This opinion will be unpublished and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

C3-01-332

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lawrence Michael Foote,

Appellant.

 

 

Filed October 30, 2001

Affirmed

Klaphake, Judge

 

Ramsey County District Court

File No. K7002442

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Ste. 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge,and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Lawrence Foote was convicted of third-degree controlled substance offense in violation of Minn. Stat. § 152.023, subd. 2(1) (2000).  Foote argues that the cocaine seized should have been suppressed because he withdrew his consent to be searched.  Because Foote failed to raise the argument before the district court, we affirm.

D E C I S I O N

            Foote’s third-degree controlled substance conviction stems from a lawful vehicular stop on July 24, 2000.  After the driver of the vehicle informed the police officers that Foote, the passenger, possessed illegal drugs, the officers requested to search Foote and the vehicle.  It is not disputed that Foote consented to the search.  On appeal, Foote argues that he withdrew his consent after the search began by repeatedly moving his hands from the top of his head to his waistband.

            The state argues that Foote waived the search and seizure issue because the issue was not raised before the district court.  “Generally, this court will not decide an issue that was not raised in the trial court.”  State v. Pinkerton, 628 N.W.2d 159, 161 (Minn. App. 2001) (quoting Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)), review denied (Minn. July 24, 2001).  But we may deviate from this rule when (1) the interests of justice require consideration of an issue and (2) consideration will not unfairly surprise a party to the appeal.  State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999), review denied (Minn. Oct. 21, 1999).

            The only testimony in the record relating to the alleged withdrawal of consent was presented by the state.  The officers testified that Foote was reluctant to allow the search of his waist area.  The testimony was given to show that one of the officers was prompted to shake Foote’s shorts, which resulted in two bags of crack cocaine falling out of his shorts.  The officers testified that they repeatedly instructed Foote to put his hands on his head during the search and that Foote continued to move his hands from his head to his waistband.  Foote never verbally requested that the officers halt the search.

            On cross-examination, Foote did not question the officers about Foote’s hand movements.  Moreover, Foote did not testify or argue that his hand movements were an attempt to withdraw his consent to the search.  Allowing Foote to bring this argument on appeal would result in unfair prejudice to the state.  Because this issue was not before the district court, it is not properly before this court.  See Pinkerton, 628 N.W.2d at 161.

            In a supplemental pro se brief, Foote makes additional arguments.  He appears to contend that he should be granted a new trial because (1) the police offers were not credible witnesses; (2) the district court denied his request to substitute counsel; and (3) he was unfairly treated by the judge due to his prior convictions.  This court has fully considered the issues raised in Foote’s pro se brief and found them to be without merit.

            Affirmed.