This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1532

State of Minnesota,
Appellant,

vs.

Aaron John Beachler,
Respondent.

Filed January 31, 2000
Reversed
Willis, Judge

Washington County District Court
File No. KX990144

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Doug Johnson, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for appellant)

Christine Funk, 106 South Main Street, P.O. Box 18, Stillwater, MN 55082 (for respondent)

Considered and decided by Anderson, Presiding Judge, Short, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant State of Minnesota challenges an order suppressing evidence found in respondent Aaron John Beachlerís vehicle. The state argues that the evidence was seized lawfully because one item was in plain view and the other was discovered subject to a search incident to arrest, or alternatively, pursuant to the automobile exception to the search-warrant requirement. We reverse.

FACTS

At approximately 12:40 a.m. on January 10, 1999, the manager of a Holiday gas station in Forest Lake reported that one of his employees was "doing drugs" in a gray vehicle on the south side of the gas-station parking lot. Forest Lake Police Officer Tony Athen and Washington County Sheriffís Deputy Soren Mahowald responded to the scene in their respective squad cars. Upon his arrival, Deputy Mahowald turned his squad car toward the suspect vehicle and his headlights illuminated the vehicle and its three occupants. Deputy Mahowald saw a male in the driverís seat make furtive movements toward the floor and under the dashboard.

Over his public-address system, Deputy Mahowald ordered the occupants of the vehicle to put their hands up. He approached the driverís side of the vehicle and observed a razor blade covered with white powder on the front seat. Deputy Mahowald looked at the driver and said, "Whereís the dope?" The driver responded, "Itís under the seat." The driver was subsequently identified as respondent Aaron Beachler.

Deputy Mahowald ordered Beachler to turn off the vehicleís motor. Deputy Mahowald and Officer Athen then ordered the occupants out of the vehicle, handcuffed them, and put them in the squad cars. One of the occupants was later identified as A.B., a juvenile. Officer Athen then returned to Beachlerís vehicle and looked under the front seat, where he found a cigarette box containing a substance that later tests showed was methamphetamine. Beachler was charged with fifth-degree controlled substance crime, in violation of Minn. Stat. ß 152.025, subds. 2(1), 3 (1998), and Minn. Stat. ß 609.05 (1998); and soliciting a juvenile to commit a crime, in violation of Minn. Stat. ß 609.494 (1998), and Minn. Stat. ß 609.05 (1998).

At a contested omnibus hearing, Beachler alleged that his statement should be suppressed because it was obtained in violation of his Miranda rights. The parties agreed to submit the issue on written briefs and the police reports in lieu of testimony. The state briefed only the issue of suppression of Beachlerís statement; Beachler argued in his brief that not only his statement but also the drugs should be suppressed. The district court concluded that Beachler was interrogated in violation of his Miranda rights and granted Beachlerís motion to suppress the methamphetamine and the razor blade covered with white powder.[1] The state appeals.[2]

D E C I S I O N

In a pretrial appeal, this court will reverse the suppression of evidence by the district court "only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial." State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted). Critical impact is shown in cases where the stateís case is destroyed without the suppressed evidence or where the absence of the suppressed evidence significantly reduces the likelihood of a successful prosecution. Id. at 551. Because the district courtís ruling on the admissibility of the drugs destroyed the stateís case, the ruling had a critical impact. Therefore, we will reverse the district courtís ruling if the state demonstrates clearly and unequivocally that the district court erred in its judgment.

I. Suppression of the Methamphetamine

The district court suppressed the methamphetamine found under the front seat as the fruit of a Miranda violation. The state argues that even if Deputy Mahowald obtained Beachlerís statement in violation of his Miranda rights, the officers had independent bases to search the vehicle pursuant to the automobile exception to the search-warrant requirement or, alternatively, as a search incident to Beachlerís arrest. Even if Deputy Mahowald violated Beachlerís Miranda rights and Beachlerís statement is thereby properly suppressed, an issue we need not decide, the independent-source doctrine permits the admission of evidence obtained during an unlawful search if the police could have obtained the evidence "on the basis of information obtained independent of their illegal activity." State v. Richards, 552 N.W.2d 197, 203 n.2 (Minn. 1996).

The automobile exception to the search-warrant requirement allows an officer to search a vehicle if the officer has probable cause to believe the search will produce evidence of a crime. United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 2172 (1982); State v. Search, 472 N.W.2d 850, 852 (Minn. 1991). The police here had probable cause to believe that the vehicle contained evidence of a crime. They received a tip from the gas-station manager that his employee was involved in drug activity in the vehicle. Under the "first-time citizen-informer" rule, the credibility of a person "who is not involved in the criminal underworld and who has no track record as a police informant" is presumed. State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978). And the tip was corroborated when Deputy Mahowald observed Beachlerís furtive movements and the razor blade covered with white powder on the front seat. See State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (stating that corroboration of even minor details can lend credence to the informant's information when the police know the identity of the informant). Therefore, even if the police obtained Beachlerís statement in violation of his Miranda rights, the officers had an independent basis for searching the vehicle under the automobile exception to the search-warrant requirement.

The state argues alternatively that the search of Beachlerís vehicle was constitutionally permissible as a search incident to arrest. When a police officer has made a lawful custodial arrest of the driver of a vehicle, the officer may search the driverís person and the interior passenger compartment of the vehicle, including any containers found therein. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); State v. White, 489 N.W.2d 792, 794 (Minn. 1992). "The test of probable cause to arrest is whether the objective facts are such that under the circumstances, Ďa person of ordinary care and prudence [would] entertain an honest and strong suspicioní that a crime has been committed." State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)). Here, the police had probable cause to arrest Beachler based on the tip, his furtive movements, and the razor blade covered with white powder. Conducting a search incident to that arrest, Officer Athen located a cigarette box under the front seat. The cigarette box contained a white powder that later tests showed was methamphetamine. Again, even if the police obtained Beachlerís statement in violation of his Miranda rights, the officers had an independent basis for searching his vehicle as a search incident to arrest.

Because the police officers had an independent basis for searching the vehicle, under either the automobile exception to the search-warrant requirement or as a search incident to Beachlerís arrest, the methamphetamine should not have been suppressed.

II. Suppression of the Razor Blade

The state argues that the razor blade was lawfully seized under the plain-view doctrine. Both the United States and Minnesota Constitutions require that searches and seizures be reasonable. U.S. Const., amend. IV; Minn. Const. art. I, ß 10. Warrantless searches are unreasonable unless an exception to the search-warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). Police officers can seize items in "plain view" without a warrant, provided they have probable cause to believe that the item is contraband, stolen property, or evidence of crime. State v. Zanter, 535 N.W.2d 624, 632 (Minn. 1995).

For the plain-view doctrine to apply, three conditions must be met: (1) the police must observe the item from a place where the police have a legal right to be; (2) the itemís incriminating character must be immediately apparent; and (3) the police must have a lawful right of access to that item. In re G.M., 560 N.W.2d 687, 693 (Minn. 1997); see Coolidge v. New Hampshire, 403 U.S. 443, 446, 91 S. Ct. 2022, 2038 (1971).

The record shows that Deputy Mahowald observed the razor blade, in plain view, from a lawful position--he was in the public area of a parking lot standing next to Beachlerís vehicle. The record also shows that the incriminating character of the razor blade was immediately apparent. Deputy Mahowald was responding to a tip that the occupants of the vehicle were "doing drugs," and the razor blade covered with white powder was consistent with drug paraphernalia. Finally, the police had a lawful right of access to the razor blade under either the automobile exception to the search-warrant requirement or as a search incident to Beachlerís arrest.

The razor blade was, therefore, constitutionally seized under the plain-view doctrine. Because Deputy Mahowald observed the razor blade before he asked Beachler any questions, the razor blade cannot be suppressed as the fruit of a Miranda violation.

III. New Arguments on Appeal

Beachler argues that the state improperly raises issues on appeal that were not considered by the district court. Beachler contends that because the state did not argue to the district court the doctrines of plain view, search incident to arrest, and the automobile exception to the search-warrant requirement, it has waived these arguments and cannot raise them on appeal.

The general rule is that issues not argued and considered in the district court are waived on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But the rule is not strictly applied to arguments not made to the district court at an omnibus hearing. See State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992) (remanding to district court for a reopened omnibus hearing at which state may present additional evidence and argument). This is particularly true when the parties submit simultaneous briefs and only upon receipt of the defenseís brief could the state know that the defense would raise an issue that was not a focus of the omnibus hearing. Id. Here, the parties agreed to submit simultaneous briefs on the issue of the admissibility of Beachlerís statements to the officers made before he received a Miranda warning. The record shows that the state filed its brief with the court and served it on Beachler on July 22, 1999, almost a month in advance of the August 20, 1999, briefing deadline. Beachler filed his brief on August 20, 1999. Nothing in the record suggests that the state was on notice when it submitted its brief that Beachler also would argue that the physical evidence should be suppressed. On these facts, the state has not waived its right to address on appeal issues relating to the suppression of physical evidence.

Because we conclude that the state has demonstrated clearly and unequivocally that the district court erred, we reverse suppression of the methamphetamine and the razor blade.

Reversed.

[1] The record before us does not indicate the results of any tests of the powder on the razor blade.

[2] The state does not challenge the suppression of Beachler's statement on appeal.