This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-269

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Wesley Bierbaum,

Appellant.

 

 

Filed January 20, 2004

Affirmed

Anderson, Judge

 

Dakota County District Court

File No. K202325

 

John Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN† 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN† 55033 (for respondent)

 

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.

 

U N P U B L I S H E D† O P I N I O N

 

††††††††††† G. BARRY ANDERSON, Judge

 

††††††††††† John Bierbaum was lawfully stopped by Eagan police officers for a routine traffic violation.† During the stop, the officers became aware that Bierbaumís passenger was the subject of an arrest warrant.† The officers arrested the passenger and searched the car incident to the arrest, discovering drug paraphernalia in the vehicle.† The officers also pat-searched Bierbaum after Bierbaum consented to the pat-search and found drug paraphernalia and marijuana.† Bierbaum moved to suppress all of the evidence.† The district court denied this motion and convicted Bierbaum.† We affirm.

FACTS

 

On December 5, 2001, Eagan Police Officer Andrew Speakman lawfully stopped appellant, John Bierbaum, on a ramp leading to I-35E for a traffic violation.† Speakman approached the vehicle and asked for and received appellantís driverís license and proof of insurance.† While doing so, Speakman observed that the passenger in the car, Richard Evenson, was not wearing a seatbelt.† As a result, Speakman requested and received Evensonís name.† Speakman returned to his car, ran a check on the identities of appellant and Evenson, and was informed that Washington County had an active warrant for Evensonís arrest.† The warrant was for a misdemeanor.

After the warrant was confirmed, Officer John Collins arrived to back up Speakman.† Evenson was placed under arrest, handcuffed, and placed in the back of a squad car.† The officers decided to conduct a search of appellantís car incident to the arrest of Evenson.† Collins removed appellant from the car and placed appellant in the back of the other squad car to protect appellant from oncoming traffic and to ensure that appellant could not harm either officer.

Before placing appellant in the car, Collins requested and received appellantís consent for a pat-search of appellant.† Collins had no evidence indicating that appellant was armed or dangerous when this pat-search was conducted.† During the pat-search, Collins discovered a small, cylindrical object that appellant described as a crack pipe.† The pipe had methamphetamine residue in it.

Appellant was placed in the back of the squad car, and the two officers conducted a search of appellantís vehicle.† In the driverís side door the officers discovered a marijuana pipe with marijuana residue on it.† Appellant and Evenson were searched more thoroughly, and marijuana was found on both of them.

In the pre-trial stage, appellant contested the search of the vehicle and the pat-search of his person prior to placing him in the back seat of the squad car.† At the suppression hearing, appellant argued that the search was not lawful as a search incident to arrest.† Appellant never argued to the district court that his consent was invalid.† Appellantís argument at the district court was based on the Fourth Amendment to United States Constitution and Article 1, Section 10 of the Minnesota Constitution.† The district court admitted the evidence.

The case was tried on stipulated facts, and the district court found appellant guilty.† The district court stayed imposition of the sentence pending the outcome of this appeal.

 

D E C I S I O N

††††††††††† Both the U.S. and Minnesota constitutions forbid unreasonable searches and seizures.† U.S. Const. amend. IV; Minn. Const. art. I, ß 10.† A search is not unreasonable if a law-enforcement officer requests permission to search and the individual grants the officer permission.† State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).† Here, appellant consented to the pat-search of his person.† Appellant did not raise the validity of his consent below and we will therefore not consider his challenge to it here.† Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).† Because appellant consented to the pat-search of his person, the pat-search was a lawful search.

††††††††††† The fruits of this pat-search, what appellant described to Collins as a crack pipe, provided probable cause for Collins to arrest appellant.† See State v. Buchwald, 196 N.W.2d 445, 450, 293 Minn. 74, 81-81 (1972) (concluding that officerís observation of hand-rolled cigarettes, without knowledge of their contents coupled with knowledge of drug use by the defendantís associates, provided probable cause to arrest the owner of the cigarettes).† Because Collins had probable cause to arrest appellant, Collins was then authorized to conduct a search of appellantís car incident to his arrest.† New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981) (stating that law-enforcement officers may search the entire passenger compartment incident to the arrest of an occupant of the vehicle); State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992) (stating that a search incident to arrest may be conducted prior to the actual arrest provided that the fruits of the search are not used to justify the initial arrest).† Therefore, because the officers lawfully pat-searched appellant and had probable cause to arrest, the search of appellantís vehicle was not an unreasonable search.

††††††††††† Affirmed.