Opinion
No. C0-97-220.
Filed November 4, 1997.
Appeal from the District Court, Hennepin County, File No. 963786.
Hubert H. Humphrey, III, Attorney General, (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, (for Respondent)
Barry V. Voss, Voss Hickman, P.A., (for Appellant)
Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Steven Jacobson appeals the district court's judgment that the traffic stop that led to his arrest for possession of methamphetamine did not violate the Fourth Amendment. We affirm.
FACTS
At approximately 6:50 p.m. on January 12, 1996, during a routine patrol in a marked squad car in Rockford, Hennepin County Deputy Sheriffs Larry Kappeller and William Chandler pulled up behind a Lincoln Continental driven by appellant Steven Jacobson. Both cars turned onto Highway 55 and proceeded east into the town of Greenville. Jacobson changed from the center to the right lane without signaling and appeared not to be wearing his seat belt. Kappeller and Chandler elected to follow Jacobson further to watch for signs of impairment, but after traveling approximately 1/10 of a mile, Jacobson turned into the pump area of a gas station and stopped.
Kappeller and Chandler both testified that, in their experience, it was best not to stop motorists in gas station lots because of embarrassment to the motorist, inconvenience to customers, and safety should the motorist prove violent. They therefore elected to drive to the far end of the parking lot and wait for Jacobson to finish. Both admitted that they could have approached Jacobson at the gas pumps and would not have had authority to search his car in that circumstance.
Both officers testified that Jacobson appeared very nervous as he pumped his gas. Jacobson went inside to pay, returned to the car, opened the driver's side door, and removed something that he dropped in a waste receptacle. He then re-entered the gas station before returning to his car. Kappeller and Chandler admitted they could have spoken to him at the waste receptacle or in the store. The officers testified that the entire episode at the gas station took five to ten minutes; Jacobson estimated the time as ten to fifteen minutes.
Instead of returning to Highway 55, Jacobson drove into the parking lot of an adjacent strip mall, although all the stores were closed. At this point, the officers decided to pull him over to discuss the traffic violations.
Following procedure, Kappeller spoke with Jacobson through the driver's side window while Chandler shone a flashlight through the passenger side windows looking for weapons. Kappeller examined Jacobson's license and registration and returned to the squad car to do a license search. Chandler testified that at this point, Jacobson made furtive movements that Chandler could not see fully, but he did see Jacobson remove something from his jacket and rub his finger in his mouth twice.
Kappeller discovered that Jacobson's license was suspended. He returned to Jacobson's vehicle and ordered him out of the car. At this point, he noticed some light brown powder on Jacobson's right thigh, contrasting with the blue of his jeans. Believing the powder to be methamphetamine, Kappeller removed some from Jacobson's jeans, handed it to Chandler, and placed Jacobson under arrest. Using his flashlight, Chandler saw similar powder on the seat, floorboard, and door handle.
After hearing testimony at the suppression hearing, the district court denied Jacobson's motion to suppress the methamphetamine as the fruit of an illegal search. Jacobson waived his right to a jury trial and proceeded on stipulated facts, but preserved his right to appeal the search and seizure issue. The court found Jacobson guilty of fifth-degree possession of a controlled substance, but stayed his sentence pending appeal.
DECISION I. Standard of review
The question of the legality of a search and seizure involves issues of both fact and law. Findings of fact are reversed only when clearly erroneous. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S.Ct. 2130 (1993). If the trial court credits the testimony of the arresting officer, or if the facts are not significantly in dispute, this court will independently review the application of the law to determine the adequacy of the basis for the stop in view of the officers' testimony. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985); State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn. 1988).
II. General standards for traffic stops
A "specific and articulable suspicion" of a traffic violation generally provides the "minimal" support necessary for a "routine traffic check" under the Fourth Amendment. State v. Clark, 394 N.W.2d 570, 571 (Minn.App. 1986) (quoting Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980)) (upholding stop based on obscured license plate and suspicion of broken muffler). Here, the officers saw Jacobson commit two violations: changing lanes without signaling and failing to wear a seat belt. The officers therefore had more than reasonable grounds to believe Jacobson had violated traffic laws.
Pursuant to Minn. Stat. § 169.686, subd. 1 (1996), failure to wear a seat belt alone will not justify a traffic stop, but can be grounds for citation when combined with a second offense. State v. Fiebke, 554 N.W.2d 755, 757 (Minn.App. 1996).
Jacobson does not contest the fact that, if the stop was lawful, the officers were entitled to notice the tan powder in plain view, see State v. Lembke, 509 N.W.2d 182, 184 (Minn.App. 1993) (police may seize incriminating evidence in plain view if lawfully in position to see it), and to arrest him for driving with a suspended license as well as on probable cause that the powder was methamphetamine. His major argument is that the lapse of five to fifteen minutes made the otherwise lawful stop illegal, whether because it indicated pretext or because the delay itself violated the Fourth Amendment.
III. Pretext
Jacobson questions the officers' motives, implying that the officers delayed stopping him until he had left the gas station because of a desire to search his car, rather than for the reasons given in their testimony. The credibility of witnesses is a question for the finder of fact, to whose determinations this court shows great deference. Dickerson, 481 N.W.2d at 843. Nothing in the record indicates that the court's decision to credit the officers' testimony was clearly erroneous.
Jacobson urges this court to find the delay to constitute circumstantial evidence of pretext, following State v. Hoven, 269 N.W.2d 849 (Minn. 1978). In Hoven, the police received information from a reliable informant that the defendant was preparing to transport drugs in a pickup truck with Iowa license plates. Id. at 851. The police traced such a truck to the defendant, but instead of obtaining a warrant to search the truck, they placed the truck under surveillance, waited two hours for the defendant to enter the truck and drive away, briefly followed the truck, then stopped it and arrested the defendant based on two outstanding warrants for failing to appear in response to traffic violations. Id. This led to the discovery of drugs in the truck through search incident to arrest and subsequent consent. Id. The Minnesota Supreme Court reversed the conviction, finding "the inference * * * inescapable that the arrest was made and timed primarily to facilitate the warrantless search." Id. at 853.
The Minnesota Supreme Court has questioned the continued vitality of Hoven in view of later decisions holding that an arrest or search is valid if there is an objective legal basis for it, whatever the officer's motives. See State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992); see also State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983) (applying purely objective test for validity of car stop without inquiring into subjective intent). However, the court has left open the possibility that subjective intent may be considered in limited cases. See State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991).
To the extent that Hoven remains valid precedent, we find it distinguishable. This case lacks any of the factors from which the Hoven court inferred pretext other than the fact that the officers waited to detain Jacobson until he had returned to his vehicle. The officers' testimony indicates they had no intention to search the car and no suspicion of narcotics involvement until they saw the tan powder, and we have no basis on which to question the trial court's decision to credit their testimony.
IV. Objective legality of the delay A. The delay on the highway
Jacobson argues that the officers could have spoken to him before his stop at the gas station. Both officers testified that they did not pull him over immediately upon seeing the violation because they wanted to observe him further for signs of impairment. Jacobson has no reasonable expectation of privacy in the manner of his driving as it is readily observable to the public. See U.S. v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1085 (1983) (visual observation of vehicle approaching cabin not "search" because does not intrude on expectation of privacy). In Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11 (Minn.App. 1986), where an officer observed the defendant driving unreasonably slowly and weaving across the center line and followed him across a county line before stopping him, this court concluded that
the officer's subjective decision not to stop the driver immediately upon observation of these facts, but instead to follow him for some distance, while unusual, is of no legal significance. The test is whether the officer observed sufficient objective facts to support the stop.
Id. at 14. Similarly, in the seminal investigative stop case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the U.S. Supreme Court upheld a pat-down search where a police officer had observed the suspect for some time in order to confirm his suspicions. Id. at 5-6, 1871-72. In any event, Jacobson pulled into the gas station within approximately 1/10 of a mile after changing lanes. Even if Jacobson were traveling at only 6 miles per hour, the delay on Highway 55 could have taken no more than a minute.
B. The delay at the gas station
Jacobson's primary contention is that the lapse of five to fifteen minutes at the gas station resulted in a violation of his Fourth Amendment rights. The case law does not support Jacobson's contention that the delay somehow eliminated the original probable cause for the stop. In State v. Olsen , police officers commenced a warrantless search of a building where a fire had taken place 15 minutes after the firefighters had left. 282 N.W.2d 528, 530 (Minn. 1979). The Minnesota Supreme Court upheld the search, holding that exigent circumstances still remained and that the delay did not increase the degree of interference with privacy. Id. at 532. Here, the exigency that made obtaining a warrant impractical in the first place, Jacobson's mobility in his car, was the same after the delay in the gas station as before it. See State v. Johnson, 277 N.W.2d 346, 349 (Minn. 1979) (warrantless searches of automobiles are permissible in circumstances where search of home or office would not be because of exigency created by inherent mobility).
Fourth Amendment analysis ultimately rests on the question of whether an intrusion on privacy is reasonable under all the circumstances. State v. Ferrise, 269 N.W.2d 888, 891 (Minn. 1978). On direct examination, Kappeller testified that he delayed the stop because, in his experience, making traffic stops at gas pumps creates confusion by blocking the pumps, particularly when a tow truck becomes necessary. Chandler corroborated this statement and added that a stop away from "activity" reduces unnecessary embarrassment of the party stopped and is safer for "the people around in case things go wrong[.]" These concerns appear reasonable under the circumstances, and the officers made the stop immediately after these considerations ceased to apply. We conclude that the district court did not err in holding that the delay did not convert the otherwise lawful stop into an unreasonable search and seizure in violation of the Fourth Amendment.