This opinion will be
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
George Alan Van Zee,
Filed May 24, 2005
County District Court
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101; and
Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney,
Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St.
Paul, MN 55102-1657 (for respondent)
John N. Nelson, John Nelson & Associates, 175 Lexington
Parkway North, Suite 200, St. Paul, MN
Sand, Adkins & Associates, P.A., 175 Lexington Parkway North, Suite 200,
St. Paul, MN 55104
Considered and decided by Randall, Presiding
Judge, and Crippen, Judge.
P U B L I S H E D O P I N I O N
Seeking reversal of his first-degree
controlled substance conviction, appellant contends the district court erred
when it failed to suppress evidence of narcotics obtained during a stop. Because the record does not support
appellant’s assertion that the vehicle he occupied was stopped without
articulable suspicion of wrongdoing, we affirm.
officers found methamphetamine in appellant George Van Zee’s duffle bag, the
state charged him with knowingly possessing drugs in violation of Minn. Stat.
§ 152.021, subds. 2(1), 3(b) (2002).
Following the denial of his motion to suppress evidence of the drugs,
appellant waived his right to a jury trial and submitted his case to the court
on stipulated facts pursuant to State v.
Lothenbach, 296 N.W.2d 854 (Minn. 1980).
The district court found appellant guilty of first-degree controlled
substance crime and sentenced him to an executed term of 158 months.
2003, St. Paul Police Officer Ronald Lehner received a call from a citizen
stating that appellant was operating a methamphetamine laboratory in the attic
of a house and frequently stole supplies of anhydrous ammonia from nearby farm
Lehner received the same
information from a confidential reliable informant who had been inside the
house and personally witnessed the operation.
Officer Lehner confirmed
that appellant lived at the location and conducted surveillance of the
house. Based on the information the
officer collected, he was able to obtain a search warrant for appellant, the
residence, and two vehicles regularly parked in front of the house, including a
1986 Ford LTD Crown Victoria (Ford) with Minnesota license plate 761 PXT. Neither this warrant nor another issued on
May 7, 2003, were executed.
officer then maintained surveillance at 1362 Birmingham and witnessed arrival of the Ford
identified in the search warrant. The
officer suspected this vehicle was used to transport stolen anhydrous
ammonia. About a half hour later, appellant
came out of the house carrying a black duffle bag, placed the duffle bag in the
trunk, and entered as a passenger in the Ford.
testified that he suspected appellant had narcotics on him or in the trunk of
the vehicle. When the vehicle left 1362 Birmingham, Officer Lehner ordered
his partner, who was waiting nearby in a squad car, to stop the vehicle.
officers temporarily lost sight of the vehicle, but regained surveillance
approximately eight blocks later. Officer Jeffrey Whitbeck stopped the Ford. Three people were in the vehicle; appellant
was in the back seat. The driver of the
vehicle was a female and she did not have her driver’s license. While talking to the driver, Officer Whitbeck noticed
appellant in the back seat moving around nervously. The officer asked appellant to put his hands
where they could be seen. Appellant
initially complied with the officer’s request but quickly began moving his
hands around again. Officer Whitbeck drew his
firearm because he thought appellant had a weapon and asked appellant to exit
In the process of patting down
appellant, Officer Whitbeck
felt a long, hard, cylinder-type object inside appellant’s front right
pocket. The officer testified that he
had knowledge of small weapons and suspected that the object he felt could
possibly have been a weapon. He also
testified to his training on common objects being used as weapons such as
razors, needles, and pens. Uncertain of
what the object might be, and claiming concern for his safety, the officer
pulled the object out of appellant’s pocket to ensure it was not a weapon. The object was contained in a leather case,
which the officer opened, and then removed a glass cylinder tube containing a
white powder. Officer
Whitbeck took possession of the
container and handcuffed and arrested appellant.
Shortly thereafter, Officer Jeffrey Slagerman arrived with a
narcotics-detection dog and began an exterior search of the vehicle. The dog gave a “slight indication of the
right rear seam of the trunk.” Following
an interior search of the vehicle, the dog gave a strong positive alert for a
narcotic in the back seat of the vehicle.
Upon opening the trunk, the officers smelled a strong chemical odor and
the dog further “alerted” on the black duffle bag. A hazardous material team was called in after
the officers opened the bag and found chemicals. The bag contained a high level of ammonia and
several packets of methamphetamine with a total solid weight of 45.5
D E C I S I O N
pretrial orders on motions to suppress evidence, an appellate court may
independently examine the facts and determine de novo whether the district
court’s ruling was in error. State v. Harris,
590 N.W.2d 90, 98 (Minn.
primarily contends that it was improper to execute the search warrant at the
location in which the stop occurred, but this was not the basis of the district
court’s decision. As appellant
acknowledges, the district court stated that the officer had a reasonable basis
for the stop, without use of the warrant.
See Marben v. Dep’t of Pub. Safety, 294
N.W.2d 697, 699 (Minn. 1980) (stating that “[i]t is well settled that in
accordance with the Fourth Amendment of the United States Constitution a police
officer may not stop a vehicle without a reasonable basis for doing so”). In the court’s words:
believed there were narcotics or narcotics supplies in the vehicle either taken
in there by [appellant] in the black bag . . . .
. . .
[T]hey had gone to
[the Birmingham] house where they had been before and they knew was a house in
which methamphetamine had been used and which illegal guns, unregistered guns,
had been present. And, so, all of the
circumstances taken together gave Officer Lehner, without the fact that there
was even a search warrant, a justifiable reason to stop this vehicle and to do
In addition to that,
when they did the stop, then, of course, the [appellant] made some—was
uncooperative, acted in a way that raised suspicion, so much that the other
officer drew his gun because he was concerned.
that the information used earlier to obtain the search warrant was stale and
not based on circumstances at 1362
In order to justify such an investigatory stop, “[t]he police must only
show that the stop was not the product of mere whim, caprice or idle curiosity,
but was based upon ‘specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.’” State
v. Pike, 551 N.W.2d 919, 921-22 (Minn.
1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 1880 (1968)). The officer assesses
the need for a stop “on the basis of ‘all of the circumstances’” and “‘draws
inferences and makes deductions . . . that might well elude an untrained
person.’” State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (quoting United
States v. Cortez, 449 U.S.
411, 418, 101 S. Ct. 690, 695 (1981)).
The information necessary to support an investigative stop need not be
based on the officer’s personal observations, rather, the police can base an
investigative stop on an informant’s tip if it has sufficient indicia of
reliability. State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980).
information from a citizen, another reliable informant, prior surveillance, and
movements of appellant with the black duffle bag, Officer
Lehner had reasonable suspicion
for a stop. The record supports Officer Lehner’s
testimony that he believed that the duffle bag contained narcotics and possibly
a portable methamphetamine lab. As
appellant suggests, the officer received some of this information several weeks
earlier, but (a) the significance of the age of the information has not been
shown, (b) much of the information uncovered earlier was freshly corroborated
shortly before the stop, and (c) the earlier information established probable
cause for a search, satisfying a more demanding standard than required to
justify a stop.
raised additional issues at oral argument, most of which cannot be reviewed
because of his limited briefing. See State v. Butcher, 563 N.W.2d 776,
780 (Minn. App. 1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).
oral argument appellant contended that the officer did not have probable cause
to pat and frisk appellant. The state
argues that while Officer Whitbeck
was talking to the driver of the vehicle the officer was distracted by
appellant’s nervous movements in the back seat.
asked appellant to keep his hands where they could be seen; after appellant did
not adhere to the officer’s request, the officer asked him to exit the
vehicle. Additionally, the drug
circumstances of the investigation contributed to the officer’s fear that
appellant could be armed.
includes one sentence regarding the pat and frisk and no citation to legal
authority. We are not to address issues
not supported by rational argument or citation to legal authority. State
v. Krosch, 642 N.W.2d 713, 719 (Minn.
B. Seizure of the Leather Case
The state contends
that the search was justified as a protective effort to locate weapons. Terry, 392 U.S.
at 26, 88 S. Ct. at 1883. Based on appellant’s actions, the officer’s
experience, and the knowledge the officer had regarding the illegal guns at the
house appellant had just left, his belief that the object he felt in
appellant’s pocket could be a weapon was reasonable. See
State v. Bitterman, 304 Minn. 481, 483,
486, 232 N.W.2d 91, 93-94 (1975) (prescription bottle); State v. Gannaway, 291 Minn.
391, 393, 191 N.W.2d 555, 556-57 (1971) (corncob pipe); State v. Hart, 412 N.W.2d 797, 800-01 (Minn. App. 1987) (test
tube), review denied (Minn. Nov. 13,
states that “one might ask . . . how a small pen cap could be characterized as
a weapon.” Because this evident argument
of appellant is not supported by argument or citation to legal authority, we are
not to address this issue. Krosch, 642 N.W.2d at 719.
C. Search of Duffle Bag
oral argument appellant contended that the search of his duffle bag was
illegal. The state argues that the
cumulative prior information, appellant’s furtive movements, the fruit of the
personal search, and the dog sniff all established probable cause to search the
duffle bag. The district court agreed
and stated “there was almost more here than necessary” to allow the search.
did not address this argument; again, therefore, we will not address this
issue. Krosch, 642 N.W.2d at 719.
argues that the state failed to prove that he possessed the requisite amount of
controlled substance to support a first-degree conviction. Appellant submitted his case on stipulated
facts pursuant to State v. Lothenbach,
296 N.W.2d 854 (Minn.
1980). In State v. Busse, 644 N.W.2d 79 (Minn. 2002), the supreme court held
that an appellant may not challenge the sufficiency of the evidence after a Lothenbach trial on stipulated facts
because the Lothenbach procedure is
used to submit a case to the district court while “preserving pretrial issues
for appeal.” Id.at 88 (quotation omitted).
appellant may properly challenge the state’s proof of elements of the charge by
proceeding to trial instead of stipulating to the state’s case. Id. at
89. By pleading guilty and stipulating
to the state’s case, appellant waived any challenge on this point. See
Busse, 644 N.W.2d at 89; Lothenbach,
296 N.W.2d at 857.