This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Anthony Paul Gideo,



Filed December 20, 2005


Willis, Judge


Olmsted County District Court

File No. K0-04-616



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


Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN  55904-3710 (for respondent)


Duane A. Kennedy, 724 First Avenue Southwest, Suite #3, Durst Building, Rochester, MN  55902 (for appellant)


            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal, appellant challenges a pretrial order denying appellant’s motion to suppress evidence.  Because appellant waived his right to appeal this issue when he pleaded guilty, we affirm.


While conducting surveillance of a movie-theater parking lot, a Rochester police officer observed two males in a parked Chevrolet Monte Carlo.  The officer saw the Monte Carlo’s parking lights flash when another car approached, after which a passenger left the Monte Carlo and entered the second car.  After approximately 30 seconds, that person got out of the second car and re-entered the Monte Carlo.  The second car then left the parking lot.  The officer drove his unmarked squad car to a position behind the Monte Carlo and activated the squad car’s red strobe light.  The Monte Carlo sped away and went through a stop sign.  The Monte Carlo eventually pulled over and stopped, and the officer ordered the occupants out of the car.  The driver identified himself as appellant Anthony Gideo.  The police officer recovered cocaine from Gideo’s car and from Gideo’s pocket.

The state charged Gideo with third-degree controlled-substance crime; third-degree conspiracy to commit controlled-substance crime; fifth-degree controlled-substance crime; fleeing a peace officer; and reckless driving.  At an omnibus hearing, Gideo moved to suppress all evidence recovered as a result of what he argued was an illegal seizure in the movie-theater parking lot.  The district court agreed that the police officer’s actions in the parking lot constituted an illegal seizure but denied Gideo’s motion to suppress on the ground that Gideo’s actions in leaving the parking lot at high speed and failing to stop for a stop sign were intervening circumstances sufficient to purge the evidence of the taint of the initial seizure.

Gideo subsequently entered into an agreement whereby he pleaded guilty to third-degree controlled-substance crime and to fleeing a peace officer and the state dismissed the remaining counts and another charge in an unrelated case.  There is no evidence in the record that Gideo pleaded guilty with the express understanding that he retained his right to appeal from the district court’s pretrial denial of Gideo’s motion to suppress.  Consistent with the plea agreement, the district court accepted Gideo’s plea of guilty to the two felony counts and dismissed the other counts and the charge in the unrelated case.  The district court then ordered a probationary sentence.  Gideo now challenges the district court’s pretrial order denying the motion to suppress evidence on appeal.


In Minnesota, “a guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects, including Fourth Amendment claims.”  State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).  In Lothenbach, the supreme court noted that

[a] guilty plea represents a break in the chain of events which has preceded it in the criminal process.  When a criminal defendant had solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.


Id. (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)).  A defendant may preserve his right to appeal pretrial decisions either by pleading not guilty and going to trial or by pleading not guilty, waiving his right to a jury trial, and stipulating to the state’s case.  Id. 

In Lothenbach, the defendant followed neither of these procedures and instead pleaded guilty, but expressly reserved his right to appeal certain Fourth Amendment issues, with the acquiescence of the prosecutor and the district court.  Id.  The supreme court did not approve of the procedure, but because the record supported a determination that the defendant did not intentionally relinquish his right to appeal Fourth Amendment issues, the supreme court “decided to put substance over form and treat this as an appeal from a finding of guilty based on stipulated facts.”  Id. at 858; see also State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986) (treating the appeal as one from a finding of guilty based on stipulated facts because the circumstances were similar to those in Lothenbach).  This court has concluded that “[t]he Lothenbach procedure for expediting appellate review of pretrial issues provides for a stipulation and a waiver of jury trial, not for a guilty plea under which a defendant could bargain for a favorable disposition.”  State v. Verschelde, 585 N.W.2d 429, 431 (Minn. App. 1998).

            Here, Gideo pleaded guilty to two felony charges.  He could have preserved his right to appeal the district court’s pretrial decision by pleading not guilty, waiving his right to a jury trial, and stipulating to the facts of the state’s case.  But Gideo did not; nor is there any evidence in the record that Gideo expressly reserved his right to appeal pretrial rulings.  The record shows instead that Gideo entered into a plea agreement with the state and pleaded guilty to two felony counts.  In return, the state dismissed three other counts and a charge in an unrelated case.  The record shows that Gideo chose to plead guilty in order to benefit from the bargain that he made with the state.  Nothing in the record suggests that the state entered into a plea agreement with Gideo and simultaneously agreed that Gideo could reserve his right to appeal pretrial rulings.  Cf. Verschelde, 585 N.W.2d at 431-32 (noting that the Lothenbach procedure is generally “allowed primarily as a favor to the defendant to expedite appellate review, not as a benefit to the prosecution that would provide consideration for a plea bargain”).  We conclude, therefore, that Gideo waived his right to appeal from the pretrial order when he pleaded guilty.