State v. Hardy

• Decision Date: 09 April 1998
• Docket Number: No. C6-96-1927,C6-96-1927
• Citation: 577 N.W.2d 212
• Parties: STATE of Minnesota, Respondent, v. Lavell Charles HARDY, petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 212

577 N.W.2d 212

STATE of Minnesota, Respondent, v. Lavell Charles HARDY, petitioner, Appellant.

No. C6-96-1927.

Supreme Court of Minnesota.

April 9, 1998.

Syllabus by the Court

1. The police officer's request that the suspect open his mouth constituted a "search."

2. The police officer lacked probable cause to search the suspect's mouth for drugs when the suspect merely answered police questions with a nod of his head and tightened his neck muscles as if to swallow something.

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Minneapolis, for Appellant.

Hubert H. Humphrey III, Attorney General, St. Paul, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, for Respondent.

Heard, considered and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

This criminal case raises several issues under the Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution. Specifically, this case presents the issue of whether a police officer's request that a suspect open his mouth constitutes a search and if so, whether there was probable cause to support the search under the facts of this case.

The appellant, Lavell Charles Hardy, appeals from his conviction in the Ramsey County District Court for a controlled substance crime in the third degree: possession of cocaine with the intent to sell in violation of Minn.Stat. §§ 152.01, subd. 15(a) and 152.023, subd. 1(1) and 3(a) (1994). The conviction resulted from an incident which occurred on March 23, 1995. On that date, Hardy fled from police after they requested that he open his mouth. Hardy subsequently spit 2.66 grams of crack cocaine out of his mouth after he was tackled and maced by police. Hardy argues that the request to open his mouth constituted an illegal search and, therefore, the cocaine should be suppressed. The trial court rejected this argument, finding that the police had sufficient justification for their conduct. The court of appeals affirmed Hardy's conviction, holding that the police officer's instruction to Hardy to open his mouth only constituted a seizure for which the police needed a reasonable articulable suspicion and did not constitute a search for which probable cause was required.

The facts of this case are not in dispute. On March 23, 1995, police officers Scott Payne and John Wuorinen were patrolling the Frogtown area of St. Paul in a marked patrol car. At approximately 11:00 p.m., they spotted Hardy and his friend, Gerald Fleming, walking eastbound on Aurora Avenue. The two men had just left the Badger Bar on University Avenue and Grotto Street and were headed to 733 Aurora Avenue to meet Fleming's friend, Angie. Officer Wuorinen noticed that the men kept looking back at the police car as they walked and he considered this nervous behavior which might be indicative of drug trafficking. The officers then followed a few car-lengths behind the men as they walked along the sidewalk. The men continued to walk at a normal pace until they had traveled a few feet past 733 Aurora Avenue, at which point Fleming put his hand out and stopped Hardy and motioned for Hardy to follow him to the house at that address. The two men then turned around and walked back to the house, which was completely dark, and climbed the steps leading to it. This sudden change in direction and the fact that the house was darkened further piqued the police officers' suspicions. The officers stopped the squad car in front of a neighboring house and watched as Hardy climbed the stairs leading to the front door and pulled on the storm door to gain access. Fleming remained at the bottom of the steps. After seeing that Hardy was not gaining entry into the home, the police, concerned about the possibility that the men were attempting a burglary, backed their squad car in front of 733 Aurora Avenue and got out to investigate.

The two uniformed officers approached the men and Officer Payne asked them what they were doing. Fleming responded that they were going to visit a friend. Officer Wuorinen then asked both men who they were going to see. Hardy did not respond to these questions verbally, but nodded his head in agreement with Fleming's answers. At that point, Officer Wuorinen suspected that Hardy might be concealing narcotics in his mouth. Officer Wuorinen testified that there was a great deal of street-level drug trafficking in the area. Also, he testified that it was common for individuals to conceal narcotics in their mouths and for such individuals to respond to police questions with body language rather than verbal communication. For this reason, the officers made it a practice when approaching a suspicious individual to attempt to strike up conversation to see if the person had something in his or her mouth.

When the officers again asked Hardy whom he was going to see, Hardy clenched his mouth and tightened his neck muscles as if he were trying to swallow something. Officer Wuorinen, who was standing at the bottom of the stairs, then asked Hardy to open his mouth. Hardy responded by running down the stairs. Officer Wuorinen was able to grab him and a struggle ensued. Both officers repeatedly commanded Hardy to stop fighting. Hardy continued to struggle and Officer Wuorinen struck him with a flashlight on his left shoulder. Officer Wuorinen also commanded Hardy to spit out whatever was in his mouth. As Hardy continued to struggle, Officer Payne pulled out his mace and sprayed Hardy in the face. Within seconds, Hardy started coughing and spitting out 13 crack cocaine pellets wrapped in plastic. The officers then handcuffed Hardy and searched him. Officer Wuorinen recovered the crack pellets from the ground and later, at the police station, informed Hardy that he was under arrest for possession of a controlled substance.

When reviewing a challenge under the Fourth Amendment of the United States Constitution on undisputed facts, the reviewing court may independently analyze the facts to determine whether evidence needs to be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). The Fourth Amendment and Art. I, sect. 10 of the Minnesota Constitution protect the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy. See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811-12, 90 L.Ed.2d 210 (1986). In Schmerber v. California, the Supreme Court recognized that individuals have a legitimate privacy interest protecting "searches involving intrusions beyond the body's surface." 384 U.S. 757, 769-70, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966).

The court of appeals reasoned that the officer's request that Hardy open his mouth did not constitute a search because the request was no more intrusive than an ordinary passerby's engaging Hardy in conversation and telling him to speak more clearly. The court noted that there was no evidence that the officer meant for Hardy to submit to a closeup visual inspection.

However, Hardy points out that the police officer, unlike a passerby, had an investigatory purpose in asking Hardy to open his mouth--to look for the presence of drugs. This purpose is evidenced by Officer Wuorinen's testimony that he and other officers often engage suspects in conversation "to see if they have an object in their mouth." Therefore, Hardy argues that this intrusion was no mere request, but an attempt to search his mouth. Hardy also argues that the intrusiveness of the request was demonstrated by the manner in which it was carried out; the police first directed him to open his mouth, then forced him to do so. His assertion that the attempted search continued unabated up to the police officers' use of force is supported by the fact that just prior to macing Hardy, the police ordered him to spit out whatever was in his mouth.

In contrast, the state argues that Officer Wuorinen's request did not constitute an actual search for which probable cause was required. Rather, the state contends that the request that Hardy open his mouth was a reasonable extension of the officers' investigation once they noticed that Hardy appeared to have an object in his mouth and after they saw Hardy tighten his neck muscles as if to swallow it. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (holding that police officers may talk to citizens and investigate suspicious behavior without probable cause). The state argues that Hardy's actions were openly observable and that police officers cannot be expected to ignore actions that could have been observed by any member of the public. See California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30 (1988). The state further contends that the request itself was not accompanied by physical force or intimidation.

The issue of whether a police officer's order or request for an individual to open his or her mouth constitutes a search of the body is...