State v. Harris

Decision Date11 March 1999
Docket NumberNo. C1-97-2,C1-97-2
PartiesSTATE of Minnesota, Respondent, v. Oluseyi HARRIS, petitioner, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

A passenger on a bus, which is on a scheduled stopover, is not per se seized for purposes of Article I, Section 10 of the Minnesota Constitution when police officers board the bus and announce their intent to search for controlled substances.

A passenger on a bus, which is on a scheduled stopover, is not seized for purposes of Article I, Section 10 of the Minnesota Constitution when a police officer approaches the passenger and asks permission to search his person and his bag.

Evidence was sufficient to establish that defendant voluntarily consented to police officer's request to search his person and his bag.

A police officer had reasonable articulable suspicion that a passenger on a bus was transporting a controlled substance when the officer found plastic bindles in the passenger's bag which the officer knew from his police training and experience to be used in the packaging and sale of controlled substances.

A passenger on a bus is seized for purposes of Article I, Section 10 of the Minnesota Constitution when an officer finds plastic bindles in the passenger's bag and begins to ask the passenger particularized questions concerning the passenger's involvement in the transportation of a controlled substance.

Evidence was not sufficient to establish that defendant voluntarily consented to police officer's request to search his person for the second time.

A police officer had reasonable articulable suspicion that defendant was armed and dangerous when defendant acted nervously, tried to hide his arm from the officer's view, and stated that he did not know what was in his jacket sleeve, which sleeve contained a visible bulge.

When a police officer had reasonable articulable suspicion that a defendant might be armed and dangerous, the fact that police officer searched defendant's jacket from inside the sleeve pursuant to defendant's apparent consent was not grounds for suppressing evidence--discovery of evidence was inevitable because, absent defendant's apparent consent, officer could have conducted a protective pat down search of defendant's outer clothing and would have discovered marijuana in the course of protective search.

Steven P. Russett, Assistant State Public Defender, St. Paul, for appellant.

Michael Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAUL H. ANDERSON, Justice.

Oluseyi Harris appeals his conviction for fifth-degree possession of a controlled substance with intent to distribute. Saint Paul narcotics officers arrested Harris in the course of a drug interdiction operation at the Saint Paul Greyhound Bus Depot. At the time of his arrest, Harris was a passenger on an interstate bus that had made a scheduled stopover in Saint Paul. During the stopover, Harris exited the bus, entered the depot, acted in a manner that the narcotics officers characterized as suspicious, and then reboarded the bus. The officers followed Harris onto the bus and asked for consent to search his person, his carry-on bag, and then his person for a second time. Harris complied with each of these requests to search. During their searches, the officers found marijuana and marijuana packaging materials. They then arrested Harris and charged him with possession of a controlled substance with intent to distribute.

Harris sought to suppress all evidence gathered against him on the grounds that: (1) under the Minnesota Constitution, he was illegally seized when the officers boarded the bus and (2) he did not consent to the searches. The district court denied Harris' request, holding that the searches were consensual and that there was no illegal seizure. The court went on to state that, even if Harris did not consent to the searches, the evidence was still admissible because the officers had reasonable articulable suspicion that Harris was transporting a controlled substance. The Minnesota Court of Appeals affirmed, holding that Harris consented to the searches and that the officers had reasonable articulable suspicion. But the court of appeals concluded that the officers seized Harris when they confronted him at his seat in the bus. We affirm, but on different grounds.

In an effort to curb the flow of controlled substances coming into Saint Paul from other states, members of the Saint Paul Police Department's narcotics unit periodically engage in drug interdiction operations. These drug interdiction operations often target buses arriving from or leaving for Detroit, Chicago, Madison, or Minneapolis. Two or three narcotics officers, plainclothes K-9 officers with dogs trained to detect controlled substances, and uniformed officers are usually involved in each interdiction. According to one of the officers who arrested Harris, officers involved in interdictions generally look for persons who get off the bus with only a small carry-on bag or with no luggage at all, look around to see if any police and drug dogs are present, enter the bus depot, and appear extremely nervous. Sometimes these persons make a telephone call, leave the depot by another means of transportation, or reboard the bus.

Officers Michael Bratsch and John Pyka are members of Saint Paul's narcotics unit. Bratsch has been a Saint Paul police officer for eight years and regularly participates in the police department's bus-based drug interdictions. In describing the process he uses as an interdiction officer, Bratsch explained that he does not use warrants to perform these interdictions because "[i]t's all consensual." When Bratsch believes that a bus passenger may be transporting a controlled substance, Bratsch and another officer first approach the passenger. Bratsch then shows his badge to the passenger, introduces himself as a Saint Paul narcotics officer, and explains to the passenger that Saint Paul is experiencing problems with narcotics entering the city via the bus. Bratsch next asks the passenger if he or she is transporting any narcotics, weapons, or large amounts of currency and then advises the passenger that any cooperation is purely consensual. At this time, Bratsch also requests permission to search the passenger. If the passenger consents to this search, Bratsch asks for permission to search the passenger's bags as well. According to Bratsch, approximately 99% of passengers he approaches during these interdictions consent to his requests to search their persons and bags.

At trial, Harris stipulated to the facts of his arrest as set out in the court file, which file included Bratsch's and Pyka's police reports, and to Bratsch's pretrial Rasmussen hearing testimony. These stipulated facts as set forth below are critical to our analysis of the legal issues raised in this case. On the morning of May 23, 1996, Bratsch and Pyka were on duty at the Saint Paul Greyhound Bus Depot, investigating information provided to them by a concerned citizen that controlled substances were being transported on buses traveling between Chicago and Minneapolis. When a Greyhound bus traveling from Chicago to Minneapolis made a scheduled stopover at the depot at approximately 10:30 a.m., Bratsch and Pyka observed appellant Oluseyi Harris and another man exit the bus and enter the depot. Another plainclothes officer, but no uniformed officers, were present in the depot at that time. It also appears that a K-9 officer and his dog were present in the depot. Pyka told Bratsch that Harris and the other man were conducting "counter surveillance" in the depot. Bratsch then observed what he, as a result of his police training, described as counter surveillance activities. He described the activities as follows:

They got off the bus. They kind of looked around to see who's inside the depot. They didn't use a phone. They didn't get a can of pop. They wanted to see who was around and they boarded the bus * * * [I]t appeared to me that they wanted to see who was inside. They were kind of looking at us, um, looking at Sergeant Pica [sic], um, looking at the dog.

Bratsch stated that, unlike Harris, no other passengers who exited the bus appeared to be as concerned with the presence of Bratsch, Pyka, and the narcotics dog.

After Harris and the other man reboarded the bus, Bratsch and Pyka also boarded the bus. Bratsch stated that he walked to the rear of the bus, stood in the middle of the aisle, and showed his badge to all the passengers. Bratsch then told all the passengers that there was a drug problem in Saint Paul, that many narcotics were entering the city from cities outside Minnesota via bus, and that he and Pyka would like to speak with them individually to inquire whether anyone might be transporting any weapons, narcotics, or large amounts of currency. Bratsch testified that he was "pretty sure" that he then informed the passengers that "this is consensual." Both Bratsch and Pyka were in plainclothes and, while both were armed, neither displayed his weapon to any of the passengers.

Bratsch next approached Harris, who had chosen to sit in the back row of the bus. Harris stands approximately 5'7" tall and weighs around 145-150 pounds. Bratsch stands 5'9" tall and weighs approximately 200 pounds. Bratsch first asked Harris where he was coming from, where he was going, and how old he was. Bratsch then advised Harris that "this was all consensual" and asked Harris if Harris was transporting any narcotics, weapons, or large amounts of currency. Harris responded that he was not. In a "low key * * * easy-going tone," Bratsch next asked for permission to search Harris' person. According to Bratsch, Harris consented to this search. Bratsch then conducted a thorough pat-down search of Harris' person, including the outsides of...

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