Nicollet County District Court File No. T8-02-1692
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and
The opinion of the court was delivered by: Randall, Judge
In this appeal from his conviction for underage drinking, appellant argues that the police lacked a reasonable, articulable suspicion that he was engaged in illegal activity and, thus, his seizure by the police violated his constitutional rights. We agree there was no particularized suspicion that appellant had violated the law before he was seized. We reverse.
On April 6, 2002, at approximately 10:22 p.m., the St. Peter Police Department received a report of possible illegal drug use in front of 51 Summit Park and that the individuals involved came from a party down the street. Officer Ruffing testified that the party was at 47 Summit Park and that noise was audible from the property line, thus, making the noise a violation of a city ordinance. Ruffing observed several empty balloons lying in the area of 47 Summit Park. He claimed that made him suspect that people nearby were using nitrous oxide. The record discloses absolutely nothing about nitrous oxide except "empty balloons."
Ruffing knocked on the door at 47 Summit Park and Irene Garsez, a resident, answered. When the door opened, Ruffing smelled the odor of alcohol and burnt marijuana coming from inside the residence. Ruffing observed an individual (not appellant), whom he knew was under 21 years of age. Ruffing and Garsez spoke briefly and Ruffing testified that he could smell "alcohol or the odor of alcohol about her." Garsez stated she had not had anything to drink. It appears she was correct. When tested, she had an alcohol content of zero. While Ruffing was speaking with Garsez, Officer Hagan spoke with the other resident of the trailer, Ray Loya. Loya told Hagan that all the occupants of the trailer were under the age of 21.
Officer Nelson, who arrived with Ruffing, had gone to the rear of the trailer to prevent people from attempting to flee through the back window after Ruffing knocked on the door. When Nelson reported to Ruffing that an individual (not appellant) had broken out the back window and was trying to climb through, Ruffing entered the trailer to notify Garsez and Loya, the residents, that someone was breaking through their back window. Nelson shined his flashlight into the trailer and saw alcohol containers, which he reported to Ruffing. Nelson then entered the trailer through the window to "try and get everybody towards [Ruffing]." Ruffing ordered all the people inside the trailer to give him identification and line up.
Appellant, one of the occupants of the residence, complied with Ruffing's order. Ruffing testified that he gathered the IDs before ordering the occupants into a line. He also testified that it was only after gathering the identification and ordering people into a line that he had any direct contact with appellant. After appellant was lined up outside, Ruffing matched his face with his ID card, which stated appellant was under 21 years of age. Ruffing then noticed the smell of alcohol on appellant's breath and required him to submit to a preliminary breath test (PBT). The PBT (reading) showed that appellant had consumed alcohol.
Appellant was tried on a Lothenbach stipulation. The district court found him guilty of Underage Consumption, Minn. Stat. § 340A.503, subd. 1 (2002); his sentence was stayed pending appeal.
The district court concluded that the search and seizure of appellant's person was justified because (1) Ruffing detected an odor of alcohol on appellant; (2) alcohol was in plain sight in the residence; and (3) appellant appeared to be under age 21. According to the court, these three facts provided individualized suspicion that appellant had illegally consumed alcohol and thus probable cause to search for alcohol. In relevant part, the district court stated in its memorandum accompanying the order:
However, once the officers were inside the residence, it is clear they decided to seize the occupants and detaining them further to require the preliminary breath test. This ...