Opinion
No. C2-99-174.
Filed November 9, 1999.
Appeal from the District Court, Chisago County, File No. K898710.
Mike Hatch, Attorney General, James B. Early, Catherine M. Keane, Assistant Attorneys General, and
James T. Reuter, Chisago County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Elizabeth Spang, Certified Student Attorney, (for appellant)
Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Kori Dardine seeks reversal of the district court's denial of his motion to suppress evidence. We affirm.
FACTS
Officer Steven Pouti of the Lindstrom Police Department, a school liaison officer, arrested Dardine at Chisago Lakes High School on June 4, 1998, for possession of a controlled substance. The assistant principal of the high school warned Dardine and his friend, F.A., on June 3, 1998, that they were not to be on school property while school was in session because they were no longer students there. The next day, the two were back at the school, allegedly for the purpose of retrieving books from F.A.'s locker. But when the officer and the assistant principal first approached them, they were at the opposite end of the building from F.A.'s locker. Officer Pouti observed that both Dardine and F.A. had glassy, dilated eyes and smelled of burnt marijuana.
After a brief conversation, the assistant principal asked Dardine and F.A. to come to her office. There, the officer noted that Dardine's speech was slurred. Officer Pouti first asked F.A. if he had any drugs or weapons on his person. The officer then asked F.A. to empty his pockets. The officer testified that he did this because, based on his observations, he believed Dardine and F.A. might be on school property for the purpose of selling drugs. F.A. complied and took out, among other items, a small brass pipe of a kind used to smoke marijuana. Officer Pouti then "did a pat down" and felt a hard metal object in F.A.'s pocket. The officer asked F.A. to remove the object, and F.A. took out another pipe containing burnt residue.
Next, Officer Pouti asked Dardine if he had any drugs or weapons on his person and Dardine stated he did not. The officer asked Dardine to empty his pockets, and after he had produced several items, the officer asked if he had completely emptied his pockets, and he stated that he had. When the officer "did a quick pat down," he felt two hard objects in the pocket of Dardine's pants. He asked Dardine what the objects were and Dardine answered, "A pipe." The officer asked Dardine to give him the objects and Dardine handed him a metal pipe. The officer then asked Dardine to give him the second object, which the officer testified he believed to be marijuana or a controlled substance because Dardine had drug paraphernalia in his possession and smelled of burnt marijuana. Dardine reached into his pocket, "dug around," and then took his hand out of his pocket and held it at his side, while holding an object. The officer took Dardine's hand and told him to let go of the object. Dardine complied and handed over a glass vial in which the officer observed several small, yellowish-brown clusters. Based on the officer's experience, he believed the vial contained methamphetamine; tests later confirmed it was "a substance containing amphetamine." The officer then arrested Dardine for possession of a controlled substance. F.A. was cited for trespassing and possession of drug paraphernalia, and he was released.
The district court denied Dardine's motion to suppress the evidence, finding that the search of Dardine was valid as a search incident to arrest. Dardine stipulated to the facts and preserved the issue of whether the evidence was properly seized, and the court found him guilty of fifth-degree possession of a controlled substance and two counts of trespassing. This appeal follows from the possession conviction only.
DECISION
We review pre-trial orders to suppress evidence by independently reviewing the facts and determining, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)). Dardine argues that the search could not be incident to an arrest because the officer was investigating Dardine for trespassing, a misdemeanor offense for which the rules of criminal procedure mandate citation and release, not arrest. Minn.R.Crim.P. 6.01, subd. 1(1)(a). But we conclude, as did the district court, that at the time of the search Officer Pouti had grounds to arrest Dardine for a controlled substance offense on school property, a felony offense warranting a custodial arrest.
A formal arrest need not precede a search incident to lawful arrest, but the fruits of that search must not form the basis for probable cause to arrest, and the arrest and the search must be substantially contemporaneous. State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998) (citing Rawlings v. Kentucky, 448 U.S. 98, 109, 100 S.Ct. 2556, 2564 (1980)); State v. Cornell, 491 N.W.2d 668, 670 (Minn.App. 1992). Probable cause exists when the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the suspect is guilty of a crime. State v. Hendricks, 586 N.W.2d 413, 414 (Minn.App. 1998) (citing State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)), review denied (Minn. Feb. 18, 1999). "Probable cause for an arrest is something more than mere suspicion, but less than evidence which would sustain a conviction." State v. Ailport, 413 N.W.2d 140, 144 (Minn.App. 1987) (citing State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (1968)), review denied (Minn. Nov. 18, 1987). An officer's assessment is based on the totality of the circumstances, and the officer is entitled to make "inferences and deductions that might well elude an untrained person." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981).
The officer found F.A. and Dardine trespassing on school grounds; their reason for being there was not credible; the officer observed that Dardine had glassy, dilated eyes, slurred speech, and smelled of burnt marijuana; and the officer found F.A. was in possession of drug paraphernalia. Under the totality of the circumstances, Officer Pouti had probable cause to believe appellant had committed a felony-level controlled substance offense. See State v. Hodgman, 257 N.W.2d 313, 314 (Minn. 1977) (stating that officer had probable cause to arrest suspect once he smelled marijuana); State v. Wicklund, 295 Minn. 403, 405, 205 N.W2d 509, 511 (1973) (stating smell of burnt marijuana gives officers probable cause to believe law had been violated).
The facts of this case would lead a person of ordinary care and prudence to hold an honest and strong opinion that Dardine was on school grounds for the purpose of selling drugs. See Minn. Stat. § 152.024, subd. 1(4) (1998) (providing that person who sells any amount of marijuana on school grounds is guilty of controlled substance crime in fourth degree). Having probable cause to arrest Dardine, police could search him incident to that arrest. The search and the arrest were substantially contemporaneous and probable cause for the arrest did not depend on the fruits of the search. Accordingly, the search was lawful and the district court properly denied Dardine's motion to suppress.