This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Hajj Abdul Shabazz,
Filed April 20, 2004
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.
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.
Affirmed in part, reversed in part, and remanded.