Officers Lacked Reasonable Suspicion and Did Not Have Valid Consent to Have Seized Narcotics.

State v. Diede, Minn.S.Ct., 3/30/2011.  A deputy sheriff was staking out the residence of Jason Hanson, intending to arrest him for a previous drug charge.  Eventually, Jason and Ms. Diede left the residence in a gray pickup truck; Ms. Diede was driving.  The deputy learned that the plate on the pickup belonged to a red pickup.  When the gray pickup stopped at John Hanson’s residence the deputy believed that he saw Jason toss something back into the truck seat.  The deputy arrested Jason.

By this time Ms. Diede had got out of the truck. The deputy told her to stay put because he needed to talk to her.  She complied, standing around with her hands in her pockets.  The deputy asked her if she’d seen Hanson throw something back into the truck; she said she had not.  He then asked her what she had in her pockets.  She said she had a pack of smokes and a lighter.  She would not permit the deputy to look inside this cigarette package when he asked.  When requested to do so by a second cop, Ms. Diede turned out her pockets and produced a second cigarette package.  She then either immediately flipped open the top of the cigarette package or did so when asked, depending on which cop you asked.  The cops could then see the ends of a plastic baggie protruding from the package, which Ms. Diede quickly shut and started to crush.  The officers pried the package out of her hand.  The contents of the baggie tested positive for methamphetamine and weighed 0.3 grams.

Ms. Diede moved to suppress the methamphetamine.  First, she said that the deputies did not have a reasonable suspicion that she was involved in criminal activity at the time they seized her, which the parties agreed occurred when the deputy told her to stay put after she got out of the car.  The district court had concluded that the deputies had sufficient suspicion, based on these six factors:

(1) “Hanson, a passenger in Defendant’s vehicle, was being taken into custody on [probable cause for previous sales of] controlled substances”;

(2) Detective Jensen, before Hanson got out of the truck, saw Hanson looking at him and “moving [Hanson’s] right hand as if he was reaching in his pocket for something”;

(3) as Hanson got out of the truck, Detective Jensen “observed what he believed to be Hanson tossing something back into the vehicle”;

(4) Diede remained in the vehicle;

(5) Diede “denied that Hanson had thrown anything back into the vehicle”; and

(6) Diede appeared to be “nervous” and “fidgety” as she was questioned.

The court of appeals thought that the first four factors were sufficient to uphold the search.  Justice Meyer, in a 4-3 decision, also looks at the first four factors since the remaining two didn’t exist at the time the deputies seized Ms. Diede.  Justice Meyer found these factors woefully lacking:

The remaining four facts on which the district court relied do not provide an objective basis for suspecting that Diede was engaged in the criminal activity of possessing a controlled substance. The only basis in the record for suspecting that anyone possessed drugs was Detective Jensen’s assertion that he had probable cause to arrest Hanson for previous drug sales. But the record does not describe the foundation of that probable cause. Nor does it indicate any objectively articulable facts that would have allowed the police to reasonably infer that Hanson was carrying drugs at the time of his arrest on April 22. The record also does not indicate whether Hanson recognized Detective Jensen as a law enforcement officer, which would be necessary to support the officer’s suspicion that Hanson left something in the truck in response to the presence of the police. The record does not indicate that any of the officers saw Diede reach for anything while she was in the truck or that the officers looked into the truck to see if the object they saw Hanson leave there had been removed from the truck.

The court also concluded that because the officers did not have a reasonable suspicion that Ms. Diede was engaged in drug related criminal activity, the request to search the cigarette package exceeded the scope of any temporary investigative seizure.  Next, the majority rejects the claim that Ms. Diede consented to that search:

At the time Diede opened her cigarette package, she had been seized, was subject to a show of police force, had received repeated requests to open the package, and had already refused consent to search the package.

Finally, the court rejects the claim of inevitable discovery of the meth, concluding that the state was relying on improper factors to support that claim.  Refusal to consent cannot establish probable cause to search.  Cf. State v. Jones, 678 N.W.2d 1, 12 n.3 (Minn. 2004).  Her nervousness under police questioning,alone, does not establish probable cause.  State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980), superseded by rule on other grounds, Minn. R. Crim. P. 26.01, subd. 4. 

Justice Dietzen, joined by Chief Justice Gildea and Justice Stras, dissented, concluding that the officers had both reasonable suspicion and a valid consent.