State v. Ferrise, 47881.
| Citation | 269 NW 2d 888 |
| Decision Date | 18 August 1978 |
| Docket Number | No. 47881.,47881. |
| Parties | STATE of Minnesota, Respondent, v. Robert FERRISE, et al., Appellants. |
| Court | Minnesota Supreme Court |
Rapoport, Singer & Miller, Aurelio Nardi, St. Paul, for appellants.
Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Vernon E. Bergstrom, David W. Larson and Lee W. Barry, Asst. County Attys., Minneapolis, for respondent.
Heard before ROGOSHESKE, KELLY, and MacLAUGHLIN, JJ., and considered and decided by the court en banc.
This is an appeal pursuant to Rule 29.02, subd. 3, Rules of Criminal Procedure, which allows discretionary appeals only in the "interests of justice," by a defendant from a pretrial order denying the suppression of evidence. We affirm.
Early on December 3, 1976, Deputies Edward Neubauer and Dan Dunlevy of the Hennepin County Sheriff's Department were on routine patrol on Highway No. 55, which is a divided highway, when they received a radio communication indicating that a robbery had occurred at the Hanson House. A short time later the deputies, who were traveling west, observed a car being driven in the wrong direction in their lane. Deputy Dunlevy swerved to avoid a collision with the approaching car, which then turned onto a turn-around area and headed east on Highway No. 55 in the eastbound lane. Deputy Dunlevy made a U-turn and signaled the driver of the car to stop, which he did immediately. Deputy Dunlevy stopped 8 to 10 feet behind the car.
Deputy Neubauer then got out and walked toward the stopped car. About the same time defendant Klotter, the driver, stepped out of the stopped car and met Deputy Neubauer halfway between the two vehicles. In response to the deputy's questioning, defendant Klotter stated that he had no identification or driver's license in his possession but that he did have a driver's license. Deputy Neubauer then patted down defendant Klotter and, finding no identification, requested that defendant step inside the police van so that they could verify by radio his claim to a driver's license. While placing defendant in the police van Deputy Neubauer asked if there was anyone in the car. Defendant replied that a friend was with him. The deputy explained his next actions on direct examination at the Rasmussen hearing as follows:
Deputy Neubauer grabbed the gun, removed the passenger, patted him down, and then brought him back to the police van. While placing the passenger in the van Deputy Neubauer heard another radio communication concerning the Hanson House robbery, this to the effect that two weapons, one long-barreled and one short-barreled, had been used in the robbery. The deputy then removed defendant Klotter from the van for a second patdown to make sure that he did not have a weapon. Since the weapon he had grabbed was long-barreled, Deputy Neubauer then got back in the van and requested the broadcast of the entire transmission concerning the Hanson House robbery. The information he received was that two persons of medium height, wearing ski masks and dark clothing, were involved in the robbery. Deputy Neubauer mentally noted that the description given matched somewhat that of the two men he had placed in the van. Prior to receiving this last transmission the deputy had not suspected the two men of any involvement in the Hanson House robbery.
After calling for assistance Deputy Neubauer walked back to the stopped car and saw through the open door what appeared to be a ski mask lying against the hump on the floor of the front seat. Picking up the ski mask, the deputy looked inside and found another ski mask and a short-barreled weapon. Shortly after these additional items were seized, the two men were identified, advised of their rights, and transported to the Hennepin County Jail. The vehicle was taken into police custody and subsequently searched pursuant to a search warrant.
The decisive issue for determination is whether Deputy Neubauer's conduct of opening the passenger door, seizing certain evidence, and taking the passenger into custody was constitutionally permissible. The determinative case, in our opinion, is Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In that case, the United States Supreme Court was presented with the issue of the permissibility under the Fourth Amendment of a police practice of routinely ordering drivers out of automobiles lawfully stopped for minor traffic violations. In upholding the practice against the Fourth Amendment challenge, the court followed the now familiar balancing approach for determining the reasonableness of the police action.1 The proffered justification for the police practice of ordering lawfully stopped drivers to get out of their cars was that "establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault." 434 U.S. 110, 98 S.Ct. 333, 54 L.Ed.2d 336. Terming this justification "both legitimate and weighty," the court balanced it against "the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car." 434 U.S. 111, 98 S.Ct. 333, 54 L.Ed.2d 337. The court characterized this additional intrusion as being "de minimis." Concluding its analysis, the court stated that "what is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." 434 U.S. 111, 98 S.Ct. 333, 54 L.Ed.2d 337. Because the police order was proper, the court upheld Mimms' conviction, since the evidence on which the conviction (for a possessory weapons offense) was based was properly seized pursuant to a lawful weapons frisk necessitated by the officer's observation of a bulge in Mimms' coat when he alighted from the vehicle.
If an officer orders a driver to get out of his car, as in Mimms, what he in effect is doing is also ordering the driver to open the door, because that is generally the only reasonable way a person can get out of a car. Operationally then, there is little practical difference between ordering a driver to open his door and get out of his car, on the one hand, and opening the door for the driver and telling him to get out, on the other. In this case, if the driver had not gotten out of the car on his own, the officer could have opened the door and told him to get out.
While the Mimms case involved only the right to order a driver to get out of the car, the Mimms analysis would seem also to justify a policy of ordering passengers out. The same concern of the officers for their own safety applies, and the intrusion on the rights of the passengers occasioned by being required to get out of the car is no greater than the intrusion on the rights of the driver.
In this case, the officer who opened the door and told the passenger to get out did not testify that he did this pursuant to any policy or out of any concern for his own safety. The officer, however, had a good reason for going back to the car and talking to the passenger. Specifically, he wanted to see if the passenger could aid them in accurately identifying the driver so a license check could be made. Since the car was covered with snow and the officer could not see the passenger, the officer simply opened the door. While he probably could have tapped on the window to get the passenger's attention, we fail to see how this action in opening the door in order to talk with the passenger could be deemed unreasonable, especially when under the Mimms holding he probably could have done so whether or not he had a particular reason for wanting to talk to the passenger.
We...
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