State v. Gannaway, 43058

• Decision Date: 05 November 1971
• Docket Number: No. 43058,43058
• Citation: 291 Minn. 391,191 N.W.2d 555
• Parties: STATE of Minnesota, Appellant, v. James William GANNAWAY, Respondent.
• Court: Minnesota Supreme Court

Page 555

191 N.W.2d 555

291 Minn. 391

STATE of Minnesota, Appellant, v. James William GANNAWAY, Respondent.

No. 43058.

Supreme Court of Minnesota.

Nov. 5, 1971.

Syllabus by the Court

A corncob pipe seized from defendant's outer coat pocket by a police officer during the process of 'frisking' defendant for weapons and a plastic bag of marijuana seized from defendant's trouser pocket during a constitutionally impermissible search were properly suppressed.

Warren Spannaus, Atty. Gen., James M. Kelley, Asst. Atty. Gen., William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for appellant.

Vance K. Opperman, St. Paul, for respondent; Doherty, Rumble & Butler, St. Paul, of counsel.

Heard before KNUTSON, C.J., and ROGOSHESKE, PETERSON, KELLY, and ROLLOFF, JJ.

OPINION

PETERSON, Justice.

This is an appeal by the state, pursuant to Minn.St. 632.11, subd. 1(3), from the district court's order suppressing certain evidence necessary to the prosecution of defendant for possession of narcotics in violation of Minn.St.1969, § 618.02. The seized articles consisted of a plastic bag containing marijuana and a corncob pipe, the bowl of which contained a residue of marijuana. Chief Judge John Graff suppressed the evidence on the ground that the search and seizures were constitutionally impermissible under the Fourth Amendment, a ruling in which, on this record, we fully concur.

On December 22, 1970, at 10:45 p.m., St. Paul Police Officers Joseph Pelton and James Campbell stopped defendant, James William Gannaway, for driving the wrong way on a one-way street, Dayton Avenue, in the Selby-Dale area of St. Paul. At Officer Pelton's request Gannaway produced his driver's license and then got out of his car. Pelton testified that he warned Gannaway to keep his hands out of his pockets but that Gannaway seemed intent on reaching into the right pocket of his outer coat. Thinking that Gannaway might be armed, Pelton thereupon commenced a protective 'frisk' of the outer coat for weapons. He felt a bulge in Gannaway's right coat pocket which he thought might be a gun but, upon searching the pocket, he found only a corncob pipe equipped with a metal screen on top of the bowl.

It is the police officer's conduct thereafter which is the focus of the constitutional issue. With most commendable candor, Pelton admits that at the point of taking defendant's pipe he had no reason to believe that Gannaway had narcotics in his possession. Although subsequent chemical analysis revealed a residue of marijuana in the bowl of the pipe, the most that Pelton observed at the time was that it was a pipe usable for that purpose--and he did not at that point undertake to arrest him for a narcotics offense. Rather, Pelton continued the search only in the stated belief that Gannaway might be armed. Yet, for unexplained reason, Pelton retained the pipe and expanded his search to other clothing of defendant that gave no indication of the possible presence of a concealed weapon. He simply 'pulled everything out' of Gannaway's other pockets, finding a small plastic bag containing marijuana in Gannaway's trouser pocket. He thereupon arrested Gannaway for the offense of possessing marijuana.

Ordinarily police officers may not, without a search warrant, make an exploratory search of a person arrested for a minor traffic offense. State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333, certiorari denied, 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94. A search...