Court Finds “Right to Frisk” From “Right to Stop” Where Stop Involved “Large Amounts of Narcotics”.

State v. Lemert, Minn.Ct.App., 3/25/2013.  Officers stopped a truck in which Mr. Lemert was a passenger.  The driver, T.A., was the actual target of the stop.  Officers had what the court consistently describes as “reasonable suspicion” that T.A. was involved in “large-scale drug activity,” and that T.A.’s truck  had been used the “day before”, (which morphed into “the day of” as the opinion went along),  the stop in a controlled buy of methamphetamine.  Unbeknownst to the officers who made the stop, other officers – including the officer who eventually is going to pat search Mr. Lemert - had information that Mr. Lemert had received methamphetamine from T.A.  After the stop, officers removed Mr. Lemert from the truck and then pat searched him; of course, they found drugs.  He moved to suppress those drugs.

At the time of the pat search there was no direct evidence that Mr. Lemert had been involved in the controlled buy from T.A.; officers had no “specific awareness” that Mr. Lemert possessed a weapon; and the officers did not see him make any unusual or “furtive” movements or gestures.  Rather, the officer conducted the pat search  based on officer safety considerations and because the department’s felony stop protocol said to pat search all persons who were removed from a vehicle involved in drug transactions.  The policy plays the odds, apparently in favor of the probability that anyone in the presence of suspected drug people either may possess weapons or behave in unpredictable and erratic behavior.

The trial court denied the suppression motion and the court of appeals affirms, resorting to the notion that “in certain circumstances, the right to frisk follows directly from the right to stop, such as when a stop involves suspected dealing in large amounts of narcotics.”  State v. Payne, 406 N.W.2d 511 (Minn. 1987).  This is not, so says the court, the “automatic companion” rule which would permit a pat down search on the sole basis that a companion of an arrestee is located in the immediate vicinity of the arrest.  State v. Eggersgluess, 483 N.W.2d 94 (Minn.Ct.App. 1992).  No, that concept has been rejected.  No, it takes a lawful stop on suspicion of dealing in “large amounts” of narcotics. 

Here, apparently, it was a quarter ounce of meth.

Payne (and thus this opinion) relied upon the 1987 edition of LaFave’s Fourth Amendment tome.  The text from this 1987 edition does not seem to have made the cut in the most recent edition.  Payne involved a delayed frisk of one of the suspects – Mr. Payne - in a burglary that had just occurred two blocks from the stop.  Here, Mr. Lamert wasn’t initially suspected of anything, at least by the officer who made the stop.  This analysis also doesn’t square with Ybarra v. Illinois, 444 U.S. 85, 94 (1979).  Recall that Mr. Ybarra was sitting in a bar – The Aurora Tap – when it just so happened that the cops were searching the place pursuant to a search warrant.  Mr. Ybarra got frisked just for being there, about which Justice Stewart said:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

So, the court here may have been on surer footing to have relied more, if not primarily, on the “collective knowledge” doctrine, which gets an “oh, by the way” analysis in the opinion.  At least then the collective knowledge of Mr. Lamert’s receipt of drugs from T.A. gets the state closer to a particularized suspicion of criminal activity by Mr. Lamert.