State v. Flowers

GILDEA, Justice

(concurring in part, dissenting in part).

I agree with the majority that this case should be reversed and remanded for a new trial, but I dissent from the majority’s conclusion that the gun should be suppressed.²⁹ I would hold that the police officers’ actions were reasonable and diligent, and supported by probable cause.

Before directly addressing the majority’s legal analysis, a brief synopsis of the evidence is necessary. Flowers’ car came to the attention of Minneapolis police on a city street in south Minneapolis, at night,³⁰ because the rear license plate on his car was not illuminated as required by law. The officers therefore attempted to stop Flowers. They activated their emergency lights and a spot light on their squad car.

Flowers did not stop, but turned into an alley.³¹ The police followed, lights flashing. Flowers still did not stop.

The police next sounded their air horn. Flowers still did not stop. The police sounded the air horn again, but Flowers still did not stop.

The police then turned on the siren in their squad car. Even though the squad car lights were flashing and its siren was blaring continuously, Flowers continued to drive down the alley. The squad car followed right behind.³²

There were two officers in the squad car following Flowers: Officer Hoff, who had about 20 years of experience as a police officer, and Officer Reynolds, who had about 25 years of experience in law enforcement. When Flowers did not immediately stop in response to these officers’ efforts, choosing instead to turn into an alley, the officers aimed their squad’s spot light directly into Flowers’ car. Thus, they were able to see Flowers “frantically” moving about the interior of his car in response to the officers’ escalating signals for him to stop. Officer Hoff testified that he saw Flowers moving as though he were “trying to take [the driver’s door] apart,” and that he saw Flowers “raising his hand [and] manipulating the door.”

Informed by his 20 years of experience, the first thing Officer Hoff thought was that Flowers had a gun. He explained: “Because in my experience, when somebody is acting like that, displaying that type of behavior, they are either reaching for a gun or hiding a gun or contraband, but the first thing I’m thinking about is a gun.” This testimony was corroborated by the testimony of Officer Reynolds.

I.

The majority holds that what the officers observed gave them a reasonable suspicion of two things: (1) that Flowers might be “armed and dangerous,” and (2) “that Flowers may have been involved in some type of criminal activity.” I agree. This reasonable suspicion allowed the officers to detain Flowers and to continue the detention so long as the basis for the reasonable suspicion for the detention remained, provided they acted diligently and reasonably. See State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002). We have instructed officers that in the context of such detentions they should proceed incrementally with their investigation. See State v. Askerooth, 681 N.W.2d 353, 365 (Minn.2004) (“Article I, Section 10 of the Minnesota Constitution requires that each incremental intrusion during a traffic stop be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.”). The officers proceeded in just such an incremental fashion in this case.³³

Before our decision today, there was support for each incremental step that the police officers took in this case to investigate their reasonable suspicion in a safe and secure manner. Our case law indicates that it was reasonable for the officers to approach Flowers with their weapons drawn. See State v. Munson, 594 N.W.2d 128, 137 (Minn.1999) (“We have recognized in the past that [i]f an officer making a reasonable investigatory stop has cause to believe that the individual is armed, he is justified in proceeding cautiously with weapons ready.” (internal quotation omitted)). It was reasonable for the officers to frisk Flowers. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff'd, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (“Because the stop was valid under Terry, police were justified in frisking the defendant if they reasonably suspected he could be armed and dangerous.”); see also Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (recognizing the “inordinate risk confronting an officer as he approaches a person seated in an automobile”). It was reasonable for the officers to have Flowers lie on the ground while they conducted the frisk. State v. Nading, 320 N.W.2d 82, 84 (Minn.1982) (“We believe that the officers acted reasonably in requiring defendant and Williams to lie on the ground during the time their identified and suspicious conduct were being investigated.”). It was reasonable to make a protective search of the interior of the vehicle. State v. Waddell, 655 N.W.2d 803, 810 (Minn.2003) (“A protective search of the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is armed and dangerous.”); see also Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Finally, it was reasonable for the police to handcuff Flowers and have him wait in their squad car while they continued their investigation. Munson, 594 N.W.2d at 137 (“[Bjriefly handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest, nor does placing the suspect in the back of a squad car while the investigation proceeds.”); State v. Moffatt, 450 N.W.2d 116, 120 (Minn.1990) (noting that requiring a defendant to sit in a police car for a short time does not take the situation beyond the realm of an ordinary traffic stop). The majority refuses to say which of these incremental steps authorized by our precedent was unnecessary to protect officer safety in this case. It likewise does not inform police how they might more reasonably ensure their safety while they conduct an investigation of a person the majority agrees the police reasonably believed was “armed and dangerous,” and who the police, according to the majority, reasonably believed was engaged in criminal activity.³⁴

Because the officers suspected that Flowers was hiding drugs, it was also reasonable for them to walk a narcotics-detection dog around the vehicle. See Wiegand, 645 N.W.2d at 135. As Officer Hoff testified, “because of his actions, what we think of [is] guns or drugs, some type of contraband. The individual was definitely trying to hide something or grab something, so we were going to have the K-9 check it out first.”

When the dog ruled out drugs, the officers quite reasonably believed Flowers had hidden a weapon. Officer Hoff returned to the area of the car he had seen Flowers manipulate — the driver’s door. As he explained,

Then I approached the vehicle. The driver’s door was still opened when I was walking up there. I could see that a portion; a panel on the driver’s door, the lower left part opposite the hinges; was loose. It had a little gap in it * * * [b]ut because this driver was manipulating the door, I keyed on the door because it was apart.

It was at this point that the officer found the gun.

The majority, in essence, finds that it took the officers too long to find the gun, and therefore, they exceeded the scope of a Terry stop.³⁵ The majority does not conclude, however, that the police exceeded the scope of a permissible Terry stop through the conduct up to and including the use of the dog. Instead, the majority holds that the police went too far in returning to the car after the dog revealed that Flowers had not hidden drugs. Thus, the majority must acknowledge that the 30-second interior search of the car (which occurred simultaneously with the frisk of Flowers and before the dog sniff) was reasonable as a protective search. Waddell, 655 N.W.2d at 810; see also Long, 463 U.S. at 1049, 103 S.Ct. 3469. The majority basically writes a new rule of law instructing officers that if they conduct a protective search under Waddell, they must hunt until they find the weapon or contraband before leaving the passenger compartment because they will not be permitted to reenter, or even apparently reapproach, the vehicle. But this rigid and inflexible new rule of law is inconsistent with our earlier instruction that police should proceed in-erementally. See Askerooth, 681 N.W.2d at 365. This type of categorical rule has also been rejected elsewhere. See United States v. Osbourne, 326 F.3d 274, 278 (1st Cir.2003) (rejecting the defendant’s proposed “categorical rule: that a second pat-frisk is per se unreasonable in the absence of evidence that the first frisk was cursory or that the subject of the frisk had an opportunity to arm himself in the interim” and concluding that the reasonableness of a subsequent frisk must be determined based on the circumstances of each individual case); see also 4 Wayne R. LaFave, Search & Seizure § 9.6(b), at 663 n. 210 (4th ed. 2004) (“Sometimes the initial frisk will be inconclusive, justifying another.”). I likewise would not apply such a rule in this case.³⁶

Not only did it apparently take the officers too long to find the gun, but the majority also concludes that at the time the gun was found the officers no longer had a reasonable basis to believe Flowers was armed and dangerous. Because of its assumption that officer safety could no longer be an issue with five officers on the scene and Flowers locked in the back of one of the squad cars, the majority concludes that the officers’ actions exceeded the scope of a permissible Terry stop. But the majority’s new rule would mean that officers may continue to pursue an investigation only if they continue to fear for their safety. Such a rule is inconsistent with Terry itself, which recognizes that officers should “neutralize” their concerns about safety before they investigate. See Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As the Court aptly noted there: “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.” Id. at 23, 88 S.Ct. 1868.

Moreover, in Michigan v. Long the U.S. Supreme Court specifically rejected as “mistaken in several respects” the same rationale the majority follows in arriving at its rule. See 463 U.S. at 1051, 103 S.Ct. 3469. In Long, officers observed the defendant’s car proceeding in an erratic manner and at an excessive rate of speed. Id. at 1035, 103 S.Ct. 3469. The officers saw the car swerve into a ditch, and they approached to investigate. Id. When they got to the scene, the defendant, who appeared to be under the influence, was outside and standing near the rear of his car. Id. at 1035-36, 103 S.Ct. 3469. They asked him for the vehicle registration and as he went back to his car to retrieve it, the officers followed, looked in and saw a hunting knife on the floor of the driver’s side of the car. Id. at 1036, 103 S.Ct. 3469. While the defendant stood at the rear of the car with one officer, the other officer looked through the car with his flashlight to search for weapons. Id. He noticed something protruding from the armrest, went inside the car to investigate, and saw what appeared to be marijuana on the front seat. Id.

The Michigan Supreme Court suppressed the drugs holding “that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile.” Id. at 1051, 103 S.Ct. 3469 (emphasis added). The Supreme Court reversed holding that the officers’ actions were reasonable. Id. at 1035, 103 S.Ct. 3469. That the suspect was “under the brief control of a police officer,” was not dispositive because “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” Id. at 1051-52, 103 S.Ct. 3469. Rather than the bright line rule of “control” adopted by the Michigan Supreme Court, the Supreme Court reiterated that assessing the reasonableness of officers’ actions is determined by “ ‘balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ ” Id. at 1046, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). Applying that balance, the Court upheld as reasonable the officers’ limited search of the vehicle because the officers were “justified * * * in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle.” Long, 463 U.S. at 1050, 103 S.Ct. 3469.³⁷

We have also recognized that officers may search inside a vehicle for weapons prior to releasing a suspect into that vehicle precisely because when a suspect is “allowed to reenter his car after the search, he would be able to reach under the seat, pull out a gun, and start shooting.” State v. Gilchrist, 299 N.W.2d 913, 917 (Minn.1980). We acknowledged the argument that the suspect “could hardly be viewed as a potential assailant after he had returned to his vehicle and knew he had not been detained by the police.” Id. (internal quotation omitted). But we recognized “that there may be special situations in which it can fairly be assumed that the danger continues.” Id. at 918. (internal quotation and brackets omitted). We found such a “special situation” in Gilchrist based on the officers’ knowledge of the suspect involved in that case. Id. I would follow the same rationale in this case.³⁸

Here, when the officers tried to stop Flowers’ vehicle, he did not stop. Rather, in response to the officers’ attempts to stop him, the officers saw what they reasonably believed was Flowers trying to hide something inside his vehicle. As Officer Hoff testified, the first thing he thought Flowers was hiding was a gun. In my view, consistent with Michigan v. Long and Gilchrist, the officers’ actions here were reasonable.³⁹

We have warned that “[a] court reviewing whether the police acted diligently and reasonably should not indulge in unrealistic second-guessing.” Moffatt, 450 N.W.2d at 119; see also United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (“A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. * * * The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”). The majority’s conclusion that the officers’ reasonable suspicion “had dissipated” by the time they found the gun strikes me as exactly the type of “unrealistic second-guessing” we said in Moffatt was not to be done. Moffatt, 450 N.W.2d at 119.

Indeed, we have never held police action unreasonable as a matter of law based on our assumptions of dissipation. Rather, we have done so only based on actual evidence in the record showing that police learned new information during their investigation which in fact caused the suspicion to dissipate. See State v. Pike, 551 N.W.2d 919, 922 (Minn.1996) (noting that reasonable suspicion “evaporates” if officers become aware “of any facts which would render unreasonable” the assumption underlying their suspicion).

For example, in State v. Burbach, the question was whether the police exceeded the scope of a permissible Terry stop through a search of the interior of the vehicle. 706 N.W.2d 484, 486 (Minn.2005). The car had been pulled over for speeding. Id. As the officer spoke to the driver, Burbach, he could detect an odor of alcohol, so he performed sobriety tests. Id. After these tests, “[t]he officer concluded that the odor of alcohol did not come from Burbach.” Id. Instead, the adult passenger volunteered to the officer that he had been drinking. Id. at 489. Because the officer knew, after investigation, that the driver had not been drinking, we concluded that the officer’s concern for a driving while impaired offense had resolved and there was not a reasonable basis to search the interior of the car. Id.

As Burbach illustrates, we do not speculate that police officers’ suspicion of criminal activity dissipated. Instead, we require (at least we did before today) evidence of dissipation. There is no such evidence in this record.

Rather than a dissipation of reasonable suspicion that Flowers was engaged in criminal activity, the evidence confirms that the officers’ suspicion continued, and in my view, it became even more pronounced. The suspicion became more pronounced because after taking the incremental steps our precedent authorized (the frisk of Flowers, the flashlight looks,⁴⁰ the 30-second protective sweep of the vehicle, and the dog sniff), the officers still had no explanation for Flowers’ frantic and furtive movements or his unwillingness to stop in response to the police. The record does not reflect that the officers discovered anything (for example, an insurance card, a spilled bottle of soda, an open bottle of alcohol) that would have been consistent with Flowers’ furtive movements. Under the facts of this case, where the officers’ incremental steps failed to reveal anything to explain, or that was consistent with, Flowers’ frantic behavior as police were trying to stop him, I would conclude that this absence of evidence did nothing to render unreasonable what the majority admitted was earlier a reasonable suspicion that Flowers was engaged in criminal activity and was armed and dangerous. Instead, I would find that the absence of evidence served to enhance the officers’ suspicions.

The majority attempts to find support for its dissipation theory in State v. Payne, 406 N.W.2d 511 (Minn.1987), but that case contradicts the majority’s assumption of dissipation. In Payne, we applied the same rule I apply, namely, something that happens during an investigation — in that case it was the reaction of a police dog— may properly serve to confirm the reasonableness of an officer’s suspicion. See id. at 514 (“[Sjhortly before Officer Waller frisked defendant, Officer Champion and his tracking dog appeared on the scene and Champion stated that the dog had followed the track from the house where the intrusion occurred to the place where Waller had first seen defendant * * see also Wiegand, 645 N.W.2d at 136 (noting that scope of permissible Terry stop can be expanded to support “investigation of only those additional offenses for which the officer develops a reasonable, articula-ble suspicion within the time necessary to resolve the originally-suspected offense.”). Similar to Payne, what happened during the investigation in this case — specifically the officers’ failure to discover anything to explain Flowers “frantic” and “furtive” movements — confirmed the reasonableness of the officers’ suspicion in my view.

In addition to the officers’ failure to discover anything to explain what they saw, Flowers’ own statements to the police likewise served to reinforce the officers’ suspicion. As the majority recognizes, when the officers were in the process of frisking Flowers, they asked him what he had in the car and he said that he did not have anything in the car. The officers also asked him to explain his behavior inside the car while the officers were trying to stop him and Flowers said that he was not doing anything. These statements contradicted what the officers had observed Flowers doing when he refused to stop his vehicle. And, as the Texas court recognized in Balentine, these statements from Flowers served to reinforce the officers’ suspicion. See Balentine v. State, 71 S.W.3d 763, 769-70 (Tex.Crim.App.2002).

This is not to suggest that a police officer is entitled to search until he discovers a weapon or contraband. Rather, the standard advocated here is one that allows officers who observe repeated furtive conduct which supports a reasonable belief that the person is armed and dangerous and is hiding something (a belief the majority concedes exists in this case) in an area of a vehicle where nothing is found to explain that furtive conduct, it is reasonable and diligent for the officers to keep looking.

That is just what the officers did in this case. They did not return to the vehicle and begin to dismantle it. They did not expand their search into the trunk of the vehicle or any other area that was not reasonably related to Flowers’ movements. Rather, one officer approached the vehicle when the driver’s door was open and noticed that the panel on the driver’s door was loose from its frame. In light of Flowers’ repeated furtive movements near the driver’s door, his incredible claim that he was not doing anything when the officers were trying to the stop him, the absence of anything in the passenger compartment to explain Flowers’ movements, and the dog’s elimination of drugs, it was reasonable for the officers to pull the frame back “a little” to see if Flowers may have hidden a weapon in this area of the passenger compartment.

II.

In the alternative, I would conclude, as did the court of appeals, that when the officer returned to the car and observed that the driver’s door panel was loose, the officers had probable cause to believe that Flowers’ car contained contraband. Thus, I disagree with the majority’s holding that the search was not valid under the automobile exception. See State v. Search, 472 N.W.2d 850, 852 (Minn.1991) (discussing automobile exception).

I agree with the majority that furtive movements alone do not provide probable cause. But this case is about much more than furtive movements. See State v. Gallagher, 275 N.W.2d 803, 808 (Minn.1979) (holding that defendant’s furtive movements “attempting to shield” a paper bag from the officer, together with officer’s observations that defendant and his passenger had “widely-staring eyes” gave officer probable cause to believe car contained contraband).

First, Flowers failed to stop when the officers tried to stop him. See People v. Superior Court, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, 460 (1970) (“Of the various circumstances stressed * * * perhaps the most persuasive [of probable cause] is a driver’s failure to stop his car promptly when a police officer signals him to do so.”).⁴¹ Second, as he continued to drive, the police saw Flowers’ behavior and they testified that they believed, based on their training and experience, he was trying to hide a gun or contraband in the car. Third, when the officers asked Flowers what he had in the car he said that he had nothing in the car. And when the officers asked him to explain what they viewed to be his “frantic” behavior inside the car as they were trying to stop him, Flowers said that he was not doing anything. Flowers’ answers were inconsistent with what the officers had observed. See State v. Willis, 320 N.W.2d 726, 728 (Minn.1982) (noting that where “defendant had acted suspiciously as if he were trying to conceal something[,][d]efendant’s failure to give any explanation for this conduct only increased the grounds for suspicion”); see also State v. Harris, 333 N.W.2d 873, 875 (Minn.1983) (explaining that defendant’s furtive act of turning ring on his hand so that setting was not visible, in part, provided the officers with probable cause to believe one of the rings was stolen). Fourth, the officers failed to discover anything to explain Flowers’ movements during the frisk, the flashlight looks, the 30-second protective sweep of the car, and the dog-sniff. Fifth, as the officer approached the car, he saw that the door panel was loose. See Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (“To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel.”). This was the exact area the officers saw Flowers manipulating when he continued to drive down the alley after the police tried to stop him, and Officer Hoff testified that in his experience suspects hide contraband in the doors of cars.

We consider the “totality of the circumstances facing [the officers] at the time of the search” when assessing whether the police had probable cause. See Gallagher, 275 N.W.2d at 808.⁴² In my view, the five facts discussed above, considered together, provided the officers with probable cause to believe that Flowers had hidden contraband in the driver’s door. Accordingly, the search in which the officers located the gun was proper under the automobile exception.

I would hold that the district court properly denied Flowers’ motion to suppress.

29 . I would reverse and remand for a new trial because of the erroneous inference instruction, which I cannot conclude was harmless error on this record.

30 . The district court, chambered in Minneapolis, apparently took judicial notice of the fact that the neighborhood in which the police stopped Flowers was a high-crime area.

31 . Officer Hoff explained that Flowers did not stop in response to the squad car's emergency lights. Instead, Officer Hoff testified, Flowers “turned northbound in the alley from 43rd.”

32 .It is a misdemeanor for a person “to willfully fail or refuse to comply with any lawful order or direction of any peace officer invested by law with authority to direct, control, or regulate traffic.” Minn.Stat. § 169.02, subd. 2 (2006); see also Minneapolis, Minn., Code of Ordinances § 466.130 (2006) (prohibiting identical conduct). Yet the majority seemingly wants to justify Flowers' behavior as taken out of concern that if he stopped his car as directed, Flowers would be blocking the alley. There is no evidence in the record to support that Flowers had any such concern.

33 . The majority miscasts the standard by noting that "when the officers initiated the stop, the only offense they knew Flowers had committed was driving a vehicle without a rear license-plate light.” Of course, knowledge is not the standard, reasonable suspicion is the relevant standard. The majority also incorrectly assumes that the only violation of law about which the police were concerned was Flowers' driving without a light over his license plate. The police may have also suspected that Flowers was carrying a weapon without a permit in violation of Minn.Stat. § 624.714, subd. la (2006), or transporting a loaded, uncased gun in violation of Minn.Stat. § 97B.045, subd. 1 (2006). In short, once Flowers chose not to stop, but to drive down the alley to buy himself time to hide something from the police who were trying to stop him, this case became about much more than a broken license-plate light.

34 . Instead, the majority cites State v. Black-sten, 507 N.W.2d 842 (Minn.1993), a case about an arrest. Blacksten is inapposite to this case. Unlike the officers here, the officer who made the stop in Blacksten "had no intention of conducting any investigation.” Id. at 846. The majority also attempts to dismiss the precedent discussed above because (1) these cases authorize each individual action the police took in this case but not all of the steps taken together, (2) the officers' suspicions in these cases were "stronger” than in this case, and (3) the crimes suspected in these cases were “more serious” than that at issue here. Given that our precedent (before today) instructed police to proceed incrementally, that the officers observed Flowers trying to hide something from them as he continued to drive after the police tried to stop him, and that they suspected Flowers to be carrying a gun in a motor vehicle on a city street at night, the distinctions the majority draws are ones without any meaningful difference.

35 . The majority makes much of the fact that it is unknown exactly how long the officers searched the vehicle before they found the gun. But Flowers has not argued that the police exceeded the permissible duration of a Terry stop — he has only argued that the police exceeded the permissible scope of a Terry stop. Moreover, we have rejected strict time limits as the test for determining the reasonableness of police conduct. Moffatt, 450 N.W.2d at 119 (“Sometimes a 20-minute detention will be too long, sometimes a detention of more than an hour will not be unreasonable. * * * The fact that the police in a given case might have investigated the case in a different way arguably taking less time does not mean that the police acted unreasonably.”).

36 . The majority decides that Flowers' rights under the Minnesota Constitution were violated because the officers returned to the car after the dog sniff. But the majority does not articulate a "principled basis" for the conclusion that the Minnesota Constitution should be interpreted more broadly than the United States Constitution within the context of examining whether the police exceeded the scope of a permissible Terry stop. See Askerooth, 681 N.W.2d at 362. We recently noted that “[ljooking to the state constitution as an independent basis for individual rights is a task we approach with restraint and some delicacy, especially when the right at stake is guaranteed by identical or substantially similar language in the federal constitution.” State v. Anderson, 733 N.W.2d 128, 2007 WL 1704119, at *10 (Minn. June 14, 2007) (internal quotation omitted). The majority relies on Askerooth for its decision to interpret the Minnesota Constitution more broadly than the federal constitution. Askerooth does not answer the question in this case. We are not dealing with the question of whether the constitution protects against an arrest made in the context of minor traffic violation (something the federal constitution permits, but our state constitution prohibits after Askerooth). See 681 N.W.2d at 371. Here we address the permissible scope of a Terry stop, a concept that is drawn from the federal constitution. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). That the U.S. Supreme Court might someday make a sharp and radical departure from its jurisprudence applying Terry principles should not provide a basis for us to look to the Minnesota Constitution. It seems to me that today it is this court that is making the sharp and radical departure from well-established Terry principles.

37 . The Fourth Circuit followed this rationale in United States v. Holmes, 376 F.3d 270 (4th Cir.2004). In that case, two suspects were secured by police presence which consisted of "[flive or six police cruisers.” Id. at 272. The two suspects "were handcuffed behind their backs, frisked, and secured in caged, locked patrol cars, at least twenty feet away from” their car. Id. at 273. Yet the Fourth Circuit concluded that the officers had a reasonable fear for their safety justifying their protective search of the interior of the vehicle. Id. at 279-80 ("[R]egardless of the extent to which the suspects were incapacitated at the time of the search, the search of the car was a reasonable measure to protect the safety of the officers conducting the stop * * *.”).

38 . Several other states also recognize that officer concerns for safety continue to be objectively reasonable based on what might happen when a suspect is released into a car. State v. Wausnock, 303 A.2d 636, 637 (Del.1973) ("[T]he applicable standard of care is not to be measured solely as of the moment of search when driver and passenger were outside the automobile; it is to be measured, also, as of the time when they may have been permitted to return to the automobile.”); State v. Vandenberg, 134 N.M. 566, 81 P.3d 19, 28 (2003) ("We decline to say that an investigating officer cannot be in as much danger at the end of a traffic stop as at the beginning, or at least reasonably believe that to be so.”); State v. Smith, 66 Or.App. 516, 674 P.2d 1206, 1208 (1984) ("To justify the seizure of a weapon which could be used against the arresting officer, we shall not draw a fine line measuring the possible risk to the officer’s safety. The officer should be permitted to take every reasonable precaution to safeguard his life in the process of making the arrest.” (internal quotation omitted)); See State v. McGill, 234 Wis.2d 560, 609 N.W.2d 795, 804 (2000) ("It makes no sense to require an officer to cease a Teiry frisk simply because he or she has found it necessary to place the individual he or she is searching in handcuffs. If the officer ultimately finds no probable cause to arrest and releases the suspect, he remains at risk of an armed assault because he has not removed the threat by completing the protective frisk.”). I cannot sanction a rule that ignores this reality.

39 . The majority relies on Officer Reynolds' testimony that the videotape was turned off because the "situation was under control” to support its conclusion that the officers no longer reasonably feared for their safety. With Flowers locked in the back of the squad car, the officers were able to safely pursue their investigation. But the question is whether it continued to be reasonable for the officers to return to the car to find the weapon they thought they saw Flowers hiding before they placed him back into the vehicle. That the situation was temporarily "under control” says nothing about what would happen once Flowers returned to the car. Moreover, the fact that the officers may not have known that Flowers was a felon when they found the gun he had hidden does not change the result in my view. The officers observed Flowers’ frantic behavior, behavior that seemed to be taken directly in response to the officers’ efforts to stop him. The officers found nothing to explain that behavior and received information from Flowers that directly contradicted what they had witnessed. Under these circumstances, it was reasonable for the officers to return to the area they had seen Flowers manipulating before they returned him to his vehicle.

40 . Our caselaw indicates that the officers’ looks into the car with a flashlight were not searches. See State v. Alesso, 328 N.W.2d 685, 687 (Minn. 1982) ("In numerous cases we have upheld against fourth amendment challenge the practice of police officers routinely shining flashlights into automobiles ⅜ * State v. Liljedahl, 327 N.W.2d 27, 29 (Minn.1982) (noting that where car was lawfully stopped and while one officer "had the driver in the squad car checking his license, [the officer] was justified in reapproaching the stopped car and shining his flashlight in”).

41 . We described this decision from the California Supreme Court as "the seminal case concerning 'suspicious' or 'furtive' gestures.” Gallagher, 275 N.W.2d at 806.

42 . The majority individually analyzes each of the five facts discussed above and concludes that each is insufficient to provide probable cause. Of course my argument is not that each of the facts standing alone provides probable cause, but rather, in the totality of the circumstances, all of these facts gave the officers probable cause to search the vehicle in this case.