State v. Krenik, No. A08-1851.

• Decision Date: 27 October 2009
• Docket Number: No. A08-1851.
• Citation: 774 N.W.2d 178
• Parties: STATE of Minnesota, Respondent, v. Kellie Jo KRENIK, Appellant.
• Court: Minnesota Court of Appeals

774 N.W.2d 178

STATE of Minnesota, Respondent, v. Kellie Jo KRENIK, Appellant.

No. A08-1851.

Court of Appeals of Minnesota.

October 27, 2009.

Lori Swanson, Attorney General, St. Paul, MN, Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, MN, for respondent.

Seamus R. Mahoney, St. Paul, MN, for appellant.

Considered and decided by ROSS, Presiding Judge; PETERSON, Judge; and SCHELLHAS, Judge.

OPINION

PETERSON, Judge.

In this appeal from a conviction of a first-degree controlled-substance offense, appellant Kellie Krenik argues that the district court erred in denying her motion to suppress evidence of drug possession found during a pat search and a vehicle search that were conducted after police directed her to get out of her vehicle, which she had been riding in as a passenger when it was stopped by police for a traffic violation. We affirm.

FACTS

Officer Grant Dattilo stopped Krenik's vehicle for failing to signal a lane change and for having an object suspended from the rearview mirror. Krenik was the front-seat passenger in the vehicle, which was being driven by Krenik's friend, Deborah Etoll. Etoll told Dattilo that she did not have her driver's license with her, but she gave him her full name so that he could check her driver's license status. Krenik gave Dattilo proof of insurance for the vehicle. Dattilo returned to his squad car and learned that Krenik was the registered owner of the vehicle and that the proof of insurance was valid. He also learned that Etoll's driver's license had been suspended.

Dattilo returned to the stopped vehicle and asked "Etoll to step out of the vehicle and to meet [him] back by [his] squad car so [they] could talk about her driver's license status." He asked Etoll why she was driving Krenik's vehicle, and she explained that Krenik had had a miscarriage earlier in the day, that Krenik was distraught, and that Etoll felt that it would be safer for her to drive. Dattilo issued Etoll a citation for driving on a suspended license and told her to remain seated on the curb while he returned to the stopped car to speak with Krenik.

Another officer, Erin Reski, had arrived at the scene, and the officers approached the passenger's side of the vehicle together. Dattilo had already asked Krenik if she needed medical assistance, and she had told him that she did not. The passenger's window was down, and Dattilo testified that he "told [Krenik] that [the officers] were going to have her take a step out of [the] vehicle." He testified that the officers asked Krenik to step out of the vehicle because Etoll would not be able to drive due to her suspended license and the officers "wanted to make sure that it was safe for [Krenik] to drive for her own sake and for the sake of the general public." Reski testified that they asked Krenik to exit the vehicle because Krenik appeared very "distraught" and that "it was obvious [that the officers] needed to check her mental status and her safety to make sure she was okay to be driving." Reski also testified that Krenik was "unable to answer any of the questions [Reski] was asking." The officers knew that Krenik had a valid driver's license.

When Dattilo told Krenik to step out of the vehicle, he also told her to keep her hands out of her pockets. As Krenik stepped out of the vehicle, Reski noticed "a larger, bulky object" in the front pouch-pocket of Krenik's sweatshirt. About five seconds after Krenik stepped out of the vehicle, she put her hands in the front pocket. Dattilo told her to remove her hands from her pocket. Reski then determined that for the officers' safety, she should perform "a quick frisk to make sure the area where [Krenik's] hands were [did not have] weapons." Reski explained that she "went straight for the front pouch just because that was the most central location for [Krenik's] hands."

Reski testified during direct examination that as she patted the outside of Krenik's pocket she "could feel a smoking glass tube." From her prior experience, she recognized "that to be a smoking tube from—use that with narcotics." After feeling the tube, Reski reached into Krenik's pocket and removed it; it was a type of pipe used for smoking narcotics. Dattilo saw burn marks on the pipe. Reski then removed from Krenik's pocket a container labeled as Johnson & Johnson baby wipes. Reski testified that the container was approximately six by two or three inches, and that "[d]ue to its size, it could be used to hold ... a smaller caliber handgun [or] a knife." When she opened the container, she found a substance that appeared to be methamphetamine.

During cross-examination, Reski admitted that when she felt the outside of Krenik's pocket, she was not certain that the tube was a pipe for smoking narcotics. The following exchange occurred between Krenik's attorney and Reski.

Q: ... So you feel a tube with a small bulb at the end of it, right?

A: Correct.

Q: Now, you didn't know what that was at the time, right?

A: Correct.

Q: You weren't sure, correct?

A: Correct.

Q: Okay. It could have been a glass pipe as it turned out to be, right?

A: Affirmative.

Q: Okay. It could have been something else, right?

A: It could have been.

After discovering the contraband, Reski arrested Krenik for possession of a controlled substance. Because there was no other licensed driver at the scene, the officers decided that the vehicle had to be towed. Reski conducted an inventory search of the vehicle and discovered a black purse in the passenger compartment that contained "small baggies, commonly used to package narcotics." She also found a scale in the purse and a second scale in the vehicle.

Krenik moved to suppress the evidence discovered in her pocket and in the vehicle. After Dattilo, Reski, Etoll, and Krenik testified at the hearing on the motion, the district court orally ruled that the traffic stop and the pat search were lawful and that Reski lawfully seized the glass pipe from Krenik's pocket because "the plain-feel exception is valid in Minnesota" and Reski "certainly [had] a basis to suspect that was a crack pipe based on her training and experience." The district court reasoned that after seizing the pipe and seeing drug residue, Reski could lawfully search the baby-wipe box that she felt in Krenik's pocket because it "could hold an illegal substance" and possibly "a weapon that could have been of danger to the officers." But the district court declined to rule on the suppression motion from the bench, stating that "the most important issue in this case is whether or not [the officers] could ask [Krenik] to get out of the car" because "once she was out of the car and [the officer] saw the bulge then things went downhill from there."

The district court later filed a written order addressing the unresolved issue from the hearing. The court concluded "that an officer may ask a passenger to exit a lawfully stopped vehicle" and that "an officer can lawfully make this request without any particular justification." The court also noted that in Krenik's case, the officers "had a reason to ask [her] to step out of [her] car; they were concerned about her physical and emotional ability to drive the car." The district court concluded that it was reasonable for the officers to ask Krenik to exit the vehicle because they had "to fully assess the situation and dispel any concerns for the safety of [Krenik] and the public." Accordingly, the district court denied Krenik's motion to suppress.

ISSUES

I. Does a police officer need an individualized justification for directing a passenger in a legally stopped vehicle to get out of the vehicle?

II. Was the identity of the item that the officer felt in Krenik's pocket during the pat search sufficiently apparent to apply the plain-feel exception to the warrant requirement?

ANALYSIS

Krenik challenges the district court's determination that the officers had a legal basis to seize and search her. She contends that the seizure was unreasonable under the Fourth Amendment and also under Article I, section 10, of the Minnesota Constitution and that even if the seizure and pat search did not violate her constitutional rights, the contraband discovered during the pat search must be suppressed because the district court erroneously applied the plain-feel doctrine.

I.

"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). The district court's findings of fact are reviewed for clear error. State v. Lee, 585 N.W.2d 378, 383 (Minn.1998).

The United States and Minnesota Constitutions guarantee individuals the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In interpreting Article I, section 10, of the Minnesota Constitution, the Minnesota Supreme Court has explicitly adopted the principles and framework of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for evaluating the reasonableness of seizures during traffic stops when a minor law has been violated. State v. Askerooth, 681 N.W.2d 353, 363 (Minn.2004).

A Terry analysis involves a dual inquiry. First, we ask whether the stop was justified at its inception. Second, we ask whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.

Id. at 364 (citations omitted).

"An intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 unless there is independent probable cause or reasonableness to justify that particular intrusion." Id.

The basis for intrusion must be reasonable so as to comply with article I, section 10's general proscription against unreasonable searches and seizures....