This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-901

State of Minnesota,

Appellant,

vs.

Kevin Lamont Holmes,

Respondent.

Filed November 22, 1996

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. 96001286

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Michael T. Norton, Acting Minneapolis City Attorney, Timothy T. Mulrooney, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

David M. Gross, 8323 Franklin Avenue West, St. Louis Park, MN 55426-1914 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

This is a pretrial appeal by the state from an order of the district court suppressing evidence and dismissing the charge against Holmes of carrying a weapon without a permit in violation of Minn. Stat. § 624.714. By notice of review, Holmes challenges the district court's interpretation of an exception to the statute. Because we find that the district court improperly suppressed evidence, but properly interpreted the statute, we affirm in part, reverse in part, and remand.

FACTS

On November 20, 1995, a University parking monitor discovered a 1986 Oldsmobile Cutlass parked without a permit in a University of Minnesota contract parking lot. She proceeded to issue a parking ticket. A record check revealed there were seven outstanding warrants on the vehicle for unpaid citations. The parking monitor ordered a "white tag" tow, which under University procedures is an immediate tow and the person issuing the ticket remains at the scene until the tow truck arrives.

While the parking monitor was completing the parking citation and the towing sheet, Holmes and a friend, both football players at the University of Minnesota, returned to the vehicle. The parking monitor told Holmes that his automobile was about to be towed for nonpayment of parking tickets. Holmes explained the vehicle was his wife's, and he was unaware of the tickets. He offered to pay the tickets the next day in an effort to persuade the parking monitor not to tow the vehicle. The parking monitor declined the offer. Holmes and his friend went to the vehicle to retrieve their school books and other personal property. They did not start the vehicle or attempt to leave.

Even though Holmes was cooperative and respectful, the parking monitor testified she felt intimidated by Holmes' large size and feared a possible confrontation. She called for assistance from the University police. In response to the call, Officer Valerie Holes came to the scene. The parking monitor, Officer Holes, and Holmes came together to talk. During the conversation, Holmes put his hands into his pockets. Officer Holes told Holmes to remove his hands from his pockets, and Holmes complied. Later Holmes returned his hands to his pockets, and Officer Holes again told him to remove them.

Officer Holes testified that because of safety concerns resulting from Holmes's reaching into his pockets a second time and from the fact that Officer Holes could not see what Holmes's friend was doing in Holmes's vehicle, she asked Holmes to come to her squad car, intending to place him inside. First, however, in accordance with her normal practice, Officer Holes told Holmes she needed to pat him down to make certain he was not carrying a weapon. The pat-down search resulted in discovery of an object in his jacket pocket. Officer Holes asked if she could look into Holmes's pocket, and he agreed. As Officer Holes began to reach inside Holmes's pocket, he told her the object was a magazine for a handgun. She asked where the rest of the weapon was, and Holmes said it was at his home. Officer Holes then placed Holmes in the back seat of the squad car and walked over to search Holmes's automobile. By that time the parking monitor had already completed her inventory search of the vehicle.

According to the University's policy, before towing, the "interiors and secured areas" of all vehicles to be impounded will be searched "by the officers ordering the vehicle towed." The parking monitor did her inventory search by walking around the vehicle and looking into the windows, in accordance with her normal practice. However, Officer Holes's search was more thorough. She opened the vehicle and found an unsecured gun case in the rear passenger compartment. She then unlocked the glove compartment and found a .40-caliber Ruger handgun. After the search, Officer Holes walked to the squad car and told Holmes about the gun she found in his vehicle. Holmes responded he had forgotten putting the gun in the glove compartment and that he had put it there temporarily for safekeeping. After Holmes acknowledged ownership of the gun, he was placed under arrest for carrying a gun without a permit. Examination of the handgun showed there was no bullet in the chamber, but it contained a magazine with hollow point bullets.

Holmes was charged with carrying a pistol without a permit in violation of Minn. Stat. § 624.714, subd. 1 (1994). At the pretrial evidentiary hearing, Holmes moved to suppress evidence and to dismiss the charge pursuant to rules 10 and 11.03 of the Minnesota Rules of Criminal Procedure. The district court granted the motion, concluding that (1) the search of Holmes's vehicle by Officer Holes was unlawful and all evidence seized should be suppressed, (2) Officer Holes's interrogation of Holmes without a Miranda warning violated Holmes's constitutional rights and Holmes's admission he owned the gun should therefore be suppressed, and (3) the charge against Holmes should be dismissed for lack of evidence. Nonetheless, the district court also held that Holmes failed to meet his burden in proving his gun was "unloaded, contained in a closed and fastened case, gunbox, or securely tied package" and thereby within an exception to the statute.

D E C I S I O N

In a pretrial appeal, the court will reverse the determination of the district court "only if the state demonstrates clearly and unequivocally, first, that the [district] court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial." State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987). Critical impact exists when the suppression order seriously impedes continuation of the prosecution. Id. at 551. The critical impact element is met here because the district court dismissed the charge against Holmes for lack of evidence after suppressing all evidence against him. This court must therefore determine whether the district court clearly erred.

The state did not expressly challenge the district court's factual findings. However, the state's statement of facts is inconsistent with some of the district court's findings. Findings of fact by a district court shall not be set aside unless they are clearly erroneous. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, ___ U.S. ___, 113 S. Ct. 2130 (1993). We conclude from a review of the record that the district court's findings of fact are not clearly erroneous.

I.

To stop a person lawfully for questioning, a police officer must be able to point to specific and articulable facts that, together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Engholm, 290 N.W.2d 780, 783 (Minn. 1980).

Holmes parked his vehicle in a University contract parking lot without a permit. There were seven outstanding warrants against the vehicle. The parking monitor had reasonable suspicion to stop Holmes to investigate the current violation and the outstanding warrants when Holmes and his friend returned to the vehicle. Therefore, Officer Holes also had reasonable suspicion to stop Holmes when she was called on to assist at the scene.

An officer may frisk a person if there is reason to believe, based on articulable suspicion, that the suspect is armed and dangerous. Terry, 392 U.S. at 24, 88 S. Ct. at 1883. The officer need not be absolutely certain the individual is armed; the issue is whether reasonably prudent persons in the circumstances would be warranted in the belief their safety or that of others was in danger. Id. at 27, 88 S. Ct. at 1883; State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980).

The district court found that the pat-down search of Holmes by Officer Holes was unjustified. The soundness of the district court's determination turns on whether Officer Holes's concern for her safety was reasonable when Holmes put his hands into his pockets a second time after being told not to do so. The district court found Holmes first put his hands into his pockets for warmth and the second time did so to locate his temporary driver's license in order to give it to Officer Holes. The court thus concluded Officer Holes had no reasonable basis to suspect that Holmes was reaching into his pockets for a weapon. We disagree.

In State v. Gannaway, 291 Minn. 391, 191 N.W.2d 555 (1971), the defendant was stopped for driving the wrong way on a one-way street. At the officer's request, the defendant produced his driver's license and then got out of his car. The officer warned defendant to keep his hands out of his pockets, but the defendant nonetheless reached into the right pocket of his outer coat. Believing the defendant might be armed, the officer frisked his outer coat. The court held that the officer had "reasonable cause to initiate a protective frisk for weapons." Id. at 393, 191 N.W.2d at 557.

Here, like the officer in Gannaway, Officer Holes had a reasonable basis to believe that Holmes might be reaching for a weapon when he put his hands into his pockets after being told not to do so. The district court should have determined the issue based on objective facts observable to the officer, not on Holmes's later explanation of his actions. See Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (search or seizure must be founded upon some objective justification, including a "reasonable suspicion" based on the officer's experience that suspect may be armed); State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983) (applying the "objective theory" of probable cause to investigative stops). Because we hold that Officer Holes's suspicion that Holmes might be reaching for a weapon was reasonable, the magazine found on Holmes and Holmes's statement identifying it were improperly suppressed.

II.

A "full and effective warning" of constitutional rights is required if an individual is in custody when interrogated. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The test is whether a reasonable person in the detainee's position would believe he or she was in custody. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984). Holmes testified that he did not feel free to leave when Officer Holes ordered him to go to the squad car and placed him inside. We conclude that a reasonable person in Holmes's position would not have believed he was in custody.

In State v. Herem, 384 N.W.2d 880 (Minn. 1986), the supreme court held that

simply requiring defendant to sit in a police car for a short time * * * did not take the situation beyond the realm of an ordinary traffic stop.

Id. at 883; accord State v. Moffatt, 450 N.W.2d 116, 120 (Minn. 1990) (holding that placing men in squad cars did not turn detention into de facto arrest). Here, Officer Holes testified that she told Holmes to go to the squad car as a safety precaution. Holmes was held under a limited investigative detention allowed by Terry, 392 U.S. at 21, 88 S. Ct. at 1880.

In a recent case, the supreme court held that a defendant was in custody when he was patted down and placed in the squad car during a routine traffic stop. In so holding, the court stated:

A person in petitioner's position would reasonably conclude that since the officer had probable cause to arrest him for speeding and driving after revocation, since the officer had patted him down and placed him in the locked back seat of the squad car, and since the officer told him he was going to impound the car and tow it, he must be "under arrest."

State v. Malik, 552 N.W.2d 730, 731 (Minn. 1996). This case is different from Malik in an important aspect, warranting a contrary conclusion. In Malik, the defendant was suspected of speeding and driving after revocation, giving the officer probable cause to arrest him. Here, however, Holmes was being investigated for parking violations. At no time did the parking monitor or Officer Holes indicate that Holmes would be arrested for those violations. The legal consequence of those violations was a "white tag" tow of the vehicle, according to University policy. The parking monitor indeed ordered a "white tag" tow and so informed Holmes the moment he returned to his vehicle. Holmes knew he was not to be arrested for those violations, as evidenced by his offer to pay the tickets the next day. Therefore, a reasonable person in Holmes's position would not have believed he was in custody when Officer Holes placed him in the squad car. Because we conclude Holmes was not in custody when he was questioned in the squad car, no Miranda warning was required. Consequently, Holmes's statement acknowledging ownership of the handgun was improperly suppressed.

III.

The police may make a warrantless inventory search of a properly impounded motor vehicle, even though they have no particular suspicion or probable cause to believe that the vehicle contains anything they have a right to seize. South Dakota v. Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 3100 (1976); City of St. Paul v. Myles, 298 Minn. 298, 300, 218 N.W.2d 697, 699 (1974). Such searches are reasonable under the Fourth Amendment both because of the diminished expectation of privacy in an automobile as compared with that of a home and because the searches serve to protect the owner's property while it is in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from danger. Opperman, 428 U.S. at 369, 96 S. Ct. at 3097.

The district court found the inventory search of Holmes's vehicle by Officer Holes was not done according to the University's policy, exceeded the scope of an inventory search, and was done solely for the purpose of investigation.

The University policy manual provides that the "interiors and secured areas" of all impounded vehicles will be searched before towing by "the officers ordering the vehicle towed." The district court concluded that the University policy manual only authorized the parking monitor to search the vehicle. We disagree. The University policy manual does not prohibit officers called to assist from searching vehicles to be towed. Therefore, when Officer Holes was called on to assist, she had authority to search Holmes's vehicle.

The district court concluded that "the interiors and secured areas" of a vehicle, within the meaning of the University policy manual, do not include the glove compartment. We disagree. Additionally, both the United States Supreme Court and the Minnesota Supreme Court have upheld the search of a glove compartment as part of an inventory search. Opperman, 428 U.S. at 372, 96 S. Ct. at 3098 (noting standard inventory searches often include an examination of the glove compartment); Myles, 298 Minn. at 299, 218 N.W.2d at 698.

Further, the district court concluded that a locked glove compartment merits more protection from police search than an unlocked glove compartment does. The United States Supreme Court in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738 (1987), upheld a vehicle inventory search where the officer opened a closed backpack. The Court stated when a legitimate search is under way, according to standard police procedure, the police need not distinguish among "glove compartments, upholstered seats, trunks, and wrapped packages," in the interest of prompt and efficient completion of the task at hand. Id. at 375, 107 S. Ct. 743 (citation omitted). Based on Bertine, the search of a locked glove compartment as part of an inventory search is valid.

Finally, the district court concluded that Officer Holes's search of Holmes's vehicle was unlawful because it was done solely for the purpose of investigation. However, an inventory search is valid if it is carried out in accordance with standard police department procedures, and it makes no difference whether the officer had an ulterior motive or expected to discover evidence. Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978); State v. Rodewald, 376 N.W.2d 416, 421 (Minn. 1985). The district court suggests Bertine, 479 U.S. at 372, 107 S. Ct. at 741, and State v. Ailport, 413 N.W.2d 140, 146 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987), stand for the proposition that an officer's improper motive invalidates an otherwise valid inventory search. We disagree. Bertine and Ailport did not establish a new rule declaring otherwise valid inventory searches to be invalid if the officer searched the vehicle with investigative purposes in mind. We find that Officer Holes's inventory search of Holmes's vehicle was valid.

IV.

Under Minnesota law, a person may not carry, hold, or possess a pistol in a motor vehicle, snowmobile, or boat, or on or about the person's clothes or the person, without a permit. Minn. Stat. § 624.714, subd. 1 (1994). There are several exceptions: For example, a permit to carry is not required for a person transporting a pistol in a motor vehicle if the pistol is "unloaded, contained in a closed and fastened case, gunbox, or securely tied package." Minn. Stat. § 624.714, subd.9(e). By notice of review, Holmes contends the district court clearly erred in holding that Holmes had the burden of proving he meets the requirements of the section 624.714, subdivision 9(e) exception. We disagree.

Under the law, the state had the burden of proving that Holmes carried, held, or possessed a pistol in a motor vehicle, and Holmes had the burden of showing that his pistol was "unloaded, contained in a closed and fastened case, gunbox, or securely tied package." Minn. Stat. § 624.714, subds. 1, 9(e); see State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (holding that defendant had burden of going forth with evidence that he was within pistol permit exception for traveling between dwelling and place of business). Therefore, the district court correctly placed the burden on Holmes to prove his pistol was "unloaded, contained in a closed and fastened case, gunbox, or securely tied package."

David A. Lindman, a weapons forensics expert who testified for Holmes, stated at the evidentiary hearing that a semiautomatic pistol such as Holmes's is not "loaded" when the slide is fully forward and there is no cartridge in the chamber, even though he also testified that it takes a second or less to load the chamber by pulling back the slide. Holmes contends the district court erred in relying on Minnesota's game, fish, and hunting statute in interpreting "unloaded" and in finding Holmes's pistol was loaded. We disagree. Because section 624.714 does not define "unloaded," the district court properly relied on the definition of the term in Minn. Stat. § 97B.045, subd. 1(1) (1994), the game, fish, and hunting statute. Both that statute and the gun permit statute were designed to protect the public. The language of the game, fish, and hunting statute is very similar to that of the gun permit statute and provides:

[a] person may not transport a firearm in a motor vehicle unless the firearm is:

(1) unloaded and in a gun case expressly made to contain a firearm, and the case fully encloses the firearm by being zipped, snapped, buckled, tied, or otherwise fastened, and without any portion of the firearm exposed.

Minn. Stat. § 97B.045, subd. 1(1). There is no basis to conclude that the term "unloaded" means something different in the context of section 624.714. Under the game, fish, and hunting laws, "unloaded" means "without ammunition in the barrels and magazine, if the magazine is in the firearm." Minn. Stat. § 97A.015, subd. 51 (1994). Holmes's semiautomatic pistol had no bullet in its chamber; however, a magazine containing hollow point bullets was in the pistol. Within the meaning of section 97A.015, subdivision 51, Holmes's pistol was loaded. The district court rightly rejected the testimony offered by Holmes's weapons forensics expert.

Holmes failed to prove his pistol was unloaded; it is therefore unnecessary to determine whether the pistol was properly contained. The district court correctly concluded that Holmes did not demonstrate he was within the section 624.714, subdivision 9(e) exception.

Because we conclude that the gun magazine found on Holmes's person, the gun and gun case found in the vehicle, and Holmes's acknowledgment of ownership of the gun were improperly suppressed, and that Holmes failed to prove his pistol was unloaded, the case is remanded for trial.

Affirmed in part, reversed in part, and remanded.