State v. Varnado

• Decision Date: 06 August 1998
• Docket Number: No. C7-97-960,C7-97-960
• Citation: 582 N.W.2d 886
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Beverly Ann VARNADO, petitioner, Appellant.

Page 886

582 N.W.2d 886

STATE of Minnesota, Respondent, v. Beverly Ann VARNADO, petitioner, Appellant.

No. C7-97-960.

Supreme Court of Minnesota.

Aug. 6, 1998.

Syllabus by the Court

1. During a routine stop for a minor traffic violation, police officers may not frisk the motorist for weapons unless some additional suspicious or threatening circumstances are present supporting a reasonable 2. Police officers may not circumvent the reasonableness requirement of the Fourth Amendment by requiring a minor traffic violator to sit in the squad car and then frisk the violator before getting into the squad.

basis to believe that the motorist may be armed and dangerous.

3. A search incident to arrest is valid only if the crime initially giving rise to the arrest is a crime for which a custodial arrest is authorized.

Kevin A. Lund, Rochester, for Appellant.

Hubert H. Humphrey, III, Attorney General, State of Minnesota, Raymond F. Schmitz, Olmsted County Attorney by David S. Voigt, Assistant County Attorney, Rochester, for Respondent.

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

OPINION

TOMLJANOVICH, Justice.

We must determine whether one of the well-established exceptions to the Fourth Amendment's search warrant requirement applies to the frisk that occurred in this case. Two officers stopped respondent Beverly Ann Varnado for driving a car with a cracked windshield as she pulled into a parking lot of an apartment complex that is known for drug trafficking. Varnado was alone, cooperative, and did not engage in behavior evoking suspicion that she may be armed or engaged in criminal activity. Nonetheless, after discovering that Varnado did not have her driver's license with her, one of the officers asked her to sit in the squad car and frisked her before she could get into the squad. We hold that under these facts, no exception to the warrant requirement applies and therefore the frisk was unlawful.

On November 1, 1996, Police Officer Mark Nunemacher and Reserve Officer Scott Oesterlin were in a marked squad car patrolling near the Eastridge Estates apartment complex (Eastridge) in Rochester. Both officers were assigned to that area due to suspected drug trafficking at Eastridge. According to Nunemacher, Eastridge is in a high-crime area known for drug trafficking, violence, and weapons. At about 9:30 p.m., Nunemacher and Oesterlin observed a car with a shattered windshield pull into the Eastridge parking lot. Nunemacher recognized the car as belonging to a woman whom he knew did not have a valid driver's license and whom he suspected sold drugs out of an apartment at Eastridge. Without making any evasive actions, the driver of the car, who was alone, parked in the space normally used by the woman who owned the car. Because of the cracked windshield, Nunemacher activated his squad car lights, and parked behind the car.

Nunemacher got out of the squad and walked to the driver's side of the car while Oesterlin approached the passenger side. At the same time, the driver was getting out of the car and was about to stand up when Nunemacher asked her if she was the owner of the car. She responded that she was Beverly McDonald, the car owner's sister. The driver was later identified as Beverly Varnado, the car owner's sister, but whom Nunemacher had never encountered before. Nunemacher asked Varnado for her driver's license or some other form of picture identification. Varnado fully cooperated with Nunemacher. When Varnado said she did not have any identification with her, Nunemacher asked her to sit in the backseat of the squad car while he checked the status of her driver's license.

But before Varnado got into the squad car, Nunemacher frisked her. Nunemacher testified that he always frisks people before placing them in the back of his squad car. He did not find any weapons when he checked the leather jacket Varnado was wearing. He then lifted her jacket and saw a large bulge in her right front pants pocket. The bulge in the top portion of her pocket was smooth and there was another bulge beneath it that had a textured look to it. Nunemacher testified that the lower part of the bulge was visually consistent with how crack cocaine would look in the pocket. When Nunemacher asked Varnado what it was she said it was her rent money and she moved her hand toward her pocket. Nunemacher pulled her hand away and then patted the pocket.

Nunemacher testified that the top of the bulge did not feel like it was a weapon and it could have been an extremely large amount of money. He then patted the lower portion of Varnado's pocket. It felt like small individual "rocks" that were wrapped, which, through his experience as a police officer, he strongly suspected was crack cocaine. He asked Varnado, "Is this your dope?" Without denying that it was dope, Varnado said "No, that's not mine." Nunemacher then reached inside Varnado's pocket and removed $2,000 in cash and a small bag containing individual packages of crack cocaine. Nunemacher arrested Varnado for possession of a controlled substance.

Varnado moved the district court to suppress the crack cocaine as a fruit of an illegal search. The court granted her motion, concluding that Nunemacher did not have a sufficient basis to conduct the pat-down search of Varnado. Consequently, the court dismissed the complaint for lack of probable cause. The court denied the state's subsequent motion to reconsider noting that Nunemacher's actions, "although arguably justified as a search incident to arrest, are pretextual in nature and designed to conduct a warrantless search of the defendant's person for controlled substances [and were therefore] per se unreasonable, not subject to any exception." The state appealed ¹ and the court of appeals reversed the district court, holding that Nunemacher properly seized the crack cocaine while conducting a valid pat-down search for weapons. We conclude that the frisk was neither justified as a protective frisk for weapons, nor as a search incident to a lawful arrest. Therefore, we reverse the court of appeals and reinstate the decision of the district court.

The Fourth Amendment prohibits an officer from searching an individual without a warrant, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see also Wold v. State, 430 N.W.2d 171, 174 (Minn.1988). The state alleges that the following three such exceptions apply in this case: (1) a protective frisk for weapons; (2) a routine police procedure conducted for officer safety; and (3) a search incident to a lawful arrest. We address each exception individually.

I.

The state first contends that Officer Nunemacher properly conducted a pat search for weapons. An officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm. Terry v. Ohio, 392 U.S. 1, 24, 27, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 246 (3d ed.1996); Wold, 430 N.W.2d at 174. In this case, we agree that the officers were justified in stopping Varnado because they had probable cause to believe she was violating a traffic regulation by driving a car with a shattered windshield. However, we conclude that Nunemacher did not have a reasonable belief that Varnado may be armed and dangerous.

Varnado was stopped for driving with a cracked windshield, which is a minor traffic violation and a petty misdemeanor. ² A petty misdemeanor does not constitute a crime. ³ We have said that "[p]olice officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality." State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333 (1963) cert. denied, 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94 (1963). See also State v. Gannaway, 291 Minn. 391, 392-93, 191 N.W.2d 555, 556 (1971); State v. Curtis, 290 Minn. 429, 431, 190 N.W.2d 631, 633 (1971); State v. Clifford, 273 Minn. 249, 254, 141 N.W.2d 124, 127-28 (1966). The state argues that these cases were limited by United States v. Robinson, 414 U.S. 218, 94 S.Ct 467, 38 L.Ed.2d 427 (1973). The Robinson Court, in upholding a search as a lawful search incident to arrest, stated it was not inclined "to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes." Id. at 234, 94 S.Ct. 467.

The state's reliance on Robinson is misplaced. The search in Robinson was a search incident to a custodial arrest, unlike the analysis here, which only involves a frisk for weapons. The Robinson Court itself observed:

It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.

Id. at 234-35, 94 S.Ct. 467. A typical Terry-type stop is precisely what is at issue here. Therefore, Robinson does not limit our long-held conclusion that during a routine stop for a minor traffic violation, a pat-down search is improper unless some additional suspicious or threatening circumstances are present.

There were no such circumstances in this case. In addition to the innocuous nature of the basis for the stop, the circumstances of the stop itself were neither threatening nor suspicious. Varnado was alone while two officers conducted the stop. Varnado fully cooperated with the officers' requests and did not make any furtive or evasive movements. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1...