This opinion will be unpublished and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

A03-1985

 

 

State of Minnesota,

Respondent,

 

vs.

 

Demetrius DeMarco Spencer,

Appellant.

 

 

Filed October 5, 2004

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 03028700

 

John Stuart, State Public Defender, Bridget Kearns, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN† 55487 (for respondent)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge; Anderson, Judge; and Halbrooks, Judge.

 


U N P U B L I S H E D† O P I N I O N

 

G. BARRY ANDERSON, Judge

 

††††††††††† Appellant, Demetrius Spencer, was arrested on April 24, 2003, for unlawful possession of a firearm.† At the Rasmussen hearing two of the three arresting officers, Spencer, and Spencerís girlfriend, Callie Nelson, testified.† The district court determined that there was an objective basis for stopping Spencerís vehicle, one of the officers observed a firearm in Spencerís car, and the circumstances justified the search.† The district court convicted Spencer, and Spencer now appeals.† We affirm.

FACTS

 

††††††††††† On April 24, 2003, shortly before midnight, Minneapolis Police Officers Kingsbury and Taylor stopped Spencer for a traffic violation.† After Spencer pulled over, the officers, with spotlights, illuminated the van that Spencer was driving.† There were two passengers in the front seat of the van, and an additional passenger was bent over in a rear seat.† This caused the officers to be concerned for their safety.†

††††††††††† Kingsbury approached the driver and Taylor approached the passengers.† The rear seat passenger refused to comply with directions from the officers to raise his hands; instead, he repeatedly raised and lowered his hands.† Taylor testified that, because of the passengerís actions, he stepped closer to the vehicle and, using his flashlight, observed a large handgun below the seat.†

††††††††††† Taylor alerted Kingsbury to the presence of the gun and the officers removed and handcuffed the passengers.† Spencer was frisked, and a gun and marijuana were found on his person.†††

††††††††††† Spencer argues that Taylor did not see the gun prior to opening the vehicle door; thus, Taylor engaged in an improper search beyond the bounds of the original stop.† Nelson testified that she had not been with Spencer on the night in question but that she was familiar with the vehicle.† Nelson testified that the windows are tinted and hard to see through and that it is difficult to impossible, depending on location, to see through the windows into the interior of the vehicle.† Nelson testified that she did not believe it was possible to see under the seat of the van from outside the vehicle.† Spencer testified inconsistently regarding whether the vehicle door was open when Taylor observed the gun.†

††††††††††† The district court found that Taylor observed the firearm prior to opening the door and admitted the fruits of the search.† Spencer is prohibited by law from possessing a firearm.† A Lothenbach trial was held, and Spencer was convicted of unlawful possession of a firearm in violation of Minn. Stat. ßß 624.713, subd. 1(b), and 609.11, subd. 5(b) (2002).† This appeal followed.

D E C I S I O N

 

††††††††††† The district courtís factual findings are reversed only if clearly erroneous.† State v. George, 557 N.W.2d 575, 578 (Minn. 1997).† ďA [district] courtís finding is [clearly] erroneous if [the appellate] court, after reviewing the record, reaches the firm conviction that a mistake was made.Ē† State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).

††††††††††† Here, the district courtís finding that Taylor saw the gun prior to opening the door is not clearly erroneous.† Taylor testified that he saw the gun before he opened the door.† Nelsonís testimony is of limited value because she was not present during the stop.† Furthermore, Nelson is clearly not a disinterested witness.† Spencerís testimony was inconsistent because Spencer testified both that Taylor opened the door before noticing the gun and that Taylor spotted the gun before opening the door.† Thus, Taylor gave the strongest testimony, and the district court did not clearly err in relying on his testimony.[1]

††††††††††† Affirmed.



[1] The state also argues that, even if the district court clearly erred, Spencerís conviction should still be affirmed because it was a reasonable intrusion under State v. Ferrise, 269 N.W.2d 888, 891 (Minn. 1978).† Because we conclude that the district court did not clearly err, we decline to address this issue.