                        This opinion will be unpublished and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
                                   A14-1536

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Patrick Lamar Mobley,
                                       Appellant.

                              Filed September 8, 2015
                                     Affirmed
                                  Peterson, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-18867

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Sydney Hull, Certified Student Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Joel O’Malley, Special Assistant
Public Defender, Dorsey & Whitney, L.L.P., Minneapolis, Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Klaphake,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal from a conviction of felony possession of a firearm by a prohibited

person, appellant argues that his conduct was not sufficient to support a reasonable,

articulable suspicion that he was armed and dangerous, and, therefore, the evidence

discovered during a pat search for weapons should have been suppressed. We affirm.

                                         FACTS

       Minneapolis police officers were investigating liveability crimes, which include

nuisance violations and street-level narcotics offenses, in the Grant Street and Nicollet

Avenue neighborhood.      Officer Matthew Kipke put out a call to cite a person for

interfering with vehicular traffic. Kipke provided the person’s physical description and

reported that the person had gotten into the front passenger seat of a maroon sport utility

vehicle (SUV).

       Responding to the call, officers Efrem Hamilton and Chao Lee saw the SUV

parked illegally, pulled up behind it, and activated the squad car’s lights and siren. There

were two people in the SUV, the driver and a person, later identified as appellant Patrick

Lamar Mobley, in the front passenger seat. Hamilton saw Mobley look back quickly and

duck down. It appeared to Hamilton that Mobley was reaching underneath the seat or

somewhere down below. Hamilton testified:

              Q. When you saw those movements, did it make you think of
              anything?
              A. Yes, it did.
              Q. And what was that?
              A. Someone going to get a gun.


                                             2
      Lee approached the driver’s side of the vehicle, and Hamilton approached the

passenger side. Hamilton described Mobley as appearing “to be pretty nervous,” moving

his hands and continuously looking back toward Lee. Mobley appeared to be trying to

gauge the amount of time it would take Lee to reach the SUV. Hamilton became “pretty

suspicious on why [Mobley] was so concerned about Officer Lee and his position.”

When Hamilton got to the SUV, he slapped the rear passenger window to get Mobley’s

attention. Mobley “snapped around real quick and looked at [Hamilton]” and “began

moving his hands around, mostly his right hand but he kept his hands down.” Hamilton

twice told Mobley to open the window, but Mobley did not comply and instead kept

watching the officers. Mobley “seemed really nervous and panicky.” Eventually, the

passenger window came down, but Hamilton did not see who opened it.

      Hamilton told Mobley to put his hands on his lap where Hamilton could see them

and stop moving around. Mobley did not pay attention to Hamilton and instead appeared

to be trying to listen to the conversation between Lee and the driver. Mobley’s failure to

comply with Hamilton’s instruction to put his hands on his lap caused Hamilton to

become concerned for his safety. Hamilton asked Mobley to step out of the SUV and

instructed him to put his hands on his chest where Hamilton could see them. Mobley got

out of the SUV but kept his hands at his sides and expressed frustration with Hamilton’s

instruction. Mobley had a tense jaw and an angry look on his face. Mobley was holding

a belt in his right hand, and Hamilton had seen a belt used as a weapon.

      Hamilton handcuffed Mobley to pat-search him for a weapon. Hamilton explained

that he believed that Mobley possessed a weapon


                                            3
             [b]ecause of the movements that he was making in the car. He
             wasn’t listening to what I was telling him to do. When he got
             out of the car, he was concerned with stepping toward me that
             he faced toward me, which I took he was going to fight, when
             he started looking off my shoulder side, which is the opening
             where he would have been able to leave, appeared that he was
             ready to take flight and try to get away. And . . . I was
             concerned for my safety and . . . why he didn’t want to turn
             his back to me. He wanted to basically control the way that I
             observed him.

      Hamilton found a handgun in Mobley’s pants pocket. Mobley, who has prior

convictions of carrying a pistol without a permit and first-degree aggravated robbery, was

brought to the police station. After Mobley was given a Miranda warning and stated that

he understood his Miranda rights, he made a statement to police, in which he admitted

that the gun belonged to him.

      Mobley was charged with one count of felony possession of a firearm by a

prohibited person. Mobley moved to suppress the gun and his statement to police. The

district court concluded that the gun was admissible because it was discovered as the

result of a legal search and seizure. The district court determined that Mobley was seized

when the officers activated the squad car’s lights and sirens behind the SUV and that

Hamilton reasonably expanded the scope of the seizure. The court explained:

                     When approaching the SUV to issue the citation,
             Officer Hamilton described [Mobley’s] movements and body
             language as suspicious and testified that he thought [Mobley]
             could be reaching for a gun. [Mobley] appeared panicky and
             did not obey Officer Hamilton’s commands to keep his hands
             where they could be seen. [Mobley] became angry once he
             was asked to step outside the vehicle and acted as if he was
             preparing to flee. [Mobley] held a belt, and Officer Hamilton
             testified belts have been used to cause injury. The Court
             concludes that Officer Hamilton had a reasonable articulable


                                            4
              suspicion that [Mobley] presented a threat to officer safety.
              Therefore, Officer Hamilton reasonably expanded the scope
              of the seizure by removing [Mobley] from the vehicle,
              handcuffing him, and conducting the limited protective pat-
              down search for weapons.

The district court also determined that Mobley voluntarily waived his Miranda rights

and, therefore, his statement to police was admissible.

       The parties submitted the case to the district court for decision on stipulated facts.

The district court found Mobley guilty and sentenced him to an executed prison term.

This appeal followed.

                                     DECISION

       In reviewing a pretrial order denying a motion to suppress evidence, this court

independently reviews the facts to determine whether, as a matter of law, the district

court erred in its ruling. State v. Jackson, 742 N.W.2d 163, 168 (Minn. 2007); see also In

re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (stating that de novo review

applies to reasonable-suspicion determination). But we review the district court’s factual

findings for clear error and defer to its credibility determinations. State v. Klamar, 823

N.W.2d 687, 691 (Minn. App. 2012).

       Both the United States and Minnesota Constitutions prohibit unreasonable

searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless

search is unreasonable unless it falls under a recognized exception to the warrant

requirement. State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014).

              The Supreme Court of the United States recognized one such
              exception in Terry v. Ohio, in which it held that a law-
              enforcement officer may conduct a protective pat search of a


                                             5
               person’s outer clothing so long as the officer has a reasonable,
               articulable suspicion that the person whom the officer has
               lawfully detained may be armed and dangerous.

Id. (citing Terry v. Ohio, 392 U.S. 1, 26-27, 88 S. Ct. 1868, 1882-83 (1968)).

         The reasonable-suspicion standard is not high but requires something more than a

mere “inchoate and unparticularized suspicion or hunch.”          State v. Timberlake, 744

N.W.2d 390, 393 (Minn. 2008) (quotations omitted). An officer “must articulate a

particularized and objective basis” supporting the suspicion. Id. (quotation omitted).

Appellate courts “consider the totality of the circumstances when determining whether

reasonable, articulable suspicion exists.” State v. Flowers, 734 N.W.2d 239, 251 (Minn.

2007).     We “evaluate whether a reasonable, articulable suspicion exists from the

perspective of a trained police officer, who may make inferences and deductions that

might well elude an untrained person.”        Lemert, 843 N.W.2d at 230 (Minn. 2014)

(quotation omitted).

         Mobley argues that under In re M.D.B., Hamilton lacked a reasonable, articulable

suspicion that Mobley might be armed and dangerous. 601 N.W.2d 214 (Minn. App.

1999), review denied (Minn. Jan. 18, 2000). In M.D.B., an officer stopped the defendant,

a 16-year-old boy riding a bicycle, for running a stop sign and turning the wrong way

down a one-way street nearly hitting the squad car. Id. at 215. The officer testified that

he was concerned the defendant “might flee because he seemed nervous and was looking

side to side, possibly looking for an escape route,” and that the defendant was suspicious

because he did not have identification. Id. at 216. In holding that the officer lacked a

reasonable, articulable suspicion that the defendant might be armed and dangerous, this


                                              6
court noted that the defendant did not make any furtive gestures or uncooperative

remarks and did not assume a hostile or threatening attitude when stopped. Id. at 216-17.

Mobley asserts that in M.D.B., the defendant behaved in a hostile manner, flailing his

arms and yelling that he did not want the officer to beat him; but that conduct was not

part of the basis for the search as it occurred after the officer decided to conduct the

search. Id. at 215.

       In this case, in addition to appearing nervous, as the officers approached the SUV,

Mobley reached under the seat in a manner that suggested to Hamilton that he was

reaching for a gun and ignored Hamilton’s instructions to put his hands on his lap, stop

moving around, and open the window. When Mobley exited the SUV, he appeared

angry, failed to comply with Hamilton’s instruction to put his hands on his chest, and was

holding a belt in one hand, which Hamilton knew could be used as a weapon. Mobley’s

behavior during the stop, including his failure to follow Hamilton’s instructions,

suggested to Hamilton that Mobley was preparing to fight or flee.

       When the totality of the circumstances is considered, Mobley’s conduct was

sufficient to support a reasonable, articulable suspicion that he might be armed and

dangerous, and, therefore, the pat search was legal. See State v. Richmond, 602 N.W.2d

647, 650-51 (Minn. App. 1999) (concluding that a pat search for weapons was justified

when defendant made a “furtive movement” by reaching toward car’s passenger

compartment; was nervous, fidgety, and unable or unwilling to answer officer’s

questions; began reaching all over his body, jacket, and coat pockets when asked for

driver’s license; and appeared to be trying to decide whether to run after being removed


                                            7
from car), review denied (Minn. Jan. 18, 2000); see also State v. Dickerson, 481 N.W.2d

840, 843 (Minn. 1992) (stating that evasive conduct is relevant to determining whether

weapons search is justified); State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636

(1971) (stating that a suspect’s hostile or threatening attitude is relevant to determining

whether weapons search is justified). The district court did not err in denying Mobley’s

motion to suppress the gun.

       Because the pat search was legal, we do not reach the issue of whether Mobley’s

statement to police should have been suppressed as the fruit of the poisonous tree.

       Affirmed.




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