State v. Cavegn
| Decision Date | 01 August 1980 |
| Docket Number | No. 50396.,50396. |
| Citation | 294 NW 2d 717 |
| Parties | STATE of Minnesota, Respondent, v. Robert Martin CAVEGN, Appellant. |
| Court | Minnesota Supreme Court |
Stephen W. Cooper, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., Thomas W. Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
Heard before OTIS, PETERSON, and SCOTT, JJ., and considered and decided by the court en banc.
Defendant Robert Cavegn was charged with possession of marijuana and LSD. The parties agreed to waive a jury trial and try the matter before the Ramsey County District Court and further agreed that the omnibus hearing testimony, additional testimony by defendant, and police records constituted the trial record. The trial court found the defendant guilty of both possession of marijuana in excess of 1.5 ounces and possession of LSD. We affirm.
On December 27, 1978, St. Paul Police Officers Edward Lundholm and John Culhane were approached by two young men, Bradley Peterson and Michael Luchow, who asked if they could speak to one of the officers. Officer Lundholm talked to the two men alone, and testified that they told him that defendant had given them three or four LSD microdots to sell. The microdots were subsequently analyzed and presumptively shown to contain LSD. Peterson and Luchow told Officer Lundholm that defendant was a middleman and that they had been to the residence of defendant's supplier, Rusty, and had seen large quantities of LSD there.
Information concerning the defendant was also obtained from the Narcotics Division. Officers Lundholm and Culhane were told that defendant sold drugs in the vicinity of Minnehaha and Snelling Avenues in St. Paul; that he carried his narcotics in a brown paper bag; and that he could be expected to drop the bag and run if approached.
Sergeant Pitman of the Narcotics Squad suggested that officers stop and investigate or search defendant if they saw him acting suspiciously. Officer Culhane prepared an information report for the police rollcall bulletin board which stated that defendant was believed to be dealing in drugs in the vicinity of Minnehaha and Snelling and that he usually carried narcotics in a brown paper bag. A photograph of defendant was included with the bulletin. No attempt was made to get a search warrant or an arrest warrant for defendant.
Several days later, on January 2, 1979, Officers Gerald Seliski and Herbert Carlson, having read the information report on defendant, noticed him walking along University Avenue between Avon and Grotto Streets at 11:59 p. m. The officers stopped their squad car next to defendant and Officer Seliski got out of the passenger side and told defendant by name to stop. Officer Carlson radioed their position before joining Seliski.
Seliski noted that defendant carried a Clark Submarine Sandwich bag in his hands. Defendant held his arms tightly pinned against his body, holding something underneath his jacket. Defendant's outer jacket was partially unzipped and part of a large brown grocery bag was sticking out over the jean jacket he wore underneath. Officer Seliski testified that because of the time of night, defendant's apparent nervousness, and the fact that defendant was holding something close to his body, he was concerned about his personal safety. Seliski told defendant that he wanted to frisk him, and defendant replied, "Go ahead." Seliski asked defendant to unzip his outer jacket the rest of the way. When defendant did so, the brown paper bag fell to the ground. Seliski asked what was in the bag, and defendant said, "You know." Seliski replied that he did not know, and defendant responded, At this point, Seliski opened the brown paper bag, and observed what appeared to be marijuana in plastic baggies. Defendant was arrested, placed in the squad car, and given his Miranda warnings. Other items taken from defendant included thirteen LSD microdots found in the brown paper bag, a small coin purse containing two marijuana joints, some plastic bags, a scale, and $76 in cash.
At 10:45 a. m. on January 3, Sergeant Schwartz asked defendant to read, initial, and sign a standard Miranda waiver form. Defendant refused to make a written statement, but did talk to Schwartz. He stated that all he had done was buy a quarter pound of pot and added, "Whoever heard of going to jail for marijuana, anyhow." Defendant was released later that day. He went to the Narcotics Division office and asked Sergeant Jan Pitman for his $76. When Pitman replied that the money would be held as evidence because of the dope found in defendant's possession, defendant said, "What do you think I bought it with?" or "That is what I bought the dope with." When defendant was told that he was being released pending further investigation because the substances seized had not yet been analyzed by the crime lab, defendant stated, "Well, doesn't the crime lab know what weed looks like?"
Defendant testified in his own behalf at the Rasmussen hearing, and his version of the arrest differed somewhat from that of the officers. Defendant claimed that the brown paper bag was not visible until he unzipped his outer jacket at Seliski's request. Defendant also maintained that he showed no signs of nervousness. When defendant gave additional testimony pursuant to the court trial, he testified that he knew that marijuana was in the brown paper bag, but denied knowing that the bag also contained LSD. When questioned about his relationship to Peterson and Luchow, defendant denied giving them LSD, but admitted that he had been acquainted with them several years earlier.
Defendant raises three issues on appeal:
(1) Was the police officers' investigative stop and frisk of defendant proper under the circumstances of this case?
(2) Were defendant's statements to police officers properly admitted into evidence?
(3) Was the cross-examination of defendant concerning his attempt to persuade the two young men to sell LSD for him properly permitted by the trial court?
1. Defendant argues that the police had no right to stop and question him without a warrant because the circumstances of this case do not fit into any of the exceptions to the warrant requirement. The trial court upheld the stop and frisk under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
The United States Supreme Court held in Terry v. Ohio that a police officer can lawfully make a forcible investigative stop of an individual and frisk him for weapons on less than traditional probable cause if he is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1880. Accord, e. g., State v. Johnson, 257 N.W.2d 308 (Minn.1977); State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975); City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975).
The information necessary to support an investigative stop and frisk need not be based on the officer's personal observations. An informant's tip may be adequate if it has sufficient indicia of reliability. However, the level of information necessary for probable cause to arrest is not required for an investigative stop and frisk. Adams v. Williams, 407 U.S. at 145-7, 92 S.Ct. at 1922-1923. Moreover, this information may have been acquired through regular police channels, and the underlying basis of official suspicion need not be known to the officer acting in the field. State v. Radil, 288 Minn. 279, 179 N.W.2d 602 (1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971); State v. Stark, 288 Minn. 286, 179 N.W.2d 597 (1970), cert. denied, 402 U.S. 930, 91 S.Ct. 1529, 28 L.Ed.2d 864 (1971); United States v. Impson, 482 F.2d 197 (5th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973).
In the present case, it would appear that the police officers were justified in stopping defendant to investigate the possibility that he was illegally carrying controlled substances. The officers had been told that defendant was selling drugs in the general area where they observed him. The most recent confirmation of this had come from Bradley Peterson and Michael Luchow five days earlier, and the information was repeated to the arresting officers on the day of the arrest. When the officers first noticed defendant, he was walking down the street at a late hour carrying a paper bag; the officers had been informed that defendant carried drugs in a brown paper bag and would drop it and run if approached. Upon closer observation, the officers realized that defendant was carrying a submarine sandwich bag, but they also noticed that defendant held a brown paper bag very tightly underneath his outer jacket. All of these specific facts, together with rational inferences therefrom, would justify the officers' conclusion that illegal activities might be afoot and should be investigated. As the United States Supreme Court stated in Adams v. Williams.
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See 392 U.S. at 23, 88 S.Ct., at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
407 U.S. at 145-6, 92 S.Ct. at 1923.
After Officer Seliski had stopped defendant on the street and had walked over to talk to him, Seliski decided...
To continue reading
Request your trial