State v. Larson, No. A07-0146 (Minn. App. 11/18/2008), No. A07-0146.

CourtCourt of Appeals of Minnesota
Writing for the CourtLarkin
Docket NumberNo. A07-0146.
PartiesState of Minnesota, Respondent, v. Gregory Wayne Larson, Appellant.
Decision Date18 November 2008

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State of Minnesota, Respondent,
Gregory Wayne Larson, Appellant.
No. A07-0146.
Court of Appeals of Minnesota.
November 18, 2008.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

Appeal from District Court, Aitkin County, File No. K6-04-4.

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN; and

Jim Ratz, Aitkin County Attorney, Aitkin County Courthouse, Aitkin, MN (for respondent).

Craig E. Cascarano, Minneapolis, MN; and

Joel Fink (of counsel), St. Louis Park, MN (for appellant).

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Larkin, Judge.

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LARKIN, Judge.

Appellant challenges his conviction of first-degree controlled-substance crime (attempted manufacture) and the district court's denial of his motion to suppress evidence recovered during a search of appellant and his vehicle. Appellant argues that the search was unconstitutional. Because the search was proper under exceptions to the warrant requirement, we affirm.


On January 4, 2004, at approximately 1:15 a.m., Deputy John Novotny observed a vehicle that did not appear to have current registration tags. Deputy Novotny called dispatch and learned that the vehicle's registration was valid until April 2004. As Deputy Novotny called dispatch, the vehicle turned right toward a residence and pulled over outside of the residence. The driver, appellant Gregory Wayne Larson, exited the vehicle as Deputy Novotny pulled in behind it. The deputy did not turn on his overhead lights or siren. He approached the vehicle and spoke to appellant. He noticed that one of the passengers appeared to be Kimberly Kath. Deputy Novotny knew that there was an active warrant for Kath's arrest. Deputy Novotny informed appellant that he was talking to him because of appellant's registration tags, at which time appellant walked to the back of the vehicle and knocked some snow off of the bumper to reveal the current registration tags.

As Deputy Novotny and appellant spoke, Leone Thoms exited the back seat of appellant's vehicle and approached Deputy Novotny. Then, the front seat passenger and

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the person Deputy Novotny believed to be Kath exited the vehicle and walked quickly toward the residence. Deputy Novotny pursued them and apprehended Kath at the front door of the residence. The front seat passenger, later identified as Elizabeth Towle, went into the residence. Deputy Novotny arrested Kath, placed her in the back of his squad car, ensured that the pass-through window between the front and back seat was closed, and locked the doors of his squad car.

Deputy Novotny then went to appellant's vehicle to search the vehicle incident to Kath's arrest. Thoms was standing between the squad car and the vehicle, and Deputy Novotny asked appellant to stand next to her. As Deputy Novotny opened the back passenger door, appellant approached the deputy and objected to the search. Deputy Novotny informed appellant that he had arrested Kath and that he was going to search the vehicle. Deputy Novotny looked under the seat where Kath had been seated and saw a yellow butane torch. Appellant again approached Deputy Novotny and protested the search. Deputy Novotny believed that appellant was trying to distract him. Deputy Novotny continued his search and noticed a plastic glass in the front passenger cup holder that contained a brown liquid. Deputy Novotny seized the glass and noted that the liquid smelled like an alcoholic beverage. Appellant again stood right next to Deputy Novotny and refused to follow the deputy's directions to stand away from him.

Throughout the vehicle search, Thoms repeatedly told Deputy Novotny that she needed to use the bathroom. Deputy Novotny decided to allow Thoms to use the bathroom inside the residence. The deputy determined that he, Thoms, and appellant would go inside together so Deputy Novotny could keep track of them.

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Within a minute of entering the residence, Deputy Drahota arrived and asked Deputy Novotny where Kath had gone because she was not in the squad car. Deputy Novotny exited the residence and discovered that Kath had escaped from his squad car. Deputy Novotny believed that someone must have assisted Kath in her escape. Deputy Novotny placed Thoms in the back of his squad car. Deputy Novotny asked Deputy Drahota to place appellant in the back of his squad car for questioning regarding Kath's escape. Deputy Drahota walked appellant to his squad car and pat frisked appellant based on officer-safety concerns. During the pat frisk, Deputy Drahota felt a long, hard object in appellant's front shirt pocket. Appellant's pocket was open, and Deputy Drahota could see that the object was a glass pipe. Deputy Drahota seized the pipe and noticed that it contained a white residue. Deputy Novotny informed appellant that he was under arrest for possession of methamphetamine and returned to appellant's vehicle to search it. Deputy Novotny found evidence of methamphetamine production in appellant's vehicle.

Appellant was charged with one count of first-degree controlled-substance crime pursuant to Minn. Stat. § 152.021, subd. 2a(a) (2002 & Supp. 2003) and one count of fifth-degree controlled-substance crime pursuant to Minn. Stat. § 152.025, subd. 2(1) (2002), based on the evidence of methamphetamine possession and production found during the search of appellant and his vehicle.1 Appellant moved the district court to

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suppress this evidence at an omnibus hearing. At the hearing, appellant and the state agreed to submit the suppression issues to the court on a stipulated record.

After briefing by the parties, the district court issued an order denying appellant's motion to suppress based on the conclusions that law-enforcement officers (1) did not impermissibly expand the scope of appellant's investigative seizure, (2) were justified in conducting a limited pat frisk of appellant, and (3) permissibly searched appellant's vehicle without a warrant pursuant to the search-incident-to-arrest exception to the warrant requirement. Appellant challenges each of these conclusions on appeal.


"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court's findings of fact under a clearly erroneous standard, but legal determinations are reviewed de novo. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).

Appellant's Investigative Seizure

We first address whether the district court erred in concluding that the scope of appellant's seizure was not impermissibly expanded. Both the United States and Minnesota Constitutions prohibit unreasonable search and seizure by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer may initiate a limited investigative stop if the officer has reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968); State v. Waddell, 655 N.W.2d

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803, 809 (Minn. 2003); see also State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (noting that an investigative stop is lawful if the state can show that the officer had a "particularized and objective basis" for suspecting criminal activity). Whether police have reasonable suspicion to conduct an investigatory stop depends on the totality of the circumstances, and a stop is not justified if it is "the product of mere whim, caprice, or idle curiosity." In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn. App. 2005) (quotation omitted), review denied (Minn. June 28, 2005).

Appellant challenged the basis for his initial seizure for the first time at oral argument on appeal. Even though appellant did not raise this claim below, this court will address appellant's argument in the interest of thorough review. "[I]t is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be diluted by counsel's oversights, lack of research, failure to specify issues or to cite relevant authorities." State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (quotation omitted). Further, it is possible for us to evaluate this argument on facts already present in the record. See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 523 (Minn. 2007) (examining a witness credibility claim under a sufficiency-of-the-evidence standard as properly before the court on review, even though appellant did not assign any error to the district court's consideration of the issue below, in part because it was possible to consider the argument on facts already presented).

Minnesota cases "do not require much of a showing in order to...

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