State v. Neumann, No. A03-1941 (MN 11/9/2004), A03-1941.
| Decision Date | 09 November 2004 |
| Docket Number | No. A03-1941.,A03-1941. |
| Parties | State of Minnesota, Respondent, v. Anthony James Neumann, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Houston County, File No. K6-02-299.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, and
Richard W. Jackson, Jr., Houston County Attorney, Houston County Courthouse, (for respondent)
Mark D. Nyvold, (for appellant)
Considered and decided by Randall, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.
UNPUBLISHED OPINION
In this appeal from a conviction of two counts of unlawful possession of a controlled substance and failure to affix tax stamps, appellant challenges the district court's refusal to suppress all evidence and dismiss the charges. Appellant argues that the traffic stop, request to see the concealed object in the back seat, pat-down search, and search of appellant's car were in violation of his constitutional rights and, thus, the evidence obtained should be suppressed. Because we conclude that the district court did not err in denying appellant's request to suppress the evidence and dismiss the charges, we affirm.
Minnesota State Patrol Officer Kelley McGraw, while traveling on a two-lane gravel road, observed a passenger car, which was driving behind a pickup truck, pull into the opposing lane to pass the pickup truck. The pickup truck driver then turned on his left turn signal. Trooper McGraw testified that there was sufficient time for the passenger car to pull behind the pickup truck and wait for it to complete its turn. But, instead, the car accelerated and passed the pickup truck.
Trooper McGraw turned on the emergency lights and activated an in-car camera, which is located along the top of the windshield and to the right of the rearview mirror. Before the car pulled over, Trooper McGraw observed the "driver nearly climb out of the driver's seat placing something or retrieving something from the back seat and then leaning back in." This furtive movement made Trooper McGraw concerned for his safety. When the car stopped, Trooper McGraw approached and noticed there was a distorted shape under a sweater in the back seat — located in the same area as the driver made the furtive movement.
Trooper McGraw also noticed that the driver's window was rolled down only three inches, enough for the driver, appellant Anthony James Neumann, to hold out his license and insurance card. Appellant was avoiding eye contact, but the trooper observed that appellant had reddened eyes and dilated pupils. In addition, appellant was taking heavy drags off a freshly lit cigarette and in between drags was breathing heavy. The passenger in the car had a cigarette in her hand, another partially smoked cigarette was still burning in the ashtray, and the ashtray was full of cigarettes butts. Based on his training, Trooper McGraw was aware that cigarette smoke is used to mask the odor of alcohol and narcotics.
Trooper McGraw asked appellant what he had hidden in the back seat. Appellant denied having hidden anything. After several such exchanges, Trooper McGraw said he would give appellant one more opportunity to show him what was under the sweater before the drug detection canine was called to the scene. Appellant, after responding "if I show you what it [is] will you be happy?" reached back and produced a pickle jar from under the sweater. The jar contained a small amount of marijuana. Trooper McGraw then wrote tickets for possession of a small amount of marijuana and drug paraphernalia. He then had appellant exit the car and performed a pat-down search. Following the search, appellant was placed under arrest and Trooper McGraw searched the trunk of appellant's car. Ten one-gallon zip-locked bags of marijuana were inside a green bag in the trunk.
At a contested omnibus hearing, appellant's motion to suppress all evidence seized from the car was denied. The parties agreed to a Lothenbach trial, and appellant was found guilty of possession of marijuana with intent to sell in violation of Minn. Stat. § 152.025, subd. 1(1) (2000); possession of marijuana in violation of Minn. Stat. § 152.025, subd. 2(1) (2000); and failure to affix tax stamps in violation of Minn. Stat. § 297D.09, subd. 1 (2000). This appeal followed.
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. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004); State v. Harris, 590 N.W.2d. 90, 98 (Minn. 1999). This court accepts the district court's findings of fact unless they are clearly erroneous, giving due weight to the inferences drawn from those facts by the district court. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000); State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998). The legality of a limited investigative stop and questions of reasonable suspicion are reviewed de novo. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003) (citing State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999)).
Appellant first challenges the traffic stop of his car, arguing that Trooper McGraw acted on a mere whim. We find this argument to be without merit. A police officer may make an investigative stop of a motor vehicle if the officer has a specific and articulable basis to suspect that the driver has violated a traffic law. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). An actual violation of the vehicle and traffic laws is not required. Marben v. Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). "The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). Unsafe passing is a violation of Minn. Stat. §§ 169.13, subd. 2, and .18, subd. 3(1) (2000). Minn. Stat. § 169.13, subd. 2, states "[a]ny person who operates or halts any vehicle upon any street or highway carelessly . . . or in a manner that endangers or is likely to endanger any property or any person . . . is guilty of a misdemeanor." Similarly, a hazardous pass violates Minn. Stat. § 169.18, subd. 3(1), because "the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance."
Here, the trial court credited Trooper McGraw's testimony that he observed appellant pull into the opposing lane of a two-lane gravel road preparing to pass the pickup truck, that after the pickup truck turned on its left turn signal appellant had sufficient time to yield to the pickup truck by pulling behind the pickup truck and waiting for the pickup truck to complete its turn, and that, instead, appellant accelerated and passed the signaling pickup truck, which turned left immediately after appellant overtook it. Thus, there was sufficient evidence to support the determination of the trial court that the pass of the pickup truck was hazardous and the stop of appellant's car was justified.
Appellant next argues that because the videotape taken by the dash-mounted camera in the trooper's vehicle did not clearly show appellant move his arm back and to the right, the trial court erred in finding that appellant made a furtive movement. We find no error. This court accepts the district court's findings of fact unless they are clearly erroneous. Britton, 604 N.W.2d at 87. Furthermore, this court defers to the fact-finder ondeterminations of credibility. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). The trial court, in determining that appellant made a furtive movement, assessed the credibility of Trooper McGraw's testimony. The overall quality of the videotape is poor, but nonetheless it supports the court's finding, because it shows appellant make some movements. As respondent notes, it is possible that Trooper McGraw observed appellant's furtive movement before the in-car camera was activated and could detect and record the movement. Therefore, the trial court's finding that appellant made a furtive movement is supported by the record and is not clearly erroneous.
Appellant further argues that Trooper McGraw lacked reasonable, articulable suspicion to expand the scope of the initial traffic stop and request that appellant produce the item in the back seat. We disagree. Police officers may conduct a limited protective weapons search of a lawfully stopped person if they have reasonable suspicion to believe the person may be armed and dangerous. State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880). The same authority extends to a protective search of an automobile for weapons. State v. Waddell, 655 N.W.2d 803, 810 (Minn. 2003). In Waddell, the Minnesota Supreme Court applied Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983), holding that
[a] protective search of the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of a weapon.
"[P]olice officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality." Varnado, 582 N.W.2d at 889 (quotation omitted). The court considers the totality of the circumstances to determine whether a protective weapons search is reasonable. Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). In arriving at a reasonable...
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