This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0766
State of Minnesota,
Respondent,
vs.
Bradley Mikal Leritz,
Appellant.
Filed May 11, 2015
Affirmed
Rodenberg, Judge
Ramsey County District Court
File No. 62-CR-13-3245
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, LL. Rhyddid Watkins,
Special Assistant Public Defender, Faegre Baker Daniels, LLP, Minneapolis, Minnesota
(for appellant)
Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Bradley Mikal Leritz challenges the district court’s denial of his
suppression motion, arguing that police did not have a reasonable articulable suspicion to
conduct a pat search that resulted in the discovery of illegal drugs. We affirm.
FACTS
On July 19, 2012, St. Paul Police Department officers Michael Soucheray and
Chris Rhoades were on patrol. A colleague contacted Officer Soucheray stating that an
individual, Christopher Red Elk, had an outstanding warrant and that he was at a
residence in St. Paul that was close to the officers’ location at the time. The colleague
told Officer Soucheray that Red Elk was tall, had tattoos and had a short haircut. Officer
Rhoades testified that the officers had “a very vague description” of Red Elk. Officer
Soucheray testified that they “knew that in previous attempts to locate Mr. Red Elk, by
the time officers were on scene he tends to disappear and vanish into thin air,” and that
Red Elk had “an assaultive history, weapon history[, and] [f]leeing history.” The officers
also knew that the residence at which Red Elk was reportedly located “was a known . . .
dope house.”
Officer Soucheray testified that he and Officer Rhoades “drove directly to the
[residence] without stopping to pull up [Red Elk’s] pictures or things like that, because
we wanted to get there as fast as possible.” The officers testified that retrieving booking
photos “takes quite a bit of time” because the internet in the squad car is often slow, and
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that because Red Elk had a history of fleeing they wanted to get to the residence as
quickly as possible before Red Elk left.1
Upon arriving at the residence, the officers parked a few houses away. As they
walked up the driveway toward the residence, a male, later identified as appellant
Bradley Leritz, was walking toward them, away from the residence and the garage.
Officer Rhoades testified that appellant “[f]roze in place” and that he had “a deer in the
headlights look,” Officer Soucheray said appellant had “a shocked or surprised look.”
When appellant saw the officers, he turned around and briskly walked back toward the
residence. Officer Soucheray then told appellant to stop and put his hands behind his
back. He also testified that he “had no idea who [appellant] was” and that “because of his
reaction to seeing us we weren’t going to allow him to walk back either into the house or
into the garage where they could have an opportunity to gain access to weapons or
anything.”
Officer Soucheray “did a Terry frisk [of appellant] for weapons, because of the
history of Red Elk [and they] weren’t sure if [appellant] was Red Elk.” During the pat
search, Officer Soucheray noticed a “large bulge in [appellant’s] front pocket” and in his
pat search, outside appellant’s pocket, he felt a round object with sharp edges that Officer
Soucheray recognized from his training and experience as narcotics. Officer Soucheray
retrieved the substance from appellant’s pocket, asked him what it was, and appellant
1
The district court found the officers “did not get a photo of Red Elk because the internet
in the squad was too slow and they didn’t have time.”
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responded that it was methamphetamine.2 Neither officer asked appellant his name until
after the pat search was completed and the drugs were seized. Red Elk is Native
American. Appellant is Caucasian.
Appellant was charged with second-degree possession of methamphetamine in
violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2012). Appellant moved the district
court to suppress the seized evidence. The district court denied appellant’s suppression
motion. Appellant waived his right to a jury trial and proceeded with a stipulated-facts
trial. The district court found appellant guilty. This appeal followed.
DECISION
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
‘we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). We review
reasonable suspicion for a Terry stop in a warrantless search de novo. In re Welfare of
G.M., 560 N.W.2d 687, 690 (Minn. 1997). We consider the totality of the circumstances
in determining whether a Terry stop is justified. State v. Britton, 604 N.W.2d 84, 87
(Minn. 2000).
2
A Minnesota Bureau of Criminal Apprehension test determined that the substance was
19.8 grams, containing methamphetamine.
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I.
Appellant argues that the police did not have a reasonable, articulable suspicion to
stop and pat search him and that the district court therefore erred in denying his
suppression motion.
The United States and Minnesota Constitutions protect citizens from unreasonable
searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “Warrantless
searches are per se unreasonable . . . subject only to a few specifically established and
well-delineated exceptions,” one of which is a pat-down search for weapons. State v.
Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (quotation omitted), aff’d Minnesota v.
Dickerson, 508 U.S. 36, 113 S. Ct. 2130 (1993). A police officer may stop and frisk an
individual when the officer has “a reasonable, articulable suspicion that a suspect might
be engaged in criminal activity” and if “the officer reasonably believes the suspect might
be armed and dangerous.” Id.; see also Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868,
1884-85 (1968) (stating a pat search of outer clothing is permitted when both factors are
present “to discover weapons which might be used to assault” the officer).
Before conducting a Terry search, an officer must have reasonable suspicion
“based on specific, articulable facts” and a “particularized and objective basis for
suspecting the seized person of criminal activity.” State v. Cripps, 533 N.W.2d 388, 391
(Minn. 1995). Courts “are deferential to police officer training and experience and
recognize that a trained officer can properly act on suspicion that would elude an
untrained eye.” Britton, 604 N.W.2d at 88-89. While “merely being in a high-crime area
will not justify a [Terry] stop,” evasive conduct, such as “eye contact with police,
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combined with [a] departure from a building with a history of drug activity” can justify a
search based on reasonable suspicion. Dickerson, 481 N.W.2d at 843.
Here, the officers had a general description of Red Elk, for whom there was an
active arrest warrant, as they approached a known “dope house.” In addition to the
generally understood relatedness of drug dealing, weapons, and violence, State v. Craig,
826 N.W.2d 789, 797 (Minn. 2013); United States v. Bustos-Torres, 396 F.3d 935, 943
(8th Cir. 2005), the officers had specific knowledge that a person they believed to be at
the residence had a history of assaultive behavior involving weapons. When they saw
appellant walking down the driveway away from the house and garage, he looked
shocked and surprised at seeing the officers. He displayed a “deer in the headlights look”
and turned around and briskly walked back toward the residence. Appellant appeared to
the officers to be tall, with short hair and a tattoo, similar to the general description they
had of Red Elk. Officer Soucheray testified that he did not want to allow this person to
go into the house or garage where he “could have an opportunity to gain access to
weapons” and so he stopped appellant.
Dickerson is instructive in our analysis of the propriety of this stop and frisk. 481
N.W.2d at 843. Here, appellant was leaving a known drug house and exhibited evasive
conduct, similarly to Dickerson. Id. (stating “evasive conduct after eye contact with
police, combined with his departure from a building with a history of drug activity,
justified police in reasonably suspecting criminal activity.”) Here, police had a
reasonable suspicion that the person approaching them may be Red Elk, an individual
with an “assaultive” history, who might be armed and dangerous. The district court also
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found that the appellant’s “evasive conduct after eye contact with police combined with
his actions justify reasonable suspicion that the person is involved in criminal activity.”
Appellant does not argue the district court’s findings are clearly erroneous, and the record
supports the district court’s determination of reasonable suspicion to stop and frisk
appellant.
The totality of the circumstances included the district court’s finding of appellant’s
evasive conduct and the information the officers had about the residence, Red Elk, and
their training and experience. These circumstances are sufficient to establish reasonable
suspicion that appellant was engaged in criminal activity and might be armed and
dangerous, permitting a Terry stop and pat search.
Appellant questions the officers’ judgment and argues that there is “no reasonable
basis” for the officers to believe that appellant was Red Elk, emphasizing that Red Elk is
Native American and appellant is not. The district court found that the officers knew that
Red Elk was Native American, but also found that at the point in time when the officers
asked appellant to stop, there was a “possibility that the man was Red Elk.” The record
supports this finding. That the stop and frisk is ultimately found to have been of someone
other than the person sought to be arrested does not render the police action
constitutionally infirm. See United States v. Gilliam, 520 F.3d 844, 847-48 (8th Cir.
2008) (stating that there was reasonable, articulable suspicion to support a Terry frisk on
the defendant when he was at Simpson’s residence, the police had an arrest warrant for
Simpson, the defendant and Simpson argued over Simpson’s identity, and officers were
unable to eliminate all reasonable suspicion that the defendant was not Simpson). Police
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may stop and frisk only individuals of whom they are reasonably and articulably
suspicious, but are not expected to resolve all reasonable doubt of identity before acting.
Id. at 847.
II.
Appellant also argues that, even if the officers had reasonable suspicion to conduct
a Terry stop of appellant, they impermissibly broadened the scope of the search when
they retrieved the methamphetamine from appellant’s pocket.
A Terry stop “permits a protective frisk for weapons.” Dickerson, 481 N.W.2d at
844. When police are assured an individual has no weapons, “the frisk is over.” Id. The
state has the burden of demonstrating that a search was “sufficiently limited in scope and
duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26 (1983). “The
legality of a pat search depends on an objective examination of the totality of the
circumstances.” State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014).
“If a police officer lawfully pats down a suspect’s outer clothing and [an object’s]
identity [is] immediately apparent [and] the object is contraband, its warrantless seizure
would be justified.” Minnesota v. Dickerson, 508 U.S. 366, 376-77, 113 S. Ct. 2130,
2137 (1993); see also State v. Krenik, 774 N.W.2d 178, 185 (Minn. App. 2009) (stating
this court has recognized the plain-feel exception to the warrant requirement), review
denied (Minn. Jan. 27, 2010). Immediately apparent “does not mean that an officer must
be certain about the object’s identity; rather an officer must have probable cause to
believe that the item is contraband before seizing it.” Krenik, 774 N.W.2d at 185
(quotation omitted); see also Texas v. Brown, 460 U.S. 730, 741, 103 S. Ct. 1535, 1543
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(1983) (stating the phrase “immediately apparent” in referring to a plain-view doctrine
“was very likely an unhappy choice of words, since it can be taken to imply that an
unduly high degree of certainty as to the incriminatory character of evidence is
necessary”).
The district court found that “[b]ased upon [Officer Soucheray’s] training and
experience [he] thought that this might be narcotics.” This finding is supported by
Officer Soucheray’s testimony that he “noticed there was a large bulge in [appellant’s]
front pocket” and that when he “ran [his] hand down the front of [appellant’s] pockets . . .
[and] could feel a round object with sharp edges” that he then recognized as likely being
a controlled substance.
The seizure here occurred during the frisk for weapons, and not after the search
for weapons was complete. Our decision in Krenik supports the district court’s
conclusion that the scope of the pat search was permissible. 774 N.W.2d at 185. In
Krenik, the officer searching Krenik “could feel a smoking glass tube and recognized it as
contraband” but also testified during cross examination that “she could not be certain that
the object was a glass pipe and it could have been something else.” Id. We concluded
that the officer’s testimony provided adequate support for the district court’s finding that
there was a “basis to suspect that the item was a crack pipe.”3 Id.
We conclude that Officer Soucheray’s retrieval of methamphetamine from
appellant satisfied the “immediately apparent” standard used in Krenik. Id. Officer
3
Here, the district court did not make specific findings regarding the seizure of
contraband from appellant’s pocket, but did conclude that the totality of the
circumstances justified seizure apprehension of appellant and permitted the pat search.
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Soucheray testified that he knew by the bulge and the feel of the object that it was likely
contraband. The plain-feel exception does not require an “unduly high degree of
certainty,” and we conclude that the pat search and seizure of methamphetamine from
appellant was within the permissible scope of the pat search. Id. (quotation omitted).
III.
Lastly, appellant argues that Officer Soucheray had no basis to remove the
contraband from appellant’s pockets. The state argues that appellant did not raise this
issue to the district court, and has therefore waived it on appeal. The state argues that it is
particularly prejudiced here because the state “was not on notice that it needed to create a
detailed record on the removal of the methamphetamine from appellant’s pants.”
Because appellant did not raise this argument to the district court, we decline to
address it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court generally
will not decide issues which were not raised before the district court, including
constitutional questions of criminal procedure.”).
Affirmed.
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