State v. Martin, No. A08-1523 (Minn. App. 10/20/2009), A08-1523.

• Decision Date: 20 October 2009
• Docket Number: No. A08-1523.,A08-1523.
• Parties: State of Minnesota, Respondent, v. Geshik O Binese Martin, Appellant.
• Court: Minnesota Court of Appeals

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State of Minnesota, Respondent, v. Geshik O Binese Martin, Appellant.

No. A08-1523.

Court of Appeals of Minnesota.

October 20, 2009.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).

Appeal from the District Court, Beltrami County, File No. 04-CR-07-6055.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Timothy R. Faver, Beltrami County Attorney, Bemidji, MN (for respondent).

Marie L. Wolf, Interim Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, MN (for appellant).

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Schellhas, Judge.

UNPUBLISHED OPINION

ROSS, Judge.

Geshik Martin appeals his controlled-substance conviction, arguing that police unconstitutionally seized him after they stopped a car in which Martin was a passenger. Alternatively, Martin argues that he is entitled to a new trial because the district court committed reversible error by allowing the state's expert witness to testify about Martin's intent to sell the drugs. Because we conclude that the deputy's attempt to search Martin did not violate Martin's constitutional rights and because the district court did not abuse its discretion by allowing the challenged testimony, we affirm Martin's conviction.

FACTS

Beltrami County Deputy Lee Anderson stopped a red Chevrolet Tahoe travelling westbound on Paul Bunyan Drive in Bemidji in December 2007. He had noticed that the right front turn signal was damaged and he saw the Tahoe turn right into a parking lot without signaling. Deputy Anderson followed the Tahoe into the lot, activated his squad car's emergency lights, and directed the Tahoe to pull into a parking space.

Deputy Anderson approached the driver, Nicole Lussier, and discussed the traffic violation. Deputy Jamie Scherf arrived to assist. Deputy Scherf approached the passenger's side of the Tahoe, and he recognized the passenger as Geshik Martin, a local professional boxer. Deputy Scherf was eager to talk to Martin about Martin's boxing, but interest in conversation was one-sided. Martin answered questions very briefly, kept his hands in his lap or pockets, and looked forward without eye contact with Deputy Scherf. The deputy described Martin as being "kind of fidgety." Later at the omnibus hearing Deputy Scherf answered whether Martin's "fidgety" demeanor raised any concern, stating, "Typically when you talk to somebody, especially about a sporting event or something that they're in, I would think that they'd make eye contact and kind of make conversation about it, but he was not." The deputy did not state that he was concerned for his safety at that time, and he testified that he did not suspect Martin of any criminal activity.

While Deputy Scherf talked with Martin, Deputy Anderson discovered that Lussier lacked a driver's license and proof of insurance. He told Lussier that he was therefore impounding the Tahoe and directed her out of the vehicle. Deputy Scherf also told Martin "that the vehicle was going to be towed, and that he would need to step out of [it]." Martin complied. According to the prosecutor's argument to the district court, at that point Martin was no longer being detained but was "free to walk away."

Crucial to the issues raised on appeal, however, Martin did not immediately leave. Instead, when he exited the Tahoe, he walked toward its rear door. Deputy Scherf asked Martin what he was doing and Martin responded that he wanted to get his jacket from the rear seat. Deputy Scherf said that he would get the jacket. Deputy Scherf grasped the jacket, felt it, discovered a cell phone charger in its pocket, and handed the charger and jacket to Martin.

As Deputy Scherf handed the jacket to Martin, Martin removed his hands from the front pouch-pocket of his hooded sweatshirt to put the jacket on. Deputy Scherf then "noticed something bulky" inside the sweatshirt pouch-pocket. This bulge aroused the deputy's curiosity, and he told Martin to "just wait for a minute." Deputy Scherf then "reached for [Martin's] front pocket." He later explained that he was "unsure" what the bulky item was and wanted to "basically just kind of find[] out what it was." Martin reacted to the deputy's reach by backing up a few steps and asking, "Hey, what's going on?" Deputy Scherf told Martin, "[I want to] make sure what you have in your pockets, and I'm going to attempt a pat down on your outside." Martin said, "No," threw his jacket at Deputy Scherf, and ran away.

Deputy Scherf yelled for Martin to stop, but Martin kept running. Deputy Scherf pursued, and Martin reached into his pouch-pocket and threw something that "looked like confetti" into the snow. Deputies apprehended Martin in a nearby parking lot. They searched where Martin threw the confetti-like substance and discovered nine small packets of crack cocaine. They also searched Martin's person and found a significant amount of cash, most notably 29 $20 bills.

The state charged Martin with fleeing peace officers and with a third-degree controlled-substance crime (sale). Martin moved to suppress the drug evidence, arguing that it resulted from his being illegally seized. The district court denied the motion, concluding that the officer had a "reasonable and articulable suspicion that [Martin] had a weapon, justifying a pat down search of [Martin] for officer safety." The case proceeded to a jury trial with the critical issue being whether Martin intended to sell the drugs. Martin objected to the state's expert testimony regarding how the drugs were packaged and whether the cash and drugs that Martin possessed were "consistent with" drug sales. The district court allowed the testimony and the jury found Martin guilty. The district court sentenced Martin to 51 months in prison. This appeal follows.

DECISION

I

Martin first challenges the district court's denial of his pretrial motion to suppress evidence. This court reviews pretrial suppression rulings de novo, which permits an independent review of the evidence and a decision on whether suppression is warranted as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Martin argues principally that the drug evidence must be suppressed because Deputy Scherf detained him without a reasonable, articulable suspicion of criminal activity. The federal and state constitutions guarantee the right of persons not to be subjected to "unreasonable searches and seizures." U.S. Const. amend. IV; Minn. Const. art. I, § 10; see also Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)) ("[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot."). We first consider the nature of the seizure.

The Challenged Seizure

The state asserted to the district court that Martin was not being detained by the deputies after they ordered him from the car for its impoundment; this adds a wrinkle to this appeal, in which the state now bases its argument chiefly on the opposite assertion that Martin was being lawfully detained after he was ordered from the car. To counter Martin's pretrial argument, the state had contended that Deputy Scherf had not seized Martin because a reasonable person "would have believed that [he was] free to walk away from the encounter with [Deputy] Scherf."

Martin argues that Deputy Scherf "illegally seized Martin when he told Martin to `wait for a minute' because he was going to execute a pat-search." He contends that because this "wait-for-a-minute" seizure occurred after the traffic stop had ended, the seizure and pat-search were unlawful unless Deputy Scherf reasonably suspected Martin of criminal activity and suspected that Martin was armed and dangerous. The argument has some theoretical merit, but it ultimately fails on the facts and practical circumstances.

The district court did not expressly decide whether Martin continued to be seized after he stepped from the Tahoe. Instead, it skipped the seizure analysis and concluded that "[b]ased on [Martin's] demeanor and the bulky pocket area of [Martin's] sweatshirt, [Deputy] Scherf had reasonable and articulable suspicion that [Martin] had a weapon, justifying a pat down search of [Martin] for officer safety." Martin focuses on this issue because if a search or attempted search resulted from an unconstitutional seizure, the evidence that it produced is subject to suppression as "fruit of the poisonous tree." See State v. Bergerson, 659 N.W.2d 791, 797 (Minn. App. 2003) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)) (stating that evidence obtained through an illegal seizure is "fruit of the poisonous tree" and generally inadmissible to support a conviction).

The state asserts that because Martin was lawfully seized when police stopped the Tahoe for an equipment violation, the traffic stop was still ongoing at the time of the attempted search and the search was justified because Deputy Scherf had a reasonable suspicion that Martin was armed and dangerous. Because the circumstances of the stop and attempted search are not disputed and the record is complete, we can determine whether a seizure occurred even though the district court did not. See State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003) ("While the district court did not make specific findings with respect to whether Fort was seized . . . we can make that determination based on the record before us."). A person is seized "when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). If police officers "convey a message...