State v. Gilchrist
299 N.W.2d 913
Minn.
1980
Check Treatment

*1 Minnesota, Respondent, STATE GILCHRIST, Appellant.

Earl Rex

No. 50367. Minnesota.

Supreme Court of

July Jan.

Rehearing Denied

claim and ruled the evidence admissible. conviction, now appeals Defendant his re- newing his contention that admitted evidence suppressed. should have been affirm.

Shortly after 3:00 a.m. on the morn- ing of Sergeant March Finney and Verdeja, Busta, Officers Frank Mark and Kenneth McIntosh Paul St. Police Bar-B-Q King force were at the restaurant 474 University They in St. Paul. there for suspected observation of a “after joint" hours above the restaurant. During among a discussion the four offi- cers, Busta remarked that earlier he had seen a parked silver Lincoln outside with Nebraska license plates. Busta and thought others that the was similar to one described in a handwritten notice or posted bulletin that had the roll call police headquarters. desk at the According officers,1 the notice stated that one suspected Earl Gilchrist was of involvement Nebraska; in a homicide in that he had Meshbesher, Singer Spence, & M. Carol nickel, silver, .357 plated chrome re- Meshbesher, Minneapo- Grant and Kenneth volver; that he driving one of two lis, appellant. for vehicles, a late or a Chrysler, model Lincoln Spannaus, Gen., Atty. Paul, Warren St. plates; Nebraska license that he was Foley, County Atty. Tom C. Steven friend; traveling with a female that he DeCoster, Paul, County Atty., Asst. for may dangerous; be armed and that respondent. may be in photograph St. Paul. Gilchrist’s notice, on posted shortly ROGOSHESKE, Heard before KELLY before the in question. date The notice did YETKA, JJ., and considered and decid- not state that Gilchrist was wanted by the ed court en banc. homicide or that warrants his arrest outstanding. The officers thus be- gave lieved notice them no KELLY, Justice. arrest, caution,” only but to “use extreme stipulated Defendant was convicted on Gilchrist, identify” or contact possession facts at a trial court cocaine pro- Nebraska policemen authorities. The possession handgun per- without a notice, copy duced no no later mit. Defendant had earlier at a contended copy could be found. Rasmussen hearing certain evidence conviction, discussion, leading During including the four officers cocaine, handgun previous product was the also talked about incident illegal of an had year allegedly search and seizure. Ram- before which Gilchrist sey County rejected District person Court had shot at another fled the Busta, Verdeja, 1. Officers and McIntosh testi Finney hearing. Sergent fied at the Rasmussen did not. revolver, the gun but not named on the allegedly occurred This incident

scene. joint” similar to bulletin. an “after Bar-B-Q King. above that, Officer Busta testified after the commenced, park- search of the front seat out to The officers then walked *3 car, toward but Busta had defendant made a move the out the car that ing lot to check by Sergeant Finney. Dur- Lincoln Vers- was restrained The a silver 4-door seen. Continental, ing to McIntosh searched the back this time was about ailles Bar-B-Q King. nothing. The seat and found the away feet from seat of figures in the front officers saw two searched, the the car was About time Busta im- smoking cigarettes. the Lincoln down, Finney patted defendant and found a Gilchrist, the oth- recognized but mediately pocket. cut soda in his This straw straw did not. apparently ers recognized type as a of instrument used was pro- ingest to Verdeja then cocaine. McIntosh and Officers the passenger to side of car. ceeded the the was the front gun After found under on window and asked tapped the McIntosh seat, handcuffed, arrested, was defendant car step to out the passenger the brought back to the station. produced The man produce identification. envelope and an full There he was searched identification, in- after which McIntosh cocaine, as powder, of white later identified stop, purpose formed him was pocket. He then was found in weapons, and checked for frisked him for pistol without charged possession weapons him. outstanding warrants on No 624.714, permit a Minn.Stat. subd. under § found, outstanding and there no (1978), of cocaine under possession released, warrants, passenger so 3; 152.02, 152.09, subd. subd. Minn.Stat. §§ left scene. and he 152.15, 2(1) At the 1(2); and subd. Hearing, where the defendant Meanwhile, Sergeant ap- Rasmussen Finney cocaine, challenged gun, and soda straw who was proached defendant Gilchrist during an unlawful being as either seized Finney asked defendant the driver’s seat. thereof, judge produce being identi- the fruit car and to get to out of the suspi- reasonable fication, found that the did so. The chrono- and defendant defendant, stop to and that reasona- happened next cion logical order of what Ohio, weapons Terry Finney ble frisk exactly patted Either down clear. 1868, 20 L.Ed.2d 889 Verdeja and McIn- the defendant or asked (1968), the front the area under weapons; Verdeja included to search the car for tosh thus ruled admissi- seat. The evidence was seat McIntosh was to search front on After court trial and conviction ble. the back. facts, appeals. stipulated the defendant rate, any Verdeja began to search the At trial court state contends that at this time seat of the car. Gilchrist front its determination was correct in away feet at the back was about 6 suspicion” police had “articulable patted plastic sufficient Verdeja first down car. stop forcible seat, subject to to a and then defendant covering on the front doctrine search under the top weapons limited On reached under seat. Terry hump, passen- between transmission (1968), that the search side, object felt hard L.Ed.2d 889 ger’s and driver’s seat of defendant’s suspected under front the seat.” He “snug underneath a search.2 scope of such came within the weapon pulled out. sense appears argue *to in- the conventional to 2. The State also find on Since we oth- defendant’s automobile. on the available to the formation morning constituted of March provides that a may v. Ohio have been involved in a lawfully homicide, make armed, officer a forcible investi that he and that gative stop of an individual and frisk him Nebraska authorities desired more informa- They defendant, tion. than further knew that proba on less traditional year earlier, about a had been point ble cause if involved in a specific he is “able to firearms-related which, incident near an “after together and articulable facts taken joint” similar above facts, with rational those inferences from Bar-B-Q King. They could reasonably warrant intrusion.” [the] approached car initially posi- U.S. at 1880. “The officer tively identify legitimate defendant for the absolutely not be need certain that the indi police purpose informing Nebraska au- armed; vidual the issue is whether a Paul, thorities that he was or for reasonably prudent man in the circumstanc *4 why, extremely out at that es would be in warranted the belief that his hour, again he outside an “after or safety danger.” that of others was in Id. joint.” Given history, defendant’s violent 27, at 88 S.Ct. at 1883. See also Brown v. alleged against nature the crime Texas, 2637, 47, 443 99 61 U.S. S.Ct. L.Ed.2d him, the police could reasonably have feared (1979); Johnson, 357 v. 257 State N.W.2d safety for their and ordered the defendant (Minn.1977); 308 State McKinley, v. 305 out of part to frisk him as 297, (1975); Minn. 232 N.W.2d 906 City of legitimate investigative stop. 337, Paul v. 306 Vaughn, Minn. 237 (1975); N.W.2d 365 Gannaway, State v. 291 say This is not to that there is not some 391, (1971). Minn. 191 555 N.W.2d force to argument. defendant’s In most of the cases where police radio or other bulle The support information that will an tins, or tips, informants’ were considered to investigative stop and frisk need not be contain sufficient information for an inves personal obtained from an officer’s observa tigative stop, either the element of an ar tion; it may rather based on an infor rest present, warrant was or else some Williams, tip. mant’s See Adams v. 407 activity, criminal preparation for crimi 143, 147, 92 1921, 1924, 32 U.S. S.Ct. L.Ed.2d nal activity, happened that shortly pri- (1972). 612 The officer also entitled to reception of such information was approach with purpose “to case, alleged. In the current the informa quo maintain the momentarily status while tion received from alleged the bulletin was * * obtaining more information *Id. ly quite Still, stale. Fourth Amend “[t]he 146, at the stop When is ment require policeman does who automobile, of an is proper it for the officer lacks precise level of information neces safety require for his occupants sary to for to simply arrest to shrug get Pennsylvania automobile to out. v. shoulders and allow a crime to Mimms, 106, 330, escape. occur or a criminal 434 98 to On con S.Ct. trary, Terry recognizes (per curiam). may (1977) L.Ed.2d that [v. Ohio] be the good essence of police adopt work to standard, Under appear this it would an response.” intermediate Adams Wil police justified that officers were in liams, 145, 1921, 1923, stopping investigating. The (1972). totality L.Ed.2d Given information, apparently officers had from bulletin, the circumstances: time police sources,3 regular day, transmission that the location of the and the defend lawful, grounds searching-arresting er we need officer act on the basis not address this contention. personal of information of he has no knowledge relayed by which has been to him Impson, 3. Cf. United States 482 F.2d police facilities.”) transmission (5th Cir.), denied, cert. (“[T]he 38 L.Ed.2d 246 princi as places Although, such from the relevant history ant’s of behavior of, parked ples, outside it can be seen that this is a close case he was stop a forcible to justified making reasonably justi in whether the identification. questions and receive ask searching fied in beneath the front seat of stop the initial conclude that thus car, we conclude that facts sort of frisk de and some identification reasonably indicate that the search tai under the circum was reasonable fendant justification safety lored to its —the stances. present officers. case The defendant firearms, carry and he had was known to was suffi- Having there established with been connected a homicide which to to available cient information used. apparently firearm was He also stop investigative and a limited an warrant shooting been connected outside of weapons, we now turn search for similar hours” establishment. The “after underneath question whether the intrusion officer car was out- the front seat of defendant’s that, a limited search. concerned when defendant was al scope side the such lowed to car after the reenter.his search for of the limited seat, pull would be to reach under the able narrowly must be gun, Thus the shooting. out a and start purposes intrusion confined that, feeling police officers were serve; weap is a “frisk supposed minimum, they run hand *5 must a under evidence.” ons” rather than a “search for the the in the area within sus neath seat types well as in other of In the “frisk” as pect’s immediate reach when would searches, scope the search must be of “[t]he car, though the even the defendant reenter by’ justified tied the circum ‘strictly to and time the of car at was outside permis which rendered its initiation stances See, being limited search conducted. Ohio, 19, 88 Terry v. 392 U.S. sible.” Wilkerson, e.g. v. 598 F.2d United States justification sole S.Ct. at 1878. Since “[t]he State, 349 (D.C.Cir.1978); Herrin v. 621 * * * of protection of the search denied, cert. 349 (Ala.Crim.App.), 103 So.2d ** nearby officer and others (Ala.1977); 110 v. Al So.2d Commonwealth * * * scope in to an be confined must (1977); meida, 266, 756 373 Mass. 366 N.E.2d reasonably designed to discover intrusion 227, Brown, N.J.Super. v. 389 State 160 clubs, knives, instru guns, or other hidden (Law Div.1978). A.2d 507 police officer.” for the assault of the ments has that a noted commentator realize 29, The United Id. at 1884.4 88 S.Ct. opinion “that it ‘can be ar expressed the cases has Supreme in recent Court States that the de gued persuasiveness with some Terry case created an reiterated that “[t]he poten hardly as a be viewed fendant could requirement probable exception to the to his after he had returned tial assailant scope’ cause, whose ‘narrow exception an ” he had not been detained vehicle and knew maintain.’ been careful to this Court ‘has 5 LaFave, 3 by police.’” W. Search 85, 100 338, Illinois, 444 S.Ct. v. U.S. Ybarra (1978) (quoting Com Seizure 9.4 at 137 accord, § Duna 343, (1979); 238 62 L.Ed.2d Silva, 402, 409, 318 Mass. 200, 206-13, v. 366 York, 99 monwealth way v. New 442 U.S. However, 895, 900 (1974)). the same (1979). 2248, 2253-56, N.E.2d L.Ed.2d 824 60 S.Ct. “ * * * 873, 878, 2575, connection, 45 L.Ed.2d 607 U.S. 90 S.Ct. touch- this [t]he In Mimms, (1975).” Pennsylvania analysis v. 434 U.S. our the Fourth Amend- stone of 108, 330, 1, 106, always n. 331 in all the 332 54 L.Ed.2d ‘the reasonableness ment Ferrise, governmental (1977) (quoted particular in v. 269 N.W.2d circumstances of the State security.’ 888, personal (1978)). invasion a citizen’s 890 n. 1 1, 1868, 1878, Ohio, 19, 20 v. S.Ct. 392 U.S. 88 v. Bend course, also of Canal Zone Reasonableness, See Government (1968). 889 L.Ed.2d er, 1978); (5th v. 573 1329 Cir. State F.2d public depends inter- ‘on a balance between Greenwald, (La.1979); City of est, 369 So.2d 1317 right personal secur- and the individual’s by Poindexter, arbitrary Portland ity 551, law v. Or.App. interferences free from 38 590 (1979). Brignoni-Ponce, P.2d 781 422 v. United States officers.’ 918 on state that goes person,

commentator search of justified defendant’s is not “[t]here in special goes beyond be situations which as a frisk. the constitution- al fairly danger that the definition assumed continues of a frisk even * ** if, deciding by imagination, Without that the some stretch of the it did not, justified every believing general are in atmosphere, case non-hostile danger having remains a after lack of gestures by prior furtive subject investigative stop to an lack of access to the car frisk, case, present we that in while investigation place, feel be- took record, seeming cause of past part unconcern on the justified “special safety, by situa- their as indicated the chronol- actions, permitting ogy tion” their search under front all indicate that seat of by defendant’s car. trial court is accordingly affirmed. concern the officers’ safety. immediate

Without cause to search the admittedly pos- the officers did not WAHL, (dissenting). Justice sess, fall, gun the seizure must I In respectfully my opinion dissent. it, defendant’s arrest and the seizure today represents decision of the court of the cocaine station house. See significant departure from the 471, Wong States, v. United 371 Sun U.S. frisk” as enunciated in the doctrine United 407, S.Ct. 9 L.Ed.2d 441 As we cases, Supreme trilogy States Court Ter Curtis, stated in State v. 290 Minn. 1, 1868, ry v. S.Ct. 631, (1971), N.W.2d “subsequently (1968); York, L.Ed.2d 889 v. Sibron New retroactively discovered facts cannot serve 1889, L.Ed.2d 917 to validate a search which was otherwise York, (1968); Peters New 88 unlawful.” (1968), 20 L.Ed.2d 917 our case, Gannaway, own State 291 Minn. ROGOSHESKE, (dissenting). Justice (1971), 191 N.W.2d 555 all of which *6 I do believe the and frisk” contrary dictate a with regard result join doctrine should be extended hence grant “frisk” conducted in this case. Even the dissent of Justice Wahl. possessed “specific ed that the officers articulable facts” which both the frisk,

stop and the is constitutionally frisk pat-down

limited to a the outer

clothing to discover might be used to assault the officer. 88 S.Ct. at person. 1884. It is a limited search of the Minnesota, Respondent, STATE of must be restricted the protection by disarming of the officer FELSON, Appellant. dangerous William Robert potentially person. Here of dangerous felt object. ficer no hard or No No. 51314. reasonable have officer could believed that Supreme Court of Minnesota. endangered safety. straw soda here, just search should have ended as this Sept. court declared that the search in Gannaway Rehearing Denied Jan. discovery should ended after corn cob pipe. The search either before or

after the of the soda straw