to have the evidence suppressed in a Rasmussen hearing upon the ground that it was the product of an illegal search and seizure. The court denied the motion, and the case was tried on stipulated facts after the defendant waived a jury trial. The court found the defendant guilty as charged. We affirm this conviction.

On September 27, 1973, police officer Richard Freichels, who had five years' experience in narcotics enforcement, including two years as an undercover agent in the narcotics division of the St. Paul Police Department and three years under assignment from that department to the Metropolitan Area Narcotics Squad, and other officers entered the lower duplex apartment at 1154 Norton Street, St. Paul, pursuant to a valid search warrant, for the stated purpose of conducting a search of the premises occupied by Fred Quast and an unidentified female. The affidavit in support of the search warrant recited information from a reliable informant who had recently seen bindles of what appeared to be heroin within the premises, had seen resident Fred Quast inject himself with the contents of a bindle, and had observed sales of bindles on those premises. Further, independent surveillance by Officer Freichels verified the occupancy of the premises by the persons described in the warrant, as well as other information as to their 'comings and goings.'

The officers arrived at approximately 1 p.m. and were admitted to the premises by two persons, Glenn Ray Louis and Wendy Muessel or Mussell who was later determined to be the unidentified female described in the search warrant. A succession of individuals began to arrive during the search of the premises. The first of these, Michael Kieffer, was searched, had heroin in his possession, and was arrested. Fred Quast, named in the warrant, appeared and was arrested for possession of heroin. Three other persons arrived at this lower duplex, one of whom was arrested for possession of marijuana.

At approximately 2 p.m. defendant arrived with Michael Loughrey. Officer Freichels testified that upon defendant's arrival at the lower duplex he recognized defendant as someone who had been pointed out to him as a heavy user of heroin and that he had additional information from police officers that Loughrey was a known heroin user. Freichels further stated that, based upon his involvement in approximately 3,000 arrests for narcotics violations, he knew it was common for narcotics users to carry weapons. He therefore pointed his gun at both defendant and Loughrey, told them that he was a police officer, and ordered them to place their hands against the wall.

He then conducted a pat-down for weapons on the basis of personal safety. As he ran his hands down the defendant's coat, he felt a round, hard object in the left coat pocket. It appears from his testimony that the seizure of this object was simultaneous with his realization that something was there; he stated, 'I ran my hand down and hit the object; I put my hand in the pocket and took it out.' When questioned, 'At the time you took it out you didn't have any idea what it was?' he replied, 'No, I didn't.' The object was a 2-inch by 1-inch brown transparent prescription bottle. He proceeded to open the bottle and then one of the bindles it contained. Realizing that the bindles usually contained a narcotic, the officer arrested the defendant and gave him a Miranda warning. A chemical analysis revealed that the substance was heroin.

The issue is a simple one: Was this search of the defendant and the seizure of the heroin a violation of the defendant's constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution?

The defendant, upon appeal, initially contends that the conduct of the police officer in ordering him into the apartment at gunpoint prior to the discovery of the narcotics was an illegal arrest. He claims that a mere knocking upon a door of premises which happened to be the subject of a lawful search under a lawful warrant does not constitute sufficient suspicious conduct to amount to probable cause for this detention. He then asserts that if this detaining...