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,
Ofiong Louis Sanders,
Filed December 29, 1998
Ramsey County District Court
File No. K3971762
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Sherri D. Hawley, John H. Alme, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.
Appellant Ofiong Louis Sanders challenges his conviction for first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996). We conclude the district court did not err in refusing to suppress identification testimony and evidence obtained during an automobile stop, and Sanders has not established that he was denied effective assistance of counsel at trial. We affirm.
Two residents of a Roseville apartment building observed a prowler. One resident encountered the prowler in his living room and immediately called 911 and described the intruder. The other resident saw the prowler on her balcony and called police. While on the phone, she saw and described a person running across the lawn. Responding police stopped Sanders in his vehicle after he ran a stop sign at an intersection near the apartment building, noting that he and his clothing matched the descriptions given by the residents. The police searched the vehicle and found a damp, knit hat in the glove compartment. At the scene of the vehicle stop, both residents identified Sanders as the intruder. The police placed Sanders under arrest.
The district court concluded that the stop was legally permissible and the identification procedures were proper. The court declined to suppress evidence seized as a result of the stop or to exclude identification testimony.
1. Sanders argues evidence obtained during the stop and subsequent search of his vehicle should have been suppressed. In reviewing the denial of a suppression motion, this court will not disturb the trial court's findings of fact unless they are clearly erroneous. State v. Stephenson, 310 Minn. 229, 231, 245 N.W.2d 621, 623 (Minn. 1976). Where the facts are not in dispute, this court "may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
In accordance with the Fourth Amendment, a police officer may not stop a vehicle without a reasonable basis for doing so. In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). A stop is lawful if the officer articulates a particularized and objective basis for suspecting the occupant of criminal activity. Id. Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Here, Sanders's failure to obey the stop sign provided the police with an adequate basis for the stop.
Sanders further contends that the warrantless search of his automobile was not supported by probable cause. Sanders's motion to suppress did not challenge the legality of the search. This court will not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Even if we were to consider the issue, the totality of the circumstances, including the officer's observation of furtive gestures toward the passenger area, consistent with an attempt to hide something, and the damp clothing inconsistent with statements made by Sanders justified the search of the glove compartment. See State v. Search, 472 N.W.2d 850, 852 (Minn. 1991) (automobile exception to warrant requirement applies if police have probable cause to believe search will result in discovery of evidence of criminal activity); State v. Gallagher, 275 N.W.2d 803, 807-08 (Minn. 1979) (furtive gestures, coupled with other factors, properly considered in evaluating probable cause to search automobile without warrant).
2. Sanders argues that identification testimony was unreliable and should have been suppressed. A reviewing court must determine whether the identification procedures used were so impermissibly suggestive as to create a "very substantial likelihood of irreparable misidentification." State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979). The district court's findings on the likelihood of misidentification, based on the totality of circumstances, will not be set aside unless clearly erroneous. State v. Kowski, 423 N.W.2d 706, 708 (Minn. App. 1988).
Identification evidence based on a "show-up" is admissible unless there is substantial likelihood of misidentification. McDuffie v. State, 482 N.W.2d 234, 236 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). The factors considered by the court in determining the likelihood of misidentification are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Id. An identification by an alleged victim while the matter is fresh and free of other influences is in the public interest of efficient law enforcement. State v. Carey, 296 Minn. 214, 219, 207 N.W.2d 529, 532 (1973).
Both residents had adequate opportunity to attentively view the prowler. The descriptions by both were consistent with the clothing worn by Sanders. Both residents made positive identifications of Sanders within minutes after they observed the prowler. The trial court did not err in refusing to suppress identification testimony.
3. Sanders argues for the first time on appeal that he was denied effective assistance of counsel because his attorney did not present expert testimony about inter-racial identifications. The appropriate way to challenge ineffective assistance of counsel is to seek a postconviction hearing and then appeal the postconviction order. Fratzke v. State, 450 N.W.2d 101, 102 n.3 (Minn. 1990). A postconviction hearing develops a record to afford proper review of "why defense counsel did or did not do certain things." State v Zernechel, 304 N.W.2d 365, 367 (Minn. 1981).
To prevail on an ineffective assistance of counsel claim, Sanders must prove that (1) the attorney's representation fell below an objective standard of reasonableness, and that, (2) but for the attorney's errors, the result would have been different. Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998), cert. denied, 118 S. Ct. 2351 (1998). There is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance. Id. Decisions about which witnesses to call lie within the discretion of counsel and should not be reviewed by an appellate court that, unlike counsel, has the benefit of hindsight. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). On the record before us, Sanders has not established that the representation was inadequate.