State of Minnesota v. Kevin Earl Westergaard ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0582
State of Minnesota,
Respondent,
vs.
Kevin Earl Westergaard,
Appellant.
Filed February 29, 2016
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-CR-14-20817
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his conviction of being a prohibited person in possession of a
firearm, appellant Kevin Earl Westergaard argues that district court erred in denying his
motion to suppress evidence because police officers unlawfully seized and subsequently
pat searched him. We affirm.
FACTS
On July 18, 2014, at approximately 10:00 p.m., Minneapolis police officers
Andrew Carigiet and Justin Young were on patrol when they were dispatched to assist in
locating one or two unknown males suspected to have been tampering with motor
vehicles. The suspect(s) had fled from a truck which had its “VIN plate” (vehicle
identification number) altered, indicating that the truck or its parts had likely been stolen.
Officers Carigiet and Young joined other officers searching a “broad area” for the
suspect(s).
One male believed to be involved in the vehicle tampering was apprehended by
other officers. As the search continued, Officers Carigiet and Young were dispatched to
a residence near the vehicle tampering to recover possible videotape evidence from a
home security system. En route, and within blocks of where the vehicle tampering had
been reported, the officers observed a Cadillac legally parked, with its lights off, under a
tree and away from any streetlights on a quiet residential street that “has very few calls
for service.” The Cadillac was the only vehicle parked on the street. The officers took
notice because the Cadillac was not parked near any driveway or sidewalk, which they
thought was unusual at that hour. The officers shone their squad car’s spotlight on the
Cadillac as they pulled up to it. They observed a person in the driver’s seat and two
people in the back seat, which “raised concerns” because “usually . . . one person [is
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sitting] in the back and two people [are sitting] in the front.” The officers also observed
that the Cadillac’s rear passenger door was open.
Believing that the Cadillac might be related to the tampering case, the officers
pulled their marked squad car alongside and to the front of the Cadillac, parking near the
Cadillac’s front left bumper. The officers did not activate their squad car’s emergency
lights.1 Uniformed and armed, the officers approached the Cadillac. Officer Carigiet
observed a person later identified as appellant “slumping” or “sinking” down into the
back seat. Based on his training and experience as a police officer, Officer Carigiet
thought such behavior was indicative of a person attempting to avoid or evade police
contact.
Officer Carigiet asked the female driver to roll down her window. He informed
the Cadillac’s occupants that the officers were investigating recent vehicle tampering in
the area. Speaking in what he described as a normal tone, Officer Carigiet asked the
occupants what they were doing in that location, and requested identification. The two
female occupants stated that they were just parked there and handed the officer their
identification. Appellant stated that he did not have identification with him. He
“muttered something” to the female in the back seat. Appellant appeared to be
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Officer Carigiet testified that he did not recall whether the emergency lights were on,
but stated that the squad video would have automatically started if they had been
activated, and the squad video did not activate. Officer Young testified that the
emergency lights were not on. Based on Officer Young’s testimony and the lack of a
squad video in this case, the district court found as a fact that the emergency lights were
not activated.
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intoxicated. The driver told the officers that appellant had just been picked up and that he
was “wasted.”
After indicating that he did not have identification, appellant shifted his weight to
his right side and began rummaging through his pockets. Concerned that appellant might
be armed, Officer Carigiet went around to the passenger’s side of the Cadillac and asked
appellant to exit the vehicle. Officer Young continued to talk with the driver, who asked
if she could exit the Cadillac and nodded towards the back seat several times. Officer
Young believed the driver to be communicating nonverbally that she did not want the
back-seat occupants to hear what she planned to tell him. Concerned for his and his
partner’s safety because of appellant’s suspicious actions and apparent intoxication,
Officer Carigiet performed a protective frisk of appellant. Officer Carigiet discovered a
loaded handgun in appellant’s right-back pocket. Officer Carigiet handcuffed appellant
and placed him in the squad car. It was later determined that appellant was prohibited
from possessing firearms, and he was therefore charged under Minn. Stat. § 624.713,
subd. 1(2) (2012).
Before trial, appellant moved to suppress the firearm as the fruit of an
unconstitutional search and seizure and, derivatively, to dismiss the complaint for want of
probable cause. At the Rasmussen hearing, State ex rel. Rasmussen v. Tahash, 272 Minn.
539, 141 N.W.2d 3 (1965), the district court heard testimony from Officers Carigiet and
Young and another officer investigating the vehicle tampering. It denied appellant’s
suppression motion. Appellant waived his trial rights, and the parties submitted the case
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to the district court on stipulated facts.2 The district court found appellant guilty and
sentenced him to 60 months in prison. This appeal followed.
DECISION
Appellant argues that the district court erred in denying his motion to suppress the
firearm seized from him. “When reviewing a district court’s pretrial order on a motion to
suppress evidence, [an appellate court] review[s] the district court’s factual findings
under a clearly erroneous standard and the district court’s legal determinations de novo.”
State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted). If the relevant
facts are undisputed, we apply a de novo standard of review to a district court’s
conclusion that a seizure is justified by a reasonable, articulable suspicion. State v.
Diede, 795 N.W.2d 836, 843-44 (Minn. 2011).
Moment of seizure
Appellant argues that he was seized when the officers shone their spotlight on, and
parked their marked squad car near the front bumper of, the vehicle he was occupying,
and approached that vehicle while armed and in uniform. He maintains that the officers
did not have a reasonable, articulable suspicion of criminal activity justifying the
investigatory detention of the vehicle.
Both the Minnesota and United States Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
2
The parties identified the proceedings as a “Lothenbach trial” on the record, but
appellant’s signed waiver of his trial rights made reference to a stipulated-facts trial under
Minn. R. Crim. P. 26.01, subd. 3. No argument is made in the briefing that this apparent
incongruity has any effect on the merits of this appeal.
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seizure occurs “‘when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.’” In re Welfare of E.D.J., 502 N.W.2d 779,
781 (Minn. 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16,
(1968)). When analyzing whether a seizure has occurred, we determine whether a police
officer’s actions would lead a reasonable person under the same circumstances to believe
that he was not free to leave. State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).
Whether a seizure has occurred depends on the totality of the circumstances using a
reasonable-person standard. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Circumstances that may indicate a seizure took place include “the threatening presence of
several officers,” an officer’s display of a weapon, physical touching of the person, or
“language or tone of voice indicating that compliance with an officer’s request might be
compelled.” E.D.J., 502 N.W.2d at 781-83 (first quoting and citing United States v.
Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980); and then citing Florida
v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326 (1983)).
There is no seizure for constitutional purposes when an officer walks up to an
already stopped car and converses with the driver. State v. Vohnoutka, 292 N.W.2d 756,
757 (Minn. 1980); Crawford v. Comm’r of Pub. Safety, 441 N.W.2d 837, 839 (Minn.
App. 1989). “Nor does a seizure occur simply because a person feels some ‘moral or
instinctive pressure to cooperate’ with the officer.” Illi v. Comm’r of Pub. Safety, ___
N.W.2d ___, ___, No. A15-0359, 2015 WL 9264036 at *2 (Minn. App. Dec. 21, 2015)
(quoting Harris, 590 N.W.2d at 99). Because the Cadillac was already stopped before
any police involvement, and because the officers’ approach was not itself a seizure, “we
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must consider whether the officer’s pre-approach conduct constituted a seizure.” Illi,
2015 WL 9264036 at *2.
Appellant argues that he was seized when the officers “parked their marked squad
car in a manner indicating that the [Cadillac] was not free to leave.” An officer’s
blocking of a vehicle may constitute a seizure, because such police action might indicate
to a reasonable person that the person is not free to leave. But here, the district court did
not find, nor do the facts suggest, that the Cadillac was blocked in by the squad car so as
to prevent it from being able to leave. See Illi, 2015 WL 9264036 at *2 (citing State v.
Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988)). The officers parked the squad car
near the left-front bumper of the Cadillac because they were driving past the vehicle with
no intention of seizing it or stopping near it until they observed it to be occupied. The
district court did not find, nor does the record support, that the squad car was parked so as
to prevent the Cadillac from moving. See State v. Lopez, 698 N.W.2d 18, 22 (Minn. App.
2005) (the use of a squad car to block a parked vehicle generally constitutes a seizure);
Sanger, 420 N.W.2d at 242 (stating that the officer, “by his own admission, parked his
squad car in such a position that [the defendant] could not exit”). The officers’ parking
their squad car as they did alongside and near the front-left bumper of the Cadillac did
not constitute a seizure.
Appellant also argues that the officers’ use of the squad car’s spotlight to
illuminate the Cadillac, together with other factors, amounted to a seizure. This argument
fails. As we recently held in Illi, an officer shining a squad car’s spotlight on an already
stopped car before approaching it on foot does not constitute a seizure. Illi, 2015 WL
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9264036 at *4. Further, as Illi recognizes, an officer’s actions in parking his marked
squad car within feet of the individual’s vehicle, shining a spotlight on it, and
approaching the driver does not constitute a seizure. Illi, 2015 WL 9264036 at *2-4.
Appellant argues that the officers’ approaching the Cadillac “in full uniform with
their semi-automatic handguns visible, in a show of authority” constituted a seizure. In
State v. Day, we held that “the summoning by the police officer, who was in uniform and
armed, requiring appellant to approach the officer’s squad car to provide identification
and to respond to questioning, constitutes a restraint and seizure under the fourth
amendment.” 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20,
1990). Day is distinguishable. There, the police officer required the driver to approach
the squad car and respond to questioning. Id. Here, the officers approached the vehicle.
They did not command the Cadillac’s occupants to do anything at that point. Instead,
they walked up to a parked vehicle. While the officers were visibly armed, there is no
evidence that they actively displayed their service revolvers. See E.D.J., 502 N.W.2d at
781 (stating that one factor indicating a seizure has occurred is “the display of a weapon
by an officer”).
An officer does not seize every person whom the officer approaches simply by
wearing a uniform and carrying a service revolver. Appellant would seemingly advocate
adoption of a rule of law requiring officers to change out of their uniform and discard
their service weapons before approaching stopped vehicles or people they might pass on
the street. There is no such rule of law and we decline to adopt one. See State v.
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Patterson, 796 N.W.2d 516, 533 (Minn. App. 2011) (stating that this court is an “error
correcting court”) (quotation omitted), aff’d, 812 N.W.2d 106 (Minn. 2012)
Appellant was not seized when the officers shone their squad-car light on, and
then parked their marked squad car near the front bumper of, the vehicle appellant was
occupying. Nor was appellant seized when the officers approached the Cadillac while
armed and in uniform.
Reasonable suspicion to frisk
Appellant argues that Officer Carigiet lacked reasonable, articulable suspicion
sufficient to justify a pat search, and that he was “obviously intoxicated” and could have
been searching for identification in response to the officers’ request.
The Fourth Amendment to the United States Constitution and article I, section 10
of the Minnesota Constitution guarantee an individual’s right to be free from
unreasonable searches and seizures. State v. Jackson, 742 N.W.2d 163, 174-75 (Minn.
2007). Evidence seized in violation of the constitution must generally be suppressed. Id.
at 177-78. “Warrantless searches are generally unreasonable unless they fall within a
recognized warrant exception.” State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
One of the exceptions to the warrant requirement is for protective pat-down searches on
the outside of a suspect’s clothing to find weapons. Terry v. Ohio, 392 U.S. 1, 29-31, 88
S. Ct. 1868, 1883-85 (1968). Under Terry, police officers “may stop and frisk a person
when (1) there is a reasonable, articulable suspicion that a suspect might be engaged in
criminal activity and (2) the officer reasonably believes the suspect might be armed and
dangerous.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366,
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113 S. Ct. 2130 (1993). “The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of violence . . . .”
Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 (1972).
Having lawfully approached the Cadillac in which appellant was seated, the
officers observed several things about appellant that reasonably concerned them.
Appellant was slumping down as if to avoid the police, he was intoxicated, and he
seemed to be fidgeting with something in his pocket despite having said that he had no
identification with him. The Cadillac was the only vehicle parked on a street located
within blocks of the vehicle-tampering report, and one or two male suspects had fled
approximately 40 minutes earlier. Only one person had been apprehended, and police
were still looking for another possible suspect. There was a person in the Cadillac’s
driver’s seat and two people in the back seat. The Cadillac, parked away from any
sidewalks or driveways, had its rear passenger door open. The woman in the driver’s seat
seemed to be signaling to Officer Young that she wished to talk with the officer away
from her passengers. The totality of the circumstances was sufficient to support Officer
Carigiet’s enunciated suspicion of criminal activity.
Appellant’s rummaging in his pockets after having disclaimed possession of any
form of identification also reasonably alerted Officer Carigiet that appellant might be
armed. The furtive movements that an officer observes provide a reasonable basis for
conducting such a protective pat search. See State v. Flowers, 734 N.W.2d 239, 252
(Minn. 2007) (concluding that “suspicious movements” in the vehicle gave officers
reasonable suspicion that defendant might have been armed and dangerous); Dickerson,
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481 N.W.2d at 843 (stating that evasive conduct may give rise to reasonable suspicion).
Officer Carigiet was reasonably concerned for his and his partner’s safety because the
two officers were encountering three people, one of whom was apparently intoxicated
and remained unidentified. Other officers in the area were still occupied with the search
for a suspect in the vehicle tampering. We conclude that Officer Carigiet had ample
cause to pat search appellant in these circumstances.
Appellant argues that his fidgeting with his pockets might have been in response
to the officer’s request for identification, and that Officer Carigiet was not truly
concerned because he did not alert Officer Young or call for back-up. These arguments
are unavailing. “A determination that reasonable suspicion exists . . . need not rule out
the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.
Ct. 744, 753 (2002). The district court did not err in determining that Officer Carigiet
had reasonable, articulable suspicion under Terry supporting the pat search of appellant.
We therefore affirm its denial of appellant’s motion to suppress.
Affirmed.
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