This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Matthew Duane Stapleton,
Filed August 16, 2005
Crow Wing County District Court
File No. K2-02-1157
Donald F. Ryan,
Mike Hatch, Attorney General, Kimberly Ross Parker,
Assistant Attorney General, 1800
Timothy T. Mulrooney, Jane E. Rydholm, Special Assistants State Public Defender, Henson & Efron, P.A., 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402 (for appellant)
Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*
Appellant challenges his conviction of third-degree possession of a controlled substance arguing that the district court erred in denying his motion to suppress evidence obtained from an investigatory stop and search and seizure, and denying his motion for a downward departure in his sentence. Appellant also argues that his conviction must be reversed because the attorney who represented him at the suppression hearing subsequently appeared for the state at appellant’s motion for a continuance. Because we conclude that the investigatory stop was supported by reasonable and articulable suspicion and the search and seizure was supported by probable cause; that the appearance of appellant’s former attorney at appellant’s motion for continuance was harmless error; and that the district court did not abuse its discretion in denying appellant’s motion for a downward departure, we affirm.
In the early morning hours of May 9, 2002, Brainerd Police Officer Tim Friis was dispatched to the parking lot of a bar to investigate a report that a male was lying in a mud puddle. When Friis arrived at the scene, the bar’s owner identified appellant Matthew Stapleton as the person who had been lying in the puddle. Friis approached Stapleton and observed that he was staggering and appeared to be intoxicated or under the influence of a controlled substance. Friis asked Stapleton to identify himself and explain his behavior but he received no response. After some delay, Stapleton removed his wallet and produced identification. Friis then asked Stapleton if he was carrying narcotics or weapons but again received no response. Throughout the encounter, Friis observed that Stapleton’s demeanor repeatedly changed from “giggly” to “gruff.” Stapleton’s evasive conduct, including his refusal to indicate whether he was armed, coupled with his erratic mood changes and “delirious state,” caused Friis to conclude that Stapleton may have been armed and was a potential danger to himself and others.
Due to the circumstances, Friis decided to conduct a pat-down search. During the pat-down, Friis felt a large bulge in Stapleton’s left pocket that he could not immediately identify. Friis asked Stapleton to remove the bulge from his pocket. Without responding orally, Stapleton slowly put his hand into his pocket and removed a large amount of cash; at the same time, Friis observed a clear plastic baggie containing a white powder protruding from Stapleton’s pocket. Friis believed that the baggie contained methamphetamine. Stapleton stuffed the baggie back into his pocket and began to turn away from Friis, but Friis retrieved the baggie from Stapleton’s pocket and arrested him. The white powder later tested positive for methamphetamine.
Stapleton was charged with second-degree possession of a controlled substance under Minn. Stat. § 152.022, subd. 2(1) (2002). Stapleton, represented by a public defender, moved at an omnibus hearing to suppress the methamphetamine as the fruit of an unlawful search. The district court denied his motion. More than three months later, Stapleton, represented by a new public defender, appeared before the district court; Stapleton’s attorney argued for continuances regarding four separate court files pertaining to Stapleton. The hearing transcript indicates that the attorney who represented Stapleton at the earlier suppression hearing appeared as an assistant county attorney for the state. However, Stapleton’s former attorney did not note his appearance, make a statement, or contest Stapleton’s motions. Subsequently, the matter proceeded to trial, and Stapleton was found guilty by a jury. The district court sentenced Stapleton to the presumptive sentence of 48 months in prison. This appeal follows.
D E C I S I O N
Search and Seizure
When the facts are
undisputed, this court may independently review them and decide as a matter of
law whether the seized evidence should have been suppressed. State
four arguments in support of his motion to suppress. First, Stapleton argues that, at the
inception of the investigatory stop, he was unlawfully seized by Friis. But Stapleton was not seized for Fourth
Amendment purposes when Friis questioned him outside of the bar. See
State v. Vohnoutka, 292 N.W.2d 756, 757 (
argues that his mere intoxication, absent knowledge that he was armed, does not
give rise to the reasonable and articulable suspicion that would justify a pat-down.
Terry provides that “[t]he officer need
not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” Terry,
Third, Stapleton argues that it was unlawful for Friis, who identified a large bulge in Stapleton’s front left pocket, to ask Stapleton if he would remove the contents of the pocket, which consisted of a large amount of cash and the plastic baggie. Stapleton argues that Friis’s request was not based on reasonable and articulable suspicion and that Stapleton’s removal of the items was not voluntary. We review each of his arguments in turn.
additional reasonable and articulable suspicion to request Stapleton to empty
his pocket: Friis felt a large bulge in Stapleton’s pocket and was unable to
identify it. A frisking officer may
remove an object that potentially may be a weapon but is indiscernible through
a suspect’s clothing. See State v. Bitterman, 304Minn.481, 486, 232 N.W.2d 91, 94 (1975) (“Since weapons are not always
of an easily discernible shape, a mockery would be made of the right to frisk
if the officers were required to positively ascertain that a felt object was a
weapon prior to removing it.”). Stapleton
argues that the reasoning in State v. Fort
applies. See 660 N.W.2d 415, 419 (
argues that he did not voluntarily remove the cash and clear plastic baggie
from his pocket. A police “officer has a
right to ask to search and an individual has a right to say no.” State
v. Doren, 654 N.W.2d 137, 142 (
Here, the district
court found that Stapleton’s consent was voluntarily given. “The [district] court’s factual findings are
subject to a clearly erroneous standard of review[.]” State
v. Critt, 554 N.W.2d 93, 95 (
argues that, even if the pat-down and consent questioning were proper, Friis
did not have probable cause to seize the baggie from Stapleton’s pocket. Stapleton asserts that the district court rejected
Friis’s testimony on this issue because its findings of fact do not state that
Friis observed white powder inside of the baggie. Stapleton’s argument is not persuasive. District courts are charged with making
“appropriate findings” resolving issues presented at omnibus hearings.
The test of
probable cause considers whether a reasonable person “would entertain an honest
and strong suspicion that a crime has been committed.” In re
Welfare of G. (NMN) M., 560 N.W.2d 687, 695 (
Attorney-Client Conflict of Interest
argues that his conviction should be reversed because his public defender at
the suppression hearing later appeared on behalf of the state in an uncontested
continuance hearing. The state asserts
that Stapleton was not prejudiced because his former attorney did not speak
during the hearing. The state also
argues that if the attorney’s appearance at the uncontested continuance hearing
is error, it is harmless. Stapleton
raises the conflict of interest issue for the first time on appeal, so we are
not required to review it. See Garza v. State, 632 N.W.2d 633, 637
By representing Stapleton at the suppression hearing and then appearing on behalf of the state in the same matter, the attorney violated a provision of the Minnesota Rules of Professional Conduct. See Minn. R. Prof. Conduct 1.9(a) (providing that an attorney who has represented a client in a matter shall not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation”). But the proper remedy for a conflict of interest violation is disqualification of counsel or the initiation of an ethics complaint, not reversal of Stapleton’s conviction. See Minn. R. Prof. Conduct 8.3(a) (requiring lawyer with knowledge of another lawyer’s violation of rules to report offending lawyer to Office of Lawyers Professional Responsibility). The preamble to the Rules of Professional Conduct also rebuts Stapleton’s argument:
[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extradisciplinary consequences of violating such a duty.
The appearance of
Stapleton’s former attorney for the state at a subsequent continuance hearing
without any explanation is not only unethical, but also is inconsistent with an
attorney’s responsibilities as “an officer of the legal system and a public
citizen having special responsibility for the quality of justice.”
The district court
sentenced Stapleton to the presumptive sentence of 48 months in prison. “[A] sentencing court has no discretion to
depart from the sentencing guidelines unless aggravating or mitigating factors
are present.” State v.
that his sentence was an abuse of discretion because the district court should
have taken into account his criminal-history score of zero and his physical,
mental, and chemical health problems.
The state argues that Stapleton waived his challenge to the sentence by
not raising it at the sentencing hearing. We find the state’s argument persuasive. At the sentencing hearing, after the
prosecutor commented on the findings of the presentence investigation,
Stapleton’s attorney stated, “I believe the Presentence Investigation speaks
for itself.” Because the presentence
investigation recommended the presumptive sentence of 48 months, Stapleton did
not challenge the applicability of the sentence before the district court. This court will generally not consider
matters raised for the first time on appeal.
Garza, 632 N.W.2d at 637. Even if
we did address Stapleton’s argument, we conclude that the imposition of his sentence was well within the district court’s discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.