This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2414

State of Minnesota,

Respondent,

vs.

Shane Alan Borders,

Appellant.

Filed July 15, 1997

Affirmed

Peterson, Judge

Cass County District Court

File No. K195967

Hubert H. Humphrey, III, Attorney General, W. Karl Hansen, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, Minnesota 55101 (for Respondent)

Earl E. Maus, Cass County Attorney, Courthouse, P.O. Box 3000, Walker, Minnesota 56484 (for Respondent)

John M. Stuart, State Public Defender, Patricia Rettler, Special Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Schultz, Judge.[*]

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

PETERSON, Judge

On appeal from his conviction for fifth-degree controlled substance crime, Shane Borders argues the warrantless search of his car violated the Fourth Amendment. We affirm.

FACTS

Appellant Shane Borders was at a bar when he was arrested on an outstanding warrant. Borders told the arresting officers that a friend had driven him to the bar in Borders's car. Borders asked the officers to take his keys and give them to the friend so the friend would have a ride home. After transferring Borders to county authorities, the arresting officers returned to the bar to try to find Borders's friend.

By the time the officers reached the bar, it was 1:30 a.m., and few people were there. The officers had the friend paged, but no one came forward and the officers could not find the friend. At about 2:00 or 2:30 a.m., at the bar manager's request, the officers called a tow truck to remove Borders's car. The officers stood by the car for about an hour waiting for the tow truck. During that time, no one approached them or the car.

When the tow truck arrived, Officer Andy Skinner unlocked the driver's side door to shift the car into neutral for towing. Skinner explained at the omnibus hearing that another car was parked in front of Borders's car. Therefore, Borders's car had to be put into neutral so that it could be rolled back and put into position for the tow truck. Skinner believed that if the car had been dragged out backwards without putting it into neutral, it might have been damaged.

When Skinner opened the car door, the interior was well lit because the parking lot lights were on and the dome light came on. Skinner immediately saw on the floor between the driver and passenger seats a clear film canister that contained a green-colored, rough, leafy substance. Based on his observations and his life and work experiences, Skinner believed the substance in the canister was marijuana. Skinner reached over to open the passenger door for the other officer. Skinner took the canister out of the car, and the other officer opened it, smelled the contents, and also believed it was marijuana. Near the film canister, the officers saw a neatly folded, square piece of paper that contained a substance that later was proven to be methamphetamine. The officers also found in the car's passenger compartment a clear sandwich bag that contained a substance similar to what was in the film canister. The officers took all three containers. Testing later confirmed that the substances in the film canister and the bag were marijuana.

D E C I S I O N

"Warrantless searches are unreasonable under the fourth amendment, subject to only a few exceptions." State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992).

The "plain view" [exception] allows police, once lawfully in a position to see incriminatory evidence, to seize that evidence if its incriminating nature is "immediately apparent." E.g., State v. DeWald, 463 N.W.2d 741, 747 (Minn. 1990). It is no longer necessary that the discovery of the item in plain view be "inadvertent." Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 2310 * * * (1990).

State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993).

Borders argues the plain view exception does not apply here because the officers were not lawfully in his car when they saw the film canister. But impoundment of a vehicle is proper "when the owner or occupant of a parking area has requested that a vehicle be removed from that area." 3 Wayne R. LaFave, Search and Seizure § 7.3(d), at 531 & n.96 (3d ed. 1996). Here, the bar manager asked the officers to remove Borders's car from the bar parking lot; therefore, the impoundment was proper.

Opening the car door and putting the keys in the ignition were measures taken to protect the car during the impoundment. Therefore, Skinner was lawfully in Borders's car when he saw the film canister. See Harris v. United States, 390 U.S. 234, 235-36, 88 S. Ct. 992, 993 (1968) (officer who opened door of impounded car to roll up window and lock door was taking measures to protect car in police custody and had a right to be in that position; therefore, evidence discovered on metal stripping over which door closed was admissible under plain view exception); see also South Dakota v. Opperman, 428 U.S. 364, 373, 96 S. Ct. 3092, 3099 (1976) (Court consistently has sustained police intrusions into cars lawfully in police custody where process was aimed at protecting car and contents).

Although the officers could have contacted Borders at the jail to ask what he wanted done with his car, their failure to do so does not make the impoundment unlawful. See Colorado v. Bertine, 479 U.S. 367, 373-74, 107 S. Ct. 738, 742 (1987) (although police could have given defendant opportunity to make other arrangements for car's safekeeping, failure to do so did not invalidate impoundment or resulting inventory search).

Borders argues that even if the officers were lawfully in his car, there was no nexus between the film canister and a crime and the plain view exception therefore does not apply. All that is required for the incriminating nature of an item to be immediately apparent "is that the officer have probable cause to believe the item is of an incriminating nature." Lembke, 509 N.W.2d at 184. An officer can rely on training and observations drawn from his experience to form suspicions that might escape a lay person. State v. Skoog, 351 N.W.2d 380, 381 (Minn. App. 1984). Skinner's visual observations of the green, rough, leafy substance inside the canister, coupled with his experience, gave him probable cause to believe that the substance in the canister was of an incriminating nature. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (officer who shined flashlight through car window and saw suspected marijuana on seat had probable cause to believe search of car would reveal marijuana).

Because the marijuana in the film canister was in plain view, it justified the warrantless search of the rest of the passenger compartment under the motor vehicle exception to the warrant requirement. See State v. Studdard, 352 N.W.2d 413, 415 (Minn. 1984) (observation of contraband in plain view justified search of entire passenger compartment pursuant to motor vehicle exception to warrant requirement); State v. Schinzing, 342 N.W.2d 105, 110 (Minn. 1983) (discovery of marijuana in car gave officer probable cause to believe he would find marijuana elsewhere in the car and justified search of any place in car where officer might reasonably expect to find more marijuana). Accordingly, the district court properly denied Borders's motion to suppress the evidence found in his car.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.