may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Mark Jeffrey Hoppe,
Filed February 11, 1997
Ramsey County District Court
File No. K9-95-837
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Huspeni, Presiding Judge, Lansing, Judge, and Foley, Judge.[*]
Appellant argues that the police lacked articulable suspicion to stop the cab in which appellant was riding and that, because the police officer did not fear for his safety, the search of appellant was unconstitutional. Because we find no error in the trial court's rulings, we affirm.
As the officers kept watch, several people stopped at the house, went in for a couple of minutes, and then left. The officers observed a cab stop and park in the street in front of the house. A St. Paul ordinance makes such stops illegal. A female emerged from the back seat of the cab, went inside the house, stayed approximately two to three minutes, and returned to the cab, which then drove down the street in front of the officers' squad car. Drutschmann recognized the female in the cab as Charlotte Brown, a woman who Drutschmann believed was a drug user. In addition to Brown, Drutschmann saw an older white male sitting in the back seat on the driver's side.
The officers stopped the cab and asked both occupants to get out. Brown consented to a search and Drutschmann found a piece of crack cocaine in her pocket. Brown later pleaded guilty to possession of cocaine.
Meanwhile, the officers identified the male in the cab as appellant Mark Jeffrey Hoppe. Drutschmann testified that during her search of Brown, she observed appellant drop something on the ground. Cherrey later picked up the object, and testing confirmed that the object was crack cocaine.
Appellant was charged with fifth-degree possession of cocaine in violation of Minn. Stat. §§ 152.025, subds. 2(1), 3(a), 609.05 (1994). The trial court denied appellant's motion to suppress the crack cocaine allegedly dropped by him during his arrest. The jury found appellant guilty of possession of cocaine in the fifth degree.
The police may stop a motor vehicle if they have specific and articulable facts establishing a reasonable suspicion of a motor vehicle violation or criminal activity. State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968) (police may stop person if they have reasonable suspicion that person might be engaged in criminal activity).
In this case, the officers watched the cab make an illegal stop in the middle of the road. Appellant does not dispute the illegality of the cab's parking, but argues that stopping the cab for the traffic violation was an illegal, fabricated pretext for stopping and searching appellant. We disagree. A fabricated pretext does not exist
if there is an objective legal basis for an arrest or search, the arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.
State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991). The officers' stop of the cab was justified based on the cab's violation of the St. Paul traffic ordinance. Cf. State v. George, ___ N.W.2d ___, ___ (Minn. Jan. 16, 1997) (vacating defendant's conviction because there was no objective legal basis for the officer to reasonably suspect that defendant was operating his motorcycle illegally). Moreover, regardless of the officers' subjective intent, the stop was legal. Id.; see also Whren v. United States, ___ U.S. ___, ___, 116 S. Ct. 1769, 1774 (1996) (officer's ulterior motives do not invalidate a stop which is legally justified).
Appellant argues further that in order for the stop of the cab to be valid, the officers should have questioned the driver or cited him for an illegal traffic stop. Again, we disagree, and find appellant's reliance on State v. Pleas, 329 N.W.2d 329 (Minn. 1983), and State v. Hiler, 376 N.W.2d 760 (Minn. App. 1985), to be misplaced. Neither case requires the driver of a vehicle to be cited or even contacted for the traffic violation. Moreover, neither Pleas nor Hiler involved a passenger; instead the driver in those cases was involved not only with the motor vehicle violation, but also with the criminal activities at issue. In this case the driver, while responsible for the traffic violation, had nothing to do with the narcotics activity. The officers' failure to cite the driver of the cab does not taint the legitimacy of this stop. The officers could have cited, but were not required to cite, the driver for a traffic violation; therefore, the stop was legal. Everett, 472 N.W.2d at 867.
As a basis for the stop of the cab independent of the traffic violation, the trial court found reasonable suspicion based on: (1) a tip from a confidential, reliable informant that drug dealing was taking place at the house; (2) the officers' observations of the house in corroboration of the tip; (3) the officers' belief that activities at the house indicated drug dealing; and (4) Drutschmann's experience with over 200 drug-related arrests. The officers observed people going in and out of a residence they believed to be a known crack house. They watched Brown enter the house at 1:00 a.m. and exit a few minutes later. The officers had reason to believe that Brown was a drug purchaser. In addition they received a tip from a confidential, reliable informant that drug dealing was occurring at the house. Based on this, the officers reasonably believed Brown had violated a narcotics law. We agree with the trial court that these specific and articulable facts created reasonable suspicion that a narcotics law had been violated. See Terry, 392 U.S. at 30, 88 S. Ct. at 1884. This stop clearly was not a "product of whim, caprice, or idle curiosity." See State v. Combs, 398 N.W.2d 563, 566 (Minn. 1987).
2. Was the search of appellant lawful?
Appellant argues that the officers' search of him was illegal. However, we conclude that appellant failed to raise this issue before the trial court. Therefore, he must be deemed to have waived his right to raise the issue on appeal. State v. Schumann, 280 Minn. 48, 50, 157 N.W.2d 758, 759 (1968).
Appellant's motion to suppress evidence stated:
The defendant moves the Court to suppress the crack cocaine allegedly dropped by him during his arrest because there was no probable cause to stop the vehicle that defendant was riding in. There were no traffic violations committed by the driver of the vehicle, nor was there sufficient probable cause to believe that a crime had been committed by the defendant.
While appellant contends that both the stop and the search were raised at the trial court level, we believe that the specificity required in raising an issue regarding violation of a constitutional right was missing. See State v. Odenbrett, 349 N.W.2d 265, 269 (Minn. 1984) (claim must be raised explicitly at the trial court level to be preserved for appeal). In Odenbrett the supreme court refused to address the issue of a constitutional right to privacy on appeal because, although the appellant had raised general Fifth Amendment violations at the trial court level, the appellant had not specifically asserted a constitutional right to privacy.
During the pretrial hearing, appellant addressed the question of the search only by recognizing that, in fact, a search had occurred. He did not establish whether he was searched before or after or contemporaneously with Brown; nor does the record reflect any discussion of whether the officers searched appellant because they felt he had dangerous propensities. Neither at the pretrial hearing nor in the motion to suppress did appellant specifically challenge the officers' search of him. We are unable to review this issue because it was not raised adequately in the trial court. Schumann, 280 Minn. at 50, 157 N.W.2d at 759.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1 Appellant argues that the informant was unreliable. At trial, however, appellant neither objected to the informant nor challenged the informant as unreliable. Arguments made for the first time on appeal will not be considered. State v. Packard, 366 N.W.2d 721, 726 (Minn. App. 1986), review denied (Minn. July 17, 1985).