This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Edward Anthony Ebacher,


Filed May 25, 1999


Davies, Judge

Benton County District Court

File No. K897598

Michael S. Jesse, Benton County Attorney, Robert J. Raupp, Assistant County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.



Appellant challenges the trial court's order denying his motion to suppress evidence of a loaded handgun found in appellant's possession. We affirm.


On May 16, 1997, a caller notified St. Cloud police that appellant Edward Anthony Ebacher had threatened to kill appellant's former girlfriend's son and dog. The caller also said that appellant had a small handgun.

En route to investigate the call, Officer Troy Larson saw appellant standing at a bus stop. The officer asked appellant about the threats, but appellant denied making them. The officer also asked appellant if he had a small gun. Appellant responded, "No, but I do have a large one in my bag." When asked if he had a gun permit, appellant replied that he had the Second Amendment. Officer Larson searched appellant's bag and found a loaded 9mm semi-automatic handgun with the serial number filed off. Appellant was arrested and charged with possessing a firearm with the serial number removed and with carrying a weapon without a permit.

At the omnibus hearing, appellant moved to suppress the evidence obtained in the search of his bag. Appellant also challenged the constitutionality of the statutes under which he had been charged on the ground that the statutes violated his Second Amendment right to keep and bear arms. The trial court denied appellant's motions, ruling that the search of appellant's bag was a valid search incident to arrest and that the statutes were constitutional.

Appellant waived a jury trial, and the case was submitted to the court on stipulated facts. The court found appellant guilty of possessing a firearm with the serial number removed. He was sentenced to a 12-month stayed sentence and this appeal followed.


On undisputed facts, a trial court's pretrial ruling on suppression of evidence is reviewed de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). A trial court's determination of probable cause relating to warrantless searches is also reviewed de novo. In re Welfare of G. (NMN) M., a/k/a W.M., 560 N.W.2d 687, 690 (Minn. 1997).

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const. Amend. IV; see also Minn. Const. Art. I, § 10 (prohibiting unreasonable searches and seizures). A search is presumed to be unreasonable when it is conducted outside the judicial process, without prior permission of a judge or magistrate. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971); see also State v. Hoven, 269 N.W.2d 849, 853 (Minn. 1978) (search is reasonable only if conducted with valid search warrant or search fits recognized exception).

One exception to the bar against warrantless searches is a search conducted incident to a custodial arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973). Such a search of the person and immediate surroundings is justified by the need to remove weapons and prevent destruction of evidence. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969).

A search conducted before an arrest is valid only if (1) the search is substantially contemporaneous with the arrest and (2) there is probable cause to arrest before the search is begun. State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992). Probable cause to arrest must exist before the search and cannot be provided by the search itself. Smith v. Ohio, 494 U.S. 541, 543, 110 S. Ct. 1288, 1290 (1990).

Both conditions are met here. The search was substantially contemporaneous with the arrest in that the arrest followed immediately after the completion of the search. As to probable cause to arrest:

Probable cause exists if the objective facts indicate that "a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime had been committed."

Cornell, 491 N.W.2d at 671 (quoting State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982)). Before searching appellant's bag, Officer Larson had received a police report that appellant had a handgun in his possession and had threatened to kill an individual and a dog. Appellant himself told the officer that he had a large handgun in his bag and that his permission to carry the gun was, not a permit, but rather, the Second Amendment. On these facts, Officer Larson had probable cause to believe that appellant possessed a handgun without a permit, a violation of Minn. Stat. § 624.714, subd. 1(a) (1996) (a gross misdemeanor offense).

Finally, an officer may conduct a warrantless search incident-to-arrest "of an arrestee's pockets, wallet and other containers immediately associated with the person of the arrestee." State v. Rodewald, 376 N.W.2d 416, 417 (Minn. 1985). Here, the bag on appellant's shoulder was "immediately associated" with appellant, and the warrantless search of the bag was proper.