State v. Ortega, No. A07-22.

• Decision Date: 30 July 2009
• Docket Number: No. A07-22.
• Parties: STATE of Minnesota, Respondent, v. Danny ORTEGA, Appellant.
• Court: Minnesota Supreme Court

770 N.W.2d 145

STATE of Minnesota, Respondent, v. Danny ORTEGA, Appellant.

No. A07-22.

Supreme Court of Minnesota.

July 30, 2009.

Lawrence Hammerling, Chief Appellate Public Defender, Theodora Gaïtas, Assistant State Public Defender, St. Paul, Minnesota, for appellant.

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, Minnesota; and Ross Arneson, Blue Earth County Attorney, Mankato, Minnesota, for respondent.

OPINION

PAGE, Justice.

Appellant Danny Ortega was charged with one count of fifth-degree cocaine possession under Minn.Stat. § 152.025, subd. 2(1) (2008). Before trial, Ortega moved to suppress all evidence of his narcotics possession, contending that the evidence was the product of an illegal search and seizure. After a contested omnibus hearing, the district court denied Ortega's motion. Using the procedure approved in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980),¹ Ortega stipulated to the evidence against him. The district court found him guilty. The court of appeals affirmed his conviction. See State v. Ortega, 749 N.W.2d 851 (Minn.App.2008). We affirm.

On August 7, 2004, State Trooper Chad Mills, accompanied by a certified drugsniffing dog, stopped a vehicle driven by Lorna Sorg for speeding and because the vehicle did not display a front license plate. Ortega was a passenger in the front seat of the vehicle. While speaking to Sorg, Mills became suspicious of criminal activity because Sorg appeared "overly nervous," with the pulse in her neck visible, and constantly smoked, while Ortega looked straight ahead and avoided looking at Mills. Mills also smelled the faint odor of burnt marijuana.

After Mills checked Sorg's license plate and driver's license, he asked Sorg to get out of the vehicle so that he could question her without Ortega present. Sorg denied any drug use in the vehicle, but when asked about marijuana she was silent, looked at the ground, and rubbed her arms. After returning Sorg's driver's license and giving her a warning about the license plate, Mills asked for consent to search the vehicle. Sorg consented, and Mills directed Sorg to stand at the front of the vehicle. Mills then went around to the passenger side and had Ortega get out. At the omnibus hearing, Ortega stated that when he got out of the vehicle he felt as if he could leave the scene because he did not think he had done anything wrong, but that he decided to stay and follow Officer Mills' instructions. Mills testified that Ortega was not free to leave and that when he asked Ortega to step out of the vehicle, he intended to keep Ortega at the scene while he conducted the vehicle search.

Both Mills and Ortega testified that Ortega voluntarily gave Mills a folded pocketknife. Ortega testified at the omnibus hearing that he took a small amount of marijuana out of his pocket and handed it to Mills at the same time that he gave Mills the pocketknife because he figured Mills would find the marijuana during the frisk. Consistent with Ortega's testimony, Mills testified at the omnibus hearing that Ortega handed him the marijuana. After the weapons frisk, Mills instructed Ortega to stand at the front of Sorg's vehicle for safety reasons while Mills searched the vehicle. At some point, Mills also called for back-up.

Mills used the drug-sniffing dog to search the vehicle; the dog alerted on the driver's side front floor, the center console, and the seat on which Ortega had been sitting. Mills found $295 in cash in Sorg's purse, which was on the driver's side front floor, and a rolled-up dollar bill in the center console cup holder. The dollar bill contained a white powdery residue that field-tested positive for cocaine. Mills did not find anything on the front passenger seat. According to Ortega, after completing the search of the vehicle, Mills informed Sorg and Ortega that they were under arrest. Mills then searched Sorg, who, during the search, admitted to using cocaine several days earlier but denied knowing anything about the cocaine on the dollar bill. Mills subsequently handcuffed Sorg and placed her in his squad car.

According to his police report, Mills, based on the odor of marijuana, the marijuana found on Ortega, and the dog alert on Ortega's seat, searched Ortega a second time. At the omnibus hearing, Mills described this search of Ortega as a "[p]robable cause for narcotics" search. During this search, Mills found a dollar bill containing cocaine in Ortega's back pocket and $253 in Ortega's wallet.

As a result of the cocaine found during the second search, Ortega was charged with one count of fifth-degree cocaine possession under Minn.Stat. § 152.025, subd. 2(1). Before trial, Ortega moved to suppress all evidence of his narcotics possession, contending that the evidence was the product of an illegal search and seizure. Ortega also moved to have the complaint against him dismissed for lack of probable cause. After the district court denied Ortega's motions, Ortega stipulated to the evidence using the procedure approved in State v. Lothenbach, and the district court found him guilty. The district court sentenced Ortega to one year and one day in prison, but stayed the execution of his sentence for five years.

On appeal to the court of appeals, Ortega argued (1) that Mills unlawfully expanded the scope of the traffic stop by requesting Sorg's consent to search the vehicle and (2) that the second search of his person was unconstitutional. Ortega, 749 N.W.2d at 853-54. The court of appeals affirmed, concluding that Sorg's nervousness and the odor of marijuana justified Mills' request to search the vehicle and that either the odor of marijuana or the amount of marijuana that Ortega handed to Mills provided "probable cause to search" Ortega.² Id. at 854.

On appeal to us, Ortega contends that the cocaine found during Mills' second search should be suppressed because it was the product of an illegal search. He also argues that there was no basis for Mills to conduct the weapons frisk³ or to detain him during the vehicle stop.

I.

When reviewing a district court's pretrial order on a motion to suppress evidence, "we review the district court's factual findings under a clearly erroneous standard and the district court's legal determinations de novo." State v. Jordan, 742 N.W.2d 149, 152 (Minn.2007). We may independently review facts that are not in dispute and "determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). Because Ortega stipulated to the evidence against him using the procedure approved in State v. Lothenbach, our review is further limited to the pretrial order that denied Ortega's motion to suppress. State v. Busse, 644 N.W.2d 79, 88-89 (Minn.2002).

Ortega argues that the search that uncovered the cocaine in his back pocket was unconstitutional. Both the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution guarantee the "right of the people to be secure in their persons, houses, papers, and effects" against "unreasonable searches and seizures." Warrantless searches are generally unreasonable unless they fall within a recognized warrant exception. State v. Burbach, 706 N.W.2d 484, 488 (Minn.2005). "One exemption from the warrant requirement is that a person's body and the area within his or her immediate control may be searched incident to a lawful arrest." State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). We conclude that the cocaine found in the vehicle provided probable cause to arrest Ortega and thus search him incident to his arrest.

There is probable cause to arrest without a warrant when a person of ordinary care and prudence, viewing the totality of circumstances objectively, would entertain an honest and strong suspicion that a specific individual has committed a crime. In Re Welfare of G.M., 560 N.W.2d 687, 695 (Minn.1997). The crime for which probable cause exists must be one for which a custodial arrest is authorized. State v. Varnado, 582 N.W.2d 886, 892 (Minn.1998). Cocaine possession is such a crime. Minn.Stat. § 152.025, subd. 3.

A person may constructively possess contraband jointly with another person. State v. Lee, 683 N.W.2d 309, 316 n. 7 (Minn.2004) (explaining that if the police find the contraband in a place where others have access, the constructive-possession doctrine requires "a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it"). But mere proximity to criminal activity does not establish particularized probable cause that a person is engaged in criminal activity. See Ybarra v. Illinois, 444 U.S. 85, 90-92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (concluding that a search warrant for a tavern and bartender did not permit police to search patrons). In State v. Slifka, 256 N.W.2d 90, 91 (Minn.1977), we held that a passenger's mere presence in a motor vehicle did not provide the officer probable cause to believe the passenger constructively possessed marijuana discovered in a closed glove compartment.⁴

When the evidence recovered by officers indicates that a vehicle's occupants were engaged in common criminal enterprise, the officer may have probable cause to arrest a passenger in a vehicle. Maryland v. Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). In Maryland v. Pringle, the United States Supreme Court found particularized probable cause to arrest a front-seat passenger when a consented-to search of the vehicle uncovered $763 of rolled-up cash in the glove compartment and five plastic glassine bags of cocaine in between an armrest and the back seat of the car. Id. at 371-72, 124 S.Ct. 795. In upholding the search, the court noted that drug dealers do not usually include innocent persons in their activity, that the evidence...