This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Justin Dean Olson,
Filed June 19, 2001
Hennepin County District Court
File No. K00065387
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
Leonardo Castro, Hennepin County Public Defender, Renee Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)
Considered and decided by Willis, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant state challenges the district court’s suppression of a handgun found during a police search of respondent’s van. Because we conclude that the police had probable cause to believe that the van contained evidence of the crime of violating a restraining order, we reverse and remand for further proceedings.
Late in the evening of July 8, 2000, Officer Aaron Albright was dispatched to the Brooklyn Park home of the Carters. According to the dispatch report, Mr. Carter believed that a van parked near his home belonged to Justin Dean Olson, who had been stalking his daughter for several years. The report also stated that Olson had broken into the Carters’ home on three separate occasions. When Albright arrived at the scene, he observed a van parked two houses away from, and on the same side of the street as, the Carters’ home. Albright parked behind the van and turned on his flashing red lights and spotlight. As he began to get out of his car, he observed the brake lights on the van flash. He testified that this led him to believe that there was someone in the van. When he looked in the driver’s side window, he did not observe anyone in the front of the van, but he could not see behind the rear bench seat. As he attempted to see into the back of the van, he noticed two photographs of a woman attached to the dashboard. Mr. Carter, who had joined Albright at the van, identified the woman as his daughter. He told Albright that Olson had been stalking his daughter for nearly ten years and that she had obtained a restraining order against Olson. He also told Albright that he recognized the van as Olson’s because on a prior occasion Olson had come to the Carters’ church in that van looking for their daughter. At about that time, Sergeant Jeff Ankerfelt arrived at the scene.
While Albright spoke with the Carters outside their home, Ankerfelt saw Olson emerge on foot from behind a tree adjacent to a house on the side of the street opposite where the van was parked. In response to Ankerfelt’s questions, Olson stated that he had been at a gas station two blocks away using a pay phone, that the van was having engine trouble, and that he had parked near the Carters’ home rather than at the gas station because he felt the van would be safer there.
Ankerfelt testified that he asked Olson if he would allow the officers to search the van and that Olson gave them permission to do so. Olson testified that he did not consent to a search of the van. Ankerfelt led Olson to his squad car, pat-searched him, removed a set of keys with a keyless-entry remote control from his pockets, handcuffed him, and placed him in the back seat of the squad car. At about that time, the Carters showed Albright a copy of the restraining order. Ankerfelt then handed the remote control to Albright, who pushed the “unlock” button and observed the van’s brake lights flash. Albright testified that this led him to believe that Olson had been observing him from across the street when he initially approached the van and had locked the van using the remote control.
Ankerfelt informed Albright that Olson had consented to a search of the van. Between the front seats, the officers found an open leather bag, in which they saw approximately five rounds of handgun ammunition. In the center console they found a small bag of marijuana. In addition to the pictures on the dashboard, they found a picture of a man standing next to the Carters’ daughter, which had been altered so that the man’s face was replaced with Olson’s. As they continued their search, the officers found a Smith & Wesson .44 Special revolver and a box of .44 ammunition behind the driver’s seat. They removed the gun from the van. After the officers completed their search, Ankerfelt asked Olson to sign a form consenting to the search. Olson asked if he was under arrest. When Ankerfelt told Olson that he would be arrested for stalking, Olson refused to sign the consent form. Ankerfelt then arrested Olson.
The van was towed to the Brooklyn Park police station, where the police inventoried its contents. These included: several photographs and one hand-drawn picture of the Carters’ daughter, five Smith & Wesson .44 bullets in a small leather bag, twenty-five Smith & Wesson .44 bullets in an ammunition box, a plastic gun case for a Smith & Wesson .44 Special, and a Master gun lock.
Olson was charged under Minn. Stat. § 624.713, subd. 1(b) (2000), as a felon in possession of a handgun. At an omnibus hearing, the district court granted Olson’s motion to suppress the handgun. After reviewing the state’s motion for reconsideration, the court filed an order suppressing the handgun. The state appeals.
In a pretrial appeal, a reviewing court will reverse the suppression of evidence only if the state demonstrates clearly and unequivocally
both that the trial court’s order will have a “critical impact” on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted). The parties agree that the critical impact requirement is satisfied. The issue, then, is whether the district court clearly and unequivocally erred in suppressing the handgun. The appellate court may independently review the facts to determine, as a matter of law, whether the district court erred in suppressing evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Both the United States and Minnesota Constitutions require that searches and seizures be reasonable. 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.” State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quotation and citation omitted). Under the so-called “automobile exception,” the police may conduct a warrantless search of a vehicle whenever they have probable cause to believe that a crime has been committed and that there is evidence of the crime in the vehicle. State v. Charley, 278 N.W.2d 517, 518 (Minn. 1979).
The state argues that the police had probable cause to search the van for evidence of the crimes of (1) violating a restraining order and (2) stalking. To establish probable cause to search, the police must show that they “have a reasonable belief that incriminating evidence is in a certain location.” In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (citation omitted).
Based on our independent review of the facts, we conclude that the police had probable cause to believe that the van contained evidence of the crime of violating a restraining order. The restraining order prohibited:
a. Any repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of [the Carters’ daughter].
b. Any contact with [the Carters’ daughter] in person, by telephone, or by other means or persons.
The officers were shown the restraining order, which was still in effect. They were informed that Olson had been stalking the Carters’ daughter for nearly ten years and that on a prior occasion he had been at the Carters’ church in that van looking for their daughter. As evidence of Olson’s intent to violate the restraining order, the officers observed the van only two houses away from, and on the same side of the street as, the Carters’ home and knew from Olson that he had parked it there. They also saw pictures of the Carters’ daughter on the dashboard of the van. Under these circumstances, the police had probable cause to believe that Olson was there with the intent to “adversely affect the safety, security, or privacy” of the Carters’ daughter. Because the police had probable cause to believe that Olson had violated the restraining order and had already seen evidence of that crime in the van--the two photographs--they also had probable cause to believe that the van contained other incriminating evidence. Because the police had probable cause to search the van, the district court clearly and unequivocally erred in suppressing the handgun. We therefore reverse and remand for further proceedings.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state also argues that the search of the van was justified under another exception, which allows a warrantless search of a vehicle when the police have probable cause to believe that the vehicle was used as an instrumentality of a crime. See, e.g., State v. Thiel, 299 Minn. 179, 182-83, 217 N.W.2d 499, 501-02 (1974). But because the state did not raise this issue before the district court, we do not consider it on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate courts will generally not consider matters not argued and considered in court below).
 Because we determine that the officers had probable cause to believe that Olson had violated the restraining order, we need not reach the issue of whether they had probable cause to search the van for evidence of the crime of stalking.