State of Minnesota v. Dillen James Hinkemeyer ( 2017 )


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  •                           This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2016).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A16-0622
    State of Minnesota,
    Respondent,
    vs.
    Dillen James Hinkemeyer,
    Appellant.
    Filed February 21, 2017
    Affirmed
    Larkin, Judge
    Hennepin County District Court
    File No. 27-CR-15-14059
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Assistant County
    Attorney, Minneapolis, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
    Judge.
    UNPUBLISHED OPINION
    LARKIN, Judge
    Appellant challenges his conviction of possession of a firearm by a prohibited
    person, arguing that the district court erred by denying his motion to suppress the firearm
    as the fruit of an unconstitutional traffic stop. We affirm.
    FACTS
    Respondent State of Minnesota charged appellant Dillen James Hinkemeyer with
    possession of a firearm by a prohibited person after a sheriff’s deputy stopped a vehicle in
    which he was a passenger and discovered a shotgun in the vehicle. Hinkemeyer moved to
    suppress the shotgun.
    The district court held an evidentiary hearing on the suppression motion. Hennepin
    County Sheriff’s Department Deputies Tyson Donnelly and Christian Jung testified at the
    hearing. The district court found them credible and the relevant facts to be as follows. At
    approximately 1:00 a.m., Deputy Donnelly was patrolling alone in Brooklyn Center. He
    observed a Dodge Intrepid traveling on Interstate 694, checked the vehicle’s license plates,
    and learned that the vehicle’s owner had a suspended driver’s license. Deputy Donnelly
    stopped the vehicle after he observed its driver change lanes without signaling.
    Deputy Donnelly approached the driver, who provided a Missouri driver’s license.
    While the driver looked for his insurance information, Deputy Donnelly noticed that the
    vehicle’s passenger, Hinkemeyer, was acting nervous, “frantically texting” on his phone,
    and refusing to make eye contact.        Deputy Donnelly found this behavior odd and
    concerning. Deputy Donnelly testified that he asked Hinkemeyer for identification, which
    2
    Hinkemeyer was unable to produce. Deputy Donnelly asked Hinkemeyer for his name.
    Hinkemeyer paused and provided a name that Deputy Donnelly thought was false. Deputy
    Donnelly then asked Hinkemeyer for his date of birth. Hinkemeyer provided his real name
    and date of birth. Deputy Donnelly asked Hinkemeyer if he had any active warrants, and
    Hinkemeyer admitted that he had an active parole-violation warrant. Deputy Donnelly
    confirmed that the driver’s license was suspended and that Hinkemeyer had an active
    warrant.
    Deputy Jung, a K-9 handler, arrived to assist Deputy Donnelly. The deputies
    arrested Hinkemeyer on the warrant, searched him incident to arrest, and found a glass
    methamphetamine pipe on his person. The deputies decided to do a K-9 search of the
    vehicle. While preliminarily searching for potential hazards to the K-9, Deputy Jung
    moved a duffel bag and discovered a shotgun next to the passenger seat where Hinkemeyer
    had been seated. The K-9 search revealed a small amount of marijuana, and a follow-up
    search of the duffel bag revealed a disassembled shotgun and 20-caliber shotgun shells.
    The deputies cited the driver for driving without a valid license, released him at the scene,
    and impounded his vehicle. The vehicle was later subjected to an inventory search, which
    did not reveal additional contraband.
    As support for suppression, Hinkemeyer argued that “[t]he [deputy] illegally
    expanded the scope of the traffic stop by requesting [his] identification,” that “the dog sniff
    . . . required probable cause,” and that the “search . . . should not be categorized as an
    inventory search.”
    3
    The district court denied Hinkemeyer’s motion to suppress, concluding that
    “[Deputy Jung] had reasonable articulable suspicion of drug-related activity prior to
    moving the duffel bag and beginning the K-9 search of the vehicle,” and that the “inventory
    search of the [vehicle] was proper” and “certainly would have revealed the shotgun had it
    not already been discovered.” The district court did not address Hinkemeyer’s argument
    that Deputy Donnelly improperly expanded the scope of the stop by asking Hinkemeyer
    for identification.
    A jury found Hinkemeyer guilty of possession of a firearm by a prohibited person,
    and the district court sentenced him to serve 60 months in prison. This appeal follows.
    DECISION
    Hinkemeyer contends that the district court erred by denying his motion to suppress.
    He argues that “[Deputy] Donnelly improperly expanded the scope of the stop when [the
    deputy] asked Hinkemeyer for his identification,” and that “[b]ecause discovery of the
    shotgun was not inevitable, [his] conviction must be reversed.”1
    The district court did not address Hinkemeyer’s argument that Deputy Donnelly
    expanded the scope of the traffic stop when he asked Hinkemeyer for identification. An
    appellate court may consider a previously unaddressed issue if it involves “a legal question
    and the parties had an opportunity to brief the question.” McKenzie v. State, 
    872 N.W.2d 865
    , 872 (Minn. 2015). The factual record regarding the issue must be adequately
    developed. See State v. Gauster, 
    752 N.W.2d 496
    , 508-09 (Minn. 2008) (declining to
    1
    Hinkemeyer does not challenge the district court’s conclusion that the K-9 search was
    lawful.
    4
    consider an issue first raised on appeal, partly because the record was not sufficiently
    developed). Because Hinkemeyer’s appellate argument was briefed by both parties and
    the factual record is adequately developed, we consider the issue.
    The Fourth Amendment of the U.S. Constitution and article I, section 10 of the
    Minnesota Constitution protect “against unreasonable searches and seizures.” Warrantless
    searches and seizures are per se unreasonable unless they fall under an established
    exception. State v. Othoudt, 
    482 N.W.2d 218
    , 221-22 (Minn. 1992) (citing Katz v. United
    States, 
    389 U.S. 347
    , 357, 
    88 S. Ct. 507
    , 514 (1967)). The “touchstone of the Fourth
    Amendment is reasonableness,” which “is measured in objective terms by examining the
    totality of the circumstances.” Ohio v. Robinette, 
    519 U.S. 33
    , 39, 
    117 S. Ct. 417
    , 421
    (1996) (quotation omitted). The Supreme Court has “consistently eschewed bright-line
    rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” 
    Id.
     The
    Supreme Court has also “expressly disavowed any litmus-paper test or single sentence or
    paragraph rule, in recognition of the endless variations in the facts and circumstances
    implicating the Fourth Amendment.” 
    Id.
     (quotations omitted).
    Under the principles set forth in Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
     (1968), a
    brief investigative stop based upon reasonable, articulable suspicion that an individual is
    engaged in criminal activity is reasonable under the Fourth Amendment. State v. Diede,
    
    795 N.W.2d 836
    , 842-43 (Minn. 2011). The Minnesota Supreme Court applies the Terry
    principles to traffic stops. State v. Askerooth, 
    681 N.W.2d 353
    , 363 (Minn. 2004). The
    supreme court evaluates reasonableness at two levels: (1) “whether the stop was justified
    at its inception” and (2) “whether the actions of the police during the stop were reasonably
    5
    related to and justified by the circumstances that gave rise to the stop in the first place.”
    Id. at 364. The scope of a Terry investigation is limited “to that which occasioned the stop,
    to the limited search for weapons, and to the investigation of only those additional offenses
    for which the officer develops a reasonable, articulable suspicion within the time necessary
    to resolve the originally-suspected offense.”       Diede, 795 N.W.2d at 845 (quotation
    omitted).
    When reviewing orders on pretrial motions to suppress evidence and the facts are
    not in dispute, we review de novo whether the police articulated an adequate basis for the
    seizure at issue. State v. Flowers, 
    734 N.W.2d 239
    , 247-48 (Minn. 2007).
    Hinkemeyer agrees that the traffic stop was justified at its inception. And he does
    not argue that the duration of the stop was unreasonable. Instead, he argues that Deputy
    Donnelly expanded the scope of the traffic stop by asking him for identification and that
    this expansion was not justified “by a reasonable, articulable suspicion of additional
    criminal activity.”
    Hinkemeyer does not cite authority establishing that asking a passenger to identify
    himself during a traffic stop constitutes an expansion of the initial seizure. In State v.
    Johnson, an officer took a passenger’s identification card during a traffic stop and returned
    to the squad car to perform a warrant check. 
    645 N.W.2d 505
    , 507 (Minn. App. 2002).
    This court concluded that the officer’s act of taking the identification card to his squad car
    and running a warrants check amounted to a seizure and that the police lacked reasonable
    articulable suspicion to justify the seizure. 
    Id. at 510-11
    . We therefore held that the seizure
    6
    was unreasonable. 
    Id. at 511
    . Johnson is readily distinguishable from this case because
    Deputy Donnelly did not take an identification card from Hinkemeyer.
    Caselaw provides other examples of police conduct that were deemed to have
    unlawfully expanded traffic stops. In Askerooth, the Minnesota Supreme Court concluded
    that the police expanded a traffic stop beyond its initial scope when they placed a driver in
    a squad car “for convenience purposes.” 681 N.W.2d at 367. In State v. Fort, the supreme
    court concluded that an officer’s questioning of a passenger regarding the presence of
    narcotics and weapons expanded the initial scope of a traffic stop. 
    660 N.W.2d 415
    , 416-
    17, 419 (Minn. 2003).
    On the other hand, the Minnesota Supreme Court has stated that officers may
    remove a passenger from a vehicle during a traffic stop for officer safety purposes. State
    v. Ortega, 
    770 N.W.2d 145
    , 152 (Minn. 2009); see also Maryland v. Wilson, 
    519 U.S. 408
    ,
    414-15, 
    117 S. Ct. 882
    , 886 (1997). And in State v. Krenik, this court held that “a police
    officer does not need an individualized justification for directing a passenger in a legally
    stopped vehicle to get out of the vehicle.” 
    774 N.W.2d 178
    , 179 (Minn. App. 2009), review
    denied (Minn. Jan. 27, 2010).
    Federal caselaw is also instructive. The United States Court of Appeals for the
    Eighth Circuit has stated that an “officer making a traffic stop does not violate the Fourth
    Amendment by asking the driver his destination and purpose” and that an officer “may
    undertake similar questioning of the vehicle’s occupants to verify the information provided
    by the driver.” United States v. Linkous, 
    285 F.3d 716
    , 719 (8th Cir. 2002); accord United
    States v. Brigham, 
    382 F.3d 500
    , 508 (5th Cir. 2004). The United States Court of Appeals
    7
    for the Tenth Circuit has stated that “because passengers present a risk to officer safety . . .
    an officer may ask for identification from passengers and run background checks on them.”
    United States v. Rice, 
    483 F.3d 1079
    , 1084 (10th Cir. 2007) (citing United States v. Jenson,
    
    462 F.3d 399
    , 403-04 (5th Cir. 2006); United States v. Purcell, 
    236 F.3d 1274
    , 1278 (11th
    Cir. 2001)).
    Indeed, courts frequently acknowledge the officer-safety concerns attendant to
    traffic stops. For example, the Minnesota Supreme Court has stated:
    We recognize the very real safety concerns associated
    with traffic stops in the early morning by officers working
    without a partner. We explicitly acknowledged the importance
    of officer safety in Varnado. 582 N.W.2d at 891 (stating “we
    agree that officer safety is a paramount interest”). The
    Supreme Court has similarly acknowledged the dangers
    confronted by the police during traffic stops.
    Askerooth, 681 N.W.2d at 368.
    The preceding cases inform our de novo determination regarding whether Deputy
    Donnelly unreasonably expanded the traffic stop by asking Hinkemeyer to identify himself.
    Unlike the cases in which officers were found to have unlawfully expanded traffic stops,
    Deputy Donnelly did not take possession of Hinkemeyer’s identification card, place him
    in a squad car, or ask him whether there were any illegal items in the vehicle or on his
    person. Based on the caselaw discussed above, we are hard-pressed to conclude that
    Deputy Donnelly’s questions to ascertain Hinkemeyer’s identity violated the Fourth
    Amendment.
    Under the totality of the circumstances, Deputy Donnelly’s questions regarding
    Hinkemeyer’s identity were a reasonable component of the traffic stop and did not
    8
    unlawfully expand the stop.          We therefore affirm the district court’s denial of
    Hinkemeyer’s motion to suppress without addressing Hinkemeyer’s argument regarding
    the inevitable-discovery doctrine.
    Affirmed.
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