This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jackson County District Court
File No. K4-04-1063
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert C. O’Connor, Jackson County Attorney, Jackson County Courthouse, 405 Fourth Street, Jackson, MN 56143-1588 (for respondent)
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
David T. Schultz, Special Assistant Public Defender, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Peterson, Presiding Judge; Chief Judge Toussaint; and Collins, Judge.
Appellant challenges his conviction for carrying a weapon without a permit on the grounds that convicting evidence should have been suppressed and that he did not receive effective assistance of counsel. Because we conclude that the district court did not err in refusing to suppress the evidence and because appellant has not shown that his counsel’s assistance fell below an objective standard of reasonableness, we affirm.
At about 10:30 one night during Memorial Day weekend in 2004, appellant Todd Edwards and his wife were sitting at a picnic table near their campsite in a park. Three police officers were patrolling the park. As they approached, appellant’s wife tucked something underneath her leg on the bench. One officer asked her to stand; he then found a brass pipe and a bag of a green leafy substance he believed to be marijuana on the bench where she had been sitting.
When asked for her identification, appellant’s wife said it was in her car. An officer went with her to the car and saw a black case of the type used to carry a handgun. Appellant’s wife told the officer she knew nothing about the case; it belonged to appellant. Appellant told the officer he had brought the gun to the park because he was having trouble with some people and, if a certain individual showed up, appellant intended to shoot him.
Appellant was charged with carrying a pistol without a permit, a gross misdemeanor, under Minn. Stat. § 624.714, subd. 1a. At an omnibus hearing, after the three officers had testified, appellant moved the district court to suppress evidence and dismiss the charge on the ground that his wife and her car had been illegally searched.
The district court denied appellant’s motion, concluding that: (1) appellant and his wife had no expectation of privacy on a park bench; (2) the officer’s observation of appellant’s wife moving something from the table and concealing it provided an articulable factual basis to ask her to stand so he could search the bench where she had been sitting; (3) finding the pipe and the green leafy material gave the officers probable cause to charge her with petty misdemeanor possession of a small amount of marijuana and of drug paraphernalia and thus to require her to provide identification; and (4) the officer acted lawfully when he accompanied appellant’s wife to her car to obtain her identification and saw in plain view a case of the type used to carry handguns, as well as when he seized the case and the pistol it contained.
Proceeding under Lothenbach, appellant stipulated to carrying a pistol without a permit. He now challenges his conviction, arguing that the officers acted illegally in searching his wife and questioning him and that he was denied effective assistance of counsel.
D E C I S I O N
1. Denial of motion to suppress evidence
“When reviewing pretrial orders on
motions to suppress evidence, [this court] may independently review the facts
and determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d
90, 98 (
A. Search of appellant’s wife
One of the officers who approached appellant and his wife testified that, “As we were approaching [them, appellant’s wife] tucked something between her legs. . . . It was very evident she didn’t want us to see it[. W]hen she made eye contact and realized we were law enforcement she tucked the material between her legs so it was out of our visibility.” Another officer testified that he “asked [appellant’s wife] if she would stand up because I saw her take something from the table.”
argues that his wife’s act in taking an item from the table, in sight of the
officers, and placing it under her leg, out of their sight, did not justify the
search because the act was not illegal and could have been innocent. But this court has rejected “[the] assertion
that facts which are consistent with innocent activity cannot form the basis
for reasonable suspicion to justify a Terry
on State v. Dickerson, appellant
argues that the officer had no basis to satisfy his curiosity to determine what
the object was. 481 N.W. 2d 840, 844 (
We conclude that the search of appellant’s wife was not illegal.
B. Questioning of appellant
Without giving appellant a Miranda warning, the officer who discovered the gun in appellant’s wife’s car “asked [appellant] why he had the weapon down at the park loaded and he indicated they had been having some problems with some people and if [a certain person] was going to show up he [appellant] was going to use it to shoot [that person].”
contends that the officers were obliged to give him a Miranda warning because he was in custody when they questioned him.
States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) sets out six factors
for establishing custody. The first
three indicate an absence of custody: (1) whether the suspect was informed that
questioning was voluntary, that he was free to leave, or that he was not
considered under arrest; (2) whether the suspect possessed unrestrained
freedom of movement during the questioning; and (3) whether the suspect
initiated contact or voluntarily acquiesced to an official request to respond
Applied here, an analysis of these factors indicates that appellant was not restrained as though he were under formal arrest. He was not handcuffed or told to remain in a particular spot. He responded freely to questions about the gun case after his wife said she knew nothing about it. The officers never drew their weapons or threatened appellant. He was not arrested at the conclusion of the questioning, but was left at his campsite in the park.
Because appellant was not in custody when he was asked about the gun, the fact that appellant was not given the Miranda warning did not make his interrogation illegal.
2. Ineffective assistance of counsel
To succeed on his ineffective
assistance of counsel claim, appellant must show that his counsel’s performance
fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s errors, the outcome would have
been different. Voorhees v. State, 627 N.W. 2d 642, 649 (
The record does not show that the performance of appellant’s counsel fell below an objective standard of reasonableness. Appellant’s counsel said at the initial hearing that he proposed challenging the search and seizure at an omnibus hearing. In his argument at the conclusion of the omnibus hearing, he did so, contending that the officers had no right to ask appellant’s wife to stand up and reveal what she had placed underneath her leg; he compared appellant’s and his wife’s expectation of privacy to that of occupants of a fish house. Appellant’s counsel responded to the state’s argument by saying the officers lacked reasonable, articulable facts to search and seize. The transcripts of the bifurcated omnibus hearing reflect his vigorous questioning of the officers in an effort to show that their search was illegal. Judged by an objective standard, his defense of appellant was reasonable.
Appellant also claims ineffective
assistance because his attorney did not raise the Miranda issue until two weeks after the hearing, when he sent the
district court a copy of an order opinion, United
States v. Taylor, Criminal No. 04-219 (D. Minn. Aug. 17, 2004) (granting
suppression of evidence because defendant had not received a Miranda warning before he answered
questions from police), with a letter stating that it might “be helpful,” but
providing no analysis or explanation. The
state replied with a letter objecting to the presentation of
We are satisfied that appellant was not deprived of effective assistance of counsel.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant was also charged with petty misdemeanor possession of drug paraphernalia because the officers found a pipe when they did a pat down search for other weapons. This charge was later dropped.
 For the first time on appeal, the state argues that
appellant lacks standing to raise this issue.
Because this question of appellant’s standing is not properly before us,
we do not address it. See Roby v. State, 547 N.W. 2d 354, 357
 This issue is not properly before us because
appellant had not presented it to the district court at the time of the
hearing; the record shows that it was presented only tangentially when
appellant’s attorney sent the district court a copy of a federal court order
opinion two weeks after the hearing.
This court does not generally consider matters not presented to and
considered by the district court. Roby, 547 N.W. 2d at 357. But this court may review any matter that the
interest of justice requires.