This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Donald Edwin Connors,
Affirmed; motion granted
St. Louis County District Court
File No. K900101082
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Huspeni, Judge.
On appeal from his conviction of and sentence for a second-degree controlled-substance offense, appellant argues that the police did not have a reasonable basis to frisk him or probable cause to seize drugs from his pocket, and that the trial court erred in refusing to depart dispositionally from the presumptive sentence. Because we conclude that the officer had probable cause to arrest appellant for obstructing legal process and the search of his pockets was a search incident to a valid arrest, and because imposition of the presumptive sentence was not an abuse of discretion, we affirm. We also affirm the trial court’s decision to impose the presumptive sentence under the sentencing guidelines, and we grant respondent’s motion to strike appellant’s pro se supplemental brief as material outside the record on appeal.
On the evening of July 9, 2000, police stopped a car for driving the wrong way down an alley. The officer detected the odor of alcohol coming from the car, told the driver and passengers to exit, and began to search for open containers. In the back seat, the officer found a bag of marijuana, which no one claimed. The officer testified that he felt nervous because of the passengers’ behavior and called for assistance. While the officer arrested the driver for driving with a revoked license, another officer watched the passengers.
Appellant Donald Edwin Connors, one of the passengers, appeared “fidgety” and “nervous” to the officer watching him. Appellant started to stand behind another passenger, obstructing the officer’s view of him, and put his hands behind his back. The officer told appellant to remain still and to keep his hands in plain view. Appellant then began moving to the open car door and reaching his hand toward the seat. The officer told appellant to stand against the wall and keep his hands in sight or he would be arrested and maced. The officer then decided to handcuff appellant, but appellant insisted he would only permit another officer to handcuff him.
Once appellant was handcuffed, the officer searched him for weapons. Appellant stated that he did not have any weapons and began to resist the search. When the officer reached for one of appellant’s pockets, appellant turned away stating that he only had a pack of cigarettes there. The officer patted the pocket and felt a round, soft object. The officer testified that he knew it was not a weapon but believed that it was drugs. The officer reached in appellant’s pocket and retrieved a baggie containing 22.2 grams of methamphetamine.
Appellant was charged with second-degree controlled-substance crime. He claimed an illegal search and moved to suppress the drugs. The trial court denied the motion, finding that (1) the pat-down was reasonable; (2) the plain-feel seizure was permissible; and (3) alternatively, the search was valid as incident to arrest. Appellant was found guilty after a Lothenbach trial, and the court denied his motion for a dispositional departure, imposing the presumptive sentence. This appeal followed.
When reviewing pretrial orders on suppression motions, an appellate court may review the facts independently 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) (citation omitted).
The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures of “persons, houses, papers and effects.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are per se unreasonable, subject only to a few narrow exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993). The search-incident-to-arrest exception permits an officer to search the arrested person and the area within that person’s control. United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471 (1973).
The probable-cause-to-arrest test requires the court to consider the facts objectively under the circumstances to decide “if a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” State v. Bauman, 586 N.W.2d 416, 421 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999) (citation omitted). Police who have probable cause to arrest a suspect may search the suspect even if the search occurs before the arrest. Id. at 420. And a search is reasonable when probable cause to arrest exists at the time of the search, even though there is no subsequent arrest. Id. at 421.
A person is guilty of obstructing legal process who intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.” Minn. Stat. § 609.50, subd. 1(2) (2000). Even resistance to an unlawful pat-down search may constitute obstructing legal process and remove the taint of an illegal search. State v. Olson, 634 N.W.2d 224, 230 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
Appellant argues that the police had no reasonable suspicion that he was engaged in criminal activity, and thus the officer should not have pat-searched him for weapons. Appellant also contends that the officer exceeded the scope of the search after realizing that the lump in appellant’s pocket was not a weapon and that the officer lacked probable cause to arrest him for obstructing legal process. Thus, he argues, the search could not be a valid search incident to arrest. We see no merit in appellant’s arguments.
The record shows that appellant was validly arrested and searched. Appellant first tried to hide from the officer’s view and put his hands behind his back. He then refused to comply with the officer’s order to keep still by reaching toward the open car door. Appellant also refused to be handcuffed by one officer, resisted a weapons frisk, and lied about the contents of his pocket.
Appellant also argues that his mere presence in a stopped car does not establish probable cause to search him. As support for this argument, appellant relies on State v. Slifka, 256 N.W.2d 90, 91 (Minn. 1977) (passenger had no open container, was put in squad car, did not obstruct arrest of driver, and officers had no probable cause to believe he possessed drugs found in car); State v. Eggersgluess, 483 N.W.2d 94, 97-98 (Minn. App. 1992) (passenger stopped in car where driver and others were violating open-container law but did not himself have an open container and was not acting furtive or moving to where weapon could be concealed); and State v. Albino, 384 N.W.2d 525, 527 (Minn. App. 1986) (passenger merely present in car found with drugs, did not resist arrest, or obstruct arrest of driver). In those cases, however, the passengers did not interfere with the officers. Here, appellant’s actions constituted obstruction of legal process. The officer had probable cause to arrest appellant for that offense, and the search of appellant and subsequent seizure of methamphetamine from his pocket was permissible under the search-incident-to-arrest exception to the requirements of the Fourth Amendment. Appellant’s reliance on the cases he cites is misplaced.
In view of our determination that the arrest of appellant and the subsequent search of his person were valid, we do not address his arguments that the pat-search was improper or that the seizure of drugs was not permitted under the plain-feel exception to the Fourth Amendment.
Appellant next argues that the trial court abused its discretion in failing to dispositionally depart in sentencing. We disagree. While a court may depart if the case involves “substantial and compelling circumstances,” Minn. Sent. Guidelines II.D, even the existence of mitigating factors does not obligate a court to depart from the presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Only a rare case would warrant reversal of a refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant concedes that the sentencing guidelines are presumed to be appropriate for every case and does not cite any appellate case reversing a trial court’s imposition of the presumptive sentence. He argues, however, that his problems are entirely due to drug abuse and that he should be on probation and in treatment instead of prison. He points to his success in staying sober during the four months before sentencing, his showing of remorse, and the harshness of a 68-month sentence for possessing less than one ounce of methamphetamine.
Appellant was convicted of a severity-level-seven offense; he had a criminal history score of two. Under the guidelines, the presumptive sentence was the one imposed by the trial court. The trial court considered appellant’s recent successful treatment but noted that appellant failed twice before to complete treatment successfully. Moreover, appellant does not argue that any of the enumerated mitigating factors under the sentencing guidelines applies here. This is not that rare case described in Kindem that would warrant reversal of a trial court’s decision. We see no abuse of discretion in sentencing.
Finally, respondent has moved to strike appellant’s pro se supplemental brief on the basis that it contains material outside the record on appeal. In that brief, appellant, who did not testify in the trial court, recites the facts of his arrest as he sees them. Appellant raises no specific issue, but apparently urges that the police actions violated his Fourth Amendment rights. We cannot base our decision on matters outside the record, and any such material must be stricken. State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001); see also Minn. R. Crim. P. 28.02, subd. 8 (stating that the record on appeal consists of “the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any”). While granting respondent’s motion to strike, we nonetheless observe that there is no merit to any matter raised in appellant’s pro se brief, and we reiterate that appellant’s arrest and search incident to that arrest were valid.
Affirmed; motion granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Because the officers found marijuana in a car in which appellant was a passenger, and because appellant acted so nervously and suspiciously, the officer may have alternatively had probable cause to arrest appellant for possession of the marijuana. See State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610-11 (1975) (stating that constructive possession may exist if a strong probability, inferable from all the evidence, supports a conclusion that a suspect exercises dominion and control over a substance).