Mille Lacs County District Court File No. 48-CR-10-2434.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Janice S. Jude, Mille Lacs County Attorney, Daniel N. Rehlander, Assistant County Attorney, Milaca, Minnesota (for respondent)
Cathryn Middlebrook, Interim Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and Stauber, Judge.
On appeal from his controlled-substance and paraphernalia-possession convictions, appellant argues that the district court erred by denying his motion to suppress evidence obtained in a warrantless search of his person. Because there was not probable cause to believe that appellant was in constructive possession of the contraband that was discovered in his companion's backpack, the subsequent search of appellant was not made incident to a lawful arrest. We therefore reverse.
On October 31, 2010, appellant Richard George Mager was a backseat passenger in a vehicle traveling on Highway 169 in Mille Lacs County. Minnesota State Patrol Trooper Bryan Bearce stopped the vehicle because its rear tire was bouncing "violently" on the highway and the rear passengers were not wearing seatbelts. When Trooper Bearce approached the vehicle, he observed an open bottle of liquor between the two front seats. Trooper Bearce requested identification from the driver and the two rear passengers. The front passenger offered his identification as well. After performing a warrant check, Trooper Bearce informed the driver, R.H., that he was under arrest on an outstanding warrant for unpaid child support. Trooper Bearce searched R.H. and placed him in the patrol vehicle.
Trooper Bearce stated that he was going to search the vehicle for additional containers of alcohol and asked the three passengers to step out one at a time. Mager, who was seated in a back seat, exited the vehicle first and was frisked for officer safety. No contraband was found on him. Trooper Bearce asked the front passenger, M.H., whether the backpack at his feet belonged to him. M.H. replied that the backpack was his, and he stepped out of the vehicle. No contraband was found on M.H. during a frisk for officer safety. All the while, Trooper Bearce noticed the remaining rear passenger, S.N., covertly gesturing to him. S.N. exited the vehicle and, as he was being frisked, whispered to Trooper Bearce that there was "something" in the bags in the vehicle. When Trooper Bearce asked whether it was weapons or narcotics, S.N. indicated that "he did not know." Trooper Bearce discovered a bag of marijuana and a glass pipe on S.N.
Trooper Bearce then searched M.H.'s backpack. In it, Trooper Bearce found a metal pipe, a small bag of marijuana, and two hypodermic needles, one of which contained clear liquid that was later determined to contain methamphetamine.
As Trooper Bearce searched the vehicle, he noticed that M.H. was not complying with his instruction to face the opposite direction of the vehicle. Trooper Bearce handcuffed M.H. and moved him to the grassy area along the shoulder of the highway. Trooper Bearce instructed Mager and S.N. to move to the shoulder as well. As Trooper Bearce was walking back to the vehicle after having moved the passengers, S.N. again tried to communicate with Trooper Bearce. S.N. gestured toward the crotch of his pants, pointed at M.H. and Mager, and mouthed that something was "in their pants."
After back-up assistance arrived, Trooper Bearce searched each passenger. He unbuttoned the top button of their pants and lifted their shirts to expose the waistband of their pants. Trooper Bearce found nothing on M.H. or S.N. but discovered a small bag containing a white crystal substance and two napkins rolled around hypodermic needles sticking out of Mager's waistband. The white substance later tested positive for methamphetamine.
Mager was arrested and charged with fifth-degree controlled-substance possession in violation of Minn. Stat. § 152.025 (2010), possession of hypodermic syringes in violation of Minn. Stat. § 151.40 (2010), and possession of drug ...