This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Hajj Abdul Shabazz,



Filed April 20, 2004

Affirmed in part, reversed in part, and remanded

Willis, Judge


Hennepin County District Court

File No. 02071643


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


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of possession of a firearm by a prohibited person, arguing that the district court erred by admitting into evidence a gun and a magazine for a gun found during a search of appellant’s motel room.  Appellant also challenges the district court’s imposition of the mandatory minimum sentence because it did not “think [it] had a choice.”  In addition, appellant has filed a pro se supplemental brief.  Because (1) the record shows that the weapon and the magazine were discovered pursuant to the search-incident-to-arrest and plain-view exceptions to the warrant requirement and (2) appellant’s pro se claim does not warrant relief, we affirm in part.  But because the district court had the discretion to sentence Shabazz without regard to the mandatory minimum sentence if it found substantial and compelling reasons to do so, we reverse in part and remand for resentencing.


On September 4, 2002, Veronica Wesson called the Brooklyn Center Police Department to report an assault; she stated that her ex-boyfriend, appellant Hajj Shabazz, had threatened her with a gun.  Wesson stated that Shabazz was currently at a local motel in a room that she had rented for him the previous evening. 

            Four officers investigated.  One officer, Thomas Boie, stood outside the window of Shabazz’s room while the other three officers went to the room and knocked on the door.  After five minutes, Shabazz opened the door, wearing only a blanket.  Behind Shabazz, the officers saw a female in bed, putting on her clothing.  An officer handcuffed Shabazz and took him back into the room.  Another officer took the female outside of the room; she initially told the officer that she was 20 years old but then acknowledged that she was only 14 years old. 

            Officer Boie was then called inside by the other officers, and he conducted a search of the room.  After searching the bathroom, Officer Boie approached a chair that had some clothing on it and “started looking around.”  The chair was approximately five feet from Shabazz, who was then sitting on a chair near the room’s entrance.  Officer Boie looked next to the side of the bed closer to the exterior wall and saw a pair of red tennis shoes on the floor; in one of the shoes he saw what he believed to be the butt of a handgun.  The shoes were approximately 15 feet from Shabazz.  Officer Boie picked up the gun and discovered that it was an unloaded .38 caliber semi-automatic handgun.  He then searched the clothing on the chair and found a magazine containing .38 caliber rounds. 

            Officer Boie then searched the rest of the room, looking between the mattress and the box spring, where he found a vibrator and a roll of aluminum foil.  On the nightstand next to the bed, he found a pipe and a camera.  And in the garbage can, he found another pipe.

            Shabazz was charged with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (2002), and possession of a firearm by a prohibited person, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Shabazz moved to suppress all of the items seized during the search of the hotel room.  The district court suppressed the items found under the mattress and on the nightstand, determining that under the search-incident-to-arrest exception to the warrant requirement the officers were only permitted to make a cursory search of Shabazz and the area in his immediate control.  The court did not suppress the handgun magazine, determining that it was reasonable for Officer Boie, before giving Shabazz his clothing, to ensure that there were no weapons in the pockets.  The court also did not suppress the gun, determining that Officer Boie was lawfully checking for weapons in Shabazz’s immediate vicinity when he saw the gun in plain view.

            A jury found Shabazz not guilty of third-degree criminal sexual conduct but guilty of possession of a firearm by a prohibited person.  At sentencing, after stating, “I don’t think I have a choice under the mandatory minimum sentence,” the district court imposed a 60-month sentence.  This appeal follows.



            Shabazz argues that the district court erred by failing to suppress the handgun and the magazine found during the search of his hotel room, asserting that the search violated both the federal and state constitutions.  This court reviews the validity of a warrantless search de novo.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

A hotel-room guest is entitled to Fourth Amendment protection against unreasonable searches and seizures.  Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 893 (1964); State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  Generally, a warrantless search is presumptively unreasonable and the fruits of the unreasonable search must be suppressed, unless the search was conducted incident to a lawful arrest, because of exigent circumstances, or with consent.  Katz v. U.S., 389 U.S. 347, 357-58, 88 S. Ct. 507, 514-15 (1967); Hatton, 389 N.W.2d at 232. 

The district court ruled that the gun was admissible, determining that Officer Boie was lawfully looking for weapons in Shabazz’s immediate vicinity as part of a search incident to arrest when he saw the gun in plain view.  The district court found that Officer Boie

clearly had the right to check into [Shabazz’s] immediate vicinity to make sure there was not a weapon within his reach.  They were going to allow [Shabazz] to stand up and get dressed.  The officer ha[d] a right to make sure [Shabazz] would not be a danger to him when he did so.  When the officer was lawfully and appropriately in the position he was at, in plain sight he observed the gun in the shoe.


To conduct a lawful search incident to arrest, the police must confine their search to “the arrestee’s person and the area ‘within his immediate control’ ― construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”  Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969).  A suspect’s clothing may be searched incident to his arrest.  Id., 395 U.S. at 762-63, 89 S. Ct. at 2039-40. 

Shabazz argues that the district court erred by concluding that Officer Boie discovered the gun while lawfully searching the motel room incident to Shabazz’s arrest.  Shabazz notes that he was escorted into the motel room after he was arrested and handcuffed, and he asserts that an officer cannot legally search a motel room incident to arrest if the arrest takes place outside the room.  See Vale v. Louisiana, 399 U.S. 30, 33-34, 90 S. Ct. 1969, 1971 (1970) (holding that “if a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house”).  Shabazz further maintains that an officer cannot maneuver an arrestee close to personal belongings in order to search the items then within the arrestee’s control and argues that if the officers were concerned that he might gain possession of a gun, they should have kept him in the hallway.  See, e.g., United States v. Hill, 730 F.2d 1163, 1166-67 (8th Cir. 1984) (holding that the search of a defendant’s suitcase was not a valid search incident to arrest when officers moved him away from place of arrest to a location near the suitcase). 

But the police may enter a defendant’s room to get clothing that a defendant may need to wear to jail.  State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983).  And because police arresting an improperly clothed defendant in the hallway or the doorway of his residence may enter the residence to obtain proper clothing, any evidence in plain view that is then discovered is admissible.  See id.; see generally 3 W. LaFave, Search and Seizure § 6.4(a), at 313-14 (3d ed. 1996) (stating that “[o]ften the defendant will ask that he be allowed to [obtain clothing], although on some occasions it appears that the police have been the motivating force in causing the defendant to seek out other clothing.  In either event, the courts have had little hesitancy in holding admissible evidence discovered by the police as a consequence”).  For example, in Griffin, a defendant who was not wearing a coat or shoes was arrested in the hallway of a Minneapolis rooming house.  336 N.W.2d at 521.  When the police went into the defendant’s room to get a coat and shoes for him to wear to the police station, they discovered a coin purse and purse matching the description of items that had been stolen.  Id.  The supreme court upheld the seizure of the items because (1) the police “had to enter the room” to get the defendant a coat and shoes and (2) the seized items were in plain view.  Id. at 524. 

But Shabazz asserts that even if the officers were authorized to bring him into the motel room, Officer Boie’s search was not an authorized search incident to arrest because the search was not substantially contemporaneous with the arrest.  See Vale, 399 U.S. at 33, 90 S. Ct. at 1971 (stating that a search may be incident to arrest only if the search is substantially contemporaneous with the arrest).  Shabazz notes that Officer Boie was waiting outside the room’s window when Shabazz was handcuffed and questioned by Officer Heilman.  It is unclear whether Shabazz had been advised that he was under arrest before Officer Boie entered the room, but because the record shows that Boie’s search was conducted “shortly after” Shabazz was handcuffed, we conclude that the search was substantially contemporaneous with Shabazz’s arrest. 

Shabazz also disputes the court’s finding that the gun was in plain view when Officer Boie discovered it.  An item is in plain view if “1) [the] police were lawfully in a position from which they viewed the object, 2) the object’s incriminating character was immediately apparent, and 3) the officers had a lawful right of access to the object.”  In re Welfare of G.M., 560 N.W.2d 687, 693 (Minn. 1997).  Shabazz asserts that the determinative issue is whether Officer Boie was lawfully searching near the bed when he saw the gun in plain view.  Shabazz argues that Officer Boie had no right to be there, asserting that Boie was not conducting a valid search incident to arrest because the area searched was not accessible to Shabazz or in his immediate vicinity.  Shabazz notes that his hands were cuffed behind him, he was being guarded by another officer, and he was at least six feet away from the area where Officer Boie was searching when Boie saw the gun in plain view. 

We conclude that the district court did not err by determining that Officer Boie was “lawfully and appropriately” where he was when he saw the gun in plain view.  The district court reasoned that:  (1) because Shabazz was wearing only a blanket at the time of his arrest, the officers had the right to enter the room in order to retrieve Shabazz’s clothing and (2) because presumably the officers were going to allow Shabazz “to stand up and get dressed” before transporting him to the police station, Officer Boie, who was standing near Shabazz’s clothing, had the right to search the immediate vicinity to ensure that there would be no weapons within Shabazz’s reach when he did dress.  See Chimel, 395 U.S. at 763, 89 S. Ct. at 2040; State v. Fisher, 588 N.W.2d 515, 517 (Minn. App. 1999) (holding that when conducting a search incident to arrest, officers may check the area around the suspect for their own protection).  We agree with the district court’s reasoning, particularly because the officers had reason to believe that there was a gun in the room based on Wesson’s report, and conclude that the district court did not err by admitting the gun. 

The district court also ruled that the gun magazine was admissible because Officer Boie discovered it while searching Shabazz’s clothing for weapons during a lawful search incident to an arrest.  But, noting that the officers obtained a “paper jail-type suit” for him to wear to jail, Shabazz maintains that the officers did not need to dress him in the clothing that was searched and that, therefore, Officer Boie did not have justifiable reason to search the clothing.  Thus, Shabazz argues that the district court erred by failing to suppress the magazine.  But the record does not show that before Officer Boie’s discovery of the magazine, the officers intended to obtain different clothingfor Shabazz to wear to jail.  Because it was reasonable for Officer Boie to search the pockets of Shabazz’s clothing for weapons before allowing him to get dressed, the district court did not err by determining that the magazine should not be suppressed.


An appellate court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion.  State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).  At Shabazz’s sentencing, the district court sentenced him to 60 months, stating, “I don’t think I have a choice under the mandatory minimum sentence.”  Minnesota Statutes section 609.11, subdivision 5(b) (2002), provides that a defendant convicted of possession of a firearm by a prohibited person shall be committed to the commissioner of corrections for not less than 60 months.  Subdivision 8(a), however, provides that a court may, on its own motion, sentence a defendant without regard to the mandatory minimum sentence if the court finds substantial and compelling reasons to do so.  But subdivision 8(b) further provides that the “court may not, on its own motion or the prosecutor’s motion, sentence a defendant without regard to the mandatory minimum sentences established by this section if the defendant previously has been convicted of an offense listed in subdivision 9 in which the defendant used or possessed a firearm or other dangerous weapon.”  The offenses listed in Minn. Stat. § 609.11, subd. 9, for which a mandatory minimum sentence shall be served include aggravated robbery.  While Shabazz has an aggravated-robbery conviction, the record does not show that it involved the use of a weapon.  Because, under the statute, it is possible that the court could have departed, Shabazz asserts that this matter must be remanded so that the district court can impose the sentence it deems appropriate.

            The state contends that Shabazz’s sentence should be modified to the 57-month presumptive sentence under the sentencing guidelines because the district court erroneously believed that the mandatory 60-month sentence applied.  But under the sentencing guidelines, the presumptive sentence is the “mandatory minimum sentence according to statute or the duration of the prison sentence provided in the . . . Sentencing Guidelines Grid, whichever is longer.”  Minn. Sent. Guidelines II.E.  Here, because the statutory minimum sentence is longer than the guidelines sentence, the 60-month mandatory minimum sentence is the presumptive sentence.

Under Minn. Stat. § 609.11, subd. 8(a), the court had the discretion to sentence Shabazz without regard to the mandatory minimum sentence if it found substantial and compelling reasons to do so.  We therefore remand for resentencing to give the district court an opportunity to confirm that Shabazz’s aggravated-robbery conviction did not involve the use of a weapon and, if it did not, to determine whether any substantial and compelling reasons exist to depart from the presumptive guidelines sentence.  We express no opinion on that issue.


Shabazz also filed a pro se supplemental brief in which he argues that the prosecutor engaged in malicious prosecution by bringing the charges of criminal sexual conduct and possession of a firearm by a prohibited person without probable cause.  Probable cause exists if all the facts and circumstances would warrant a cautious person in believing that the suspect is guilty.  Olson, 634 N.W.2d at 228.  The existence of probable cause is a question of law.  Id.  Here, we conclude that probable cause to bring the charges of criminal sexual conduct and possession of a firearm existed because (1) a 14-year-old girl admitted that she engaged in sexual intercourse with Shabazz and (2) a gun was found in Shabazz’s room and a magazine for a gun in his clothing.  Thus, because the circumstances would lead a cautious person to believe that Shabazz was guilty of the charged crimes and, further, Shabazz was found guilty of the charge of possession of a firearm by a prohibited person, we conclude that the prosecutor did not engage in malicious prosecution by bringing the charges against Shabazz.

Affirmed in part, reversed in part, and remanded.