This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Thomas Francis Halling,



Filed June 13, 2000


Toussaint, Chief Judge


Hennepin County District Court

File No. 98113521


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

Amy Klobuchar, Hennepin Attorney, LInda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

                  On appeal from a conviction for felon in possession of a pistol under Minn. Stat § 624.713 subd. 1(b) (1998), appellant Thomas Francis Halling challenges a pretrial order denying his motion to suppress the weapon seized from his person and his statement to the officer regarding his possession of the weapon.  Halling argues that the officer’s frisk for weapons was not justified by the minor traffic violations or the officer’s observation of an open can of beer in the car.  Halling also argues that (1) the officer’s routine use of pat searches of drivers removed from their cars is illegal; and (2) the search cannot be deemed a search incident to arrest because he was not under arrest, and that if it is, he should have been given a Miranda warning before being subjected to interrogation.  We affirm.


            On November 10, 1998, police officers Charles Greaves and Greg Knoll were on duty.  They observed a car exceeding the speed limit and followed it.  The car made a right hand turn without signaling and further increased its speed.  The officers stopped the car and approached it, Knoll on the driver’s side and Greaves on the passenger’s side.  As Greaves approached the car he noticed an open can of beer in the middle console of the car.  He informed Knoll, who asked the driver, appellant Thomas Frances Halling, to exit the car.  Knoll walked Halling to the squad car to give him a field sobriety test.  Neither officer informed Halling of his Miranda rights at this time.

            Greaves did a pat search of Halling.  At some point, Greaves asked Halling if he had a weapon or “anything illegal on him.”  Greaves had been stuck by a needle during a previous pat search, which caused him considerable anxiety, so he now regularly asked about illegal items to protect himself.  Halling replied that he had a gun in his pants waistband.  Greaves retrieved the gun and completed the search.  The officers arrested Halling for being a felon in possession of a pistol. 

During his Rasmussen hearing on July 7, 1999, Halling admitted to having a felony record and being in possession of a gun, but he moved to suppress the gun and his statement.  The trial court found “[t]hat as Greaves was preparing to do a pat search on the defendant prior to the field sobriety tests [he] asked if he had a weapon or anything illegal on him.”  Because of this finding, the trial court determined Halling was not in custody for purposes of Miranda and the officers had reasonable suspicion to conduct the search after being told about the gun.  The trial court refused to suppress the gun and the statement made by Halling to the officers concerning the gun.  In a bench trial on the paper record with no further testimony, the trial court found Halling guilty of being a felon in possession of a pistol.  Halling appeals his conviction.


When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the trial court erred in refusing to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

The Fourth Amendment provides that “the right of people to be secure in their persons * * * against unreasonable searches and seizures, shall not be violated.”  U.S. Const. amend. IV.  Warrantless searches are per se unreasonable unless an exception applies.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  The exception for a search incident to arrest allows police officers with objective probable cause to arrest an individual to search the individual and the area within his or her control.  United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471 (1973);  State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  A search incident to arrest must occur contemporaneously with the arrest, but the search may precede the arrest “if probable cause to arrest exists at the time of the search and the formal arrest ‘follow[s] quickly on the heels of the challenged search.’”  Bauman, 586 N.W.2d at 420 (quoting State v. White, 489 N.W.2d 792, 795 (Minn. 1992)).

            In this case, the police officers saw an open can of beer in the console of Halling’s car.  This violation provided the officers with probable cause to arrest Halling and search him incident to that arrest.  See Minn. Stat. § 169.122, subds. 3, 4 (1998) (prohibiting driving a motor vehicle with an open bottle in the passenger compartment); see State v. Slifka, 256 N.W.2d 90, 91 (Minn. 1977) (“officers arguably had probable cause to arrest and search the driver for both possession of marijuana and for violation of the open-bottle law”); see also White, 489 N.W.2d at 794 (finding search of defendant incident to arrest for driving without license and giving false name to officer was not rendered unlawful because officer ultimately arrested defendant for possession of controlled substance discovered during search).  Because the officers had probable cause to arrest Halling and arrest immediately followed the search, the trial court did not err in refusing to suppress the gun found in Halling’s possession and Halling’s statement about possessing the gun.

            Viewing an open can of beer in the car Halling was driving gave the officer probable cause to arrest Halling and to conduct a search incident to arrest to determine whether Halling had other contraband in his possession.  Because the officer had probable cause to arrest Halling, the trial court did not err in refusing to suppress weapon evidence found during the search immediately precedent to arrest.


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