This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Raphael Angel Cabrera,


Filed August 31, 1999


Harten, Judge

Benton County District Court

File No. K1-98-825

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Michael S. Jesse, Benton County Attorney, Kirsta J. Majerus, Assistant County Attorney, Court's Facility, P.O. Box 129, Foley, MN 56329 (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 Crippen, Presiding Judge, Short, Judge, and Harten, Judge.



Appellant Rafael Angel Cabrera challenges his conviction, arguing that he was subjected to an unconstitutional stop and frisk. We affirm.


On June 17, 1998, at approximately 7:40 a.m., Officer James Steve observed a white Cadillac travelling around 40 mph in a 30 mph speed zone. The officer activated his red lights and stopped the Cadillac. The driver produced a Minnesota picture driver's license indicating that he was Cassidy Dean Strong. When Steve asked Strong if he had car insurance, Strong indicated that the car belonged to the passenger, appellant Rafael Angel Cabrera. Cabrera initially identified himself to Steve as Ivan Burgos. Steve observed that Cabrera had bloodshot, watering, glassy eyes and slurred speech.

Steve returned to his squad car and determined that Strong had a valid Minnesota driver's license. He also discovered that there was no "Ivan Burgos" on file with the Bureau of Criminal Apprehension (BCA). Finally, he determined that the Cadillac belonged to Isaac Carpenter, an individual Steve knew was neither Strong nor Cabrera. After Steve informed him that the name "Ivan Burgos" was not in the BCA database, Cabrera told Steve to check Wisconsin records. When Steve asked Cabrera if he had insurance on the vehicle, Cabrera replied that the Cadillac belonged to an individual named Walters and that neither Cabrera nor Strong was the registered owner. At that point, Steve believed that "the passenger was giving me false identification when he told me to try Wisconsin. * * * I thought possibly the vehicle could also be stolen."

Officer Steve asked Cabrera if he would step out of the vehicle and come back to the squad car. Cabrera agreed to do so, and as he exited the Cadillac, "he paused, looked at -- or turned towards the vehicle and looked at [Steve]." As Steve and Cabrera approached the squad car, Steve told Cabrera that he would have to conduct a pat-down search before Cabrera entered the squad car. As he conducted the initial pat down, Steve checked Cabrera's waistline and felt an outline of a gun. Cabrera tried to push himself away and a struggle ensued. Eventually, Steve placed Cabrera in custody and found that Cabrera possessed a loaded Jennings 9-mm firearm.

Cabrera was charged with carrying a concealed weapon without a license and obstructing legal process. After the district court denied his motion to suppress, Cabrera entered a Lothenbach plea, explicitly reserving his right to appeal the district court's ruling.


A district court's factual determinations are given great deference. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). On review of a pretrial order suppressing evidence, if no facts are in dispute and the district court's decision is a question of law, this court may independently review facts to determine if, as a matter of law, the evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The Fourth Amendment prohibits law enforcement officers from searching an individual without a warrant, "'subject only to a few specifically established and well-delineated exceptions.'" State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). When an officer (1) has reasonable, articulable suspicion of criminal activity and (2) reasonably believes that the suspect may be armed and dangerous, the officer may conduct a limited search of the suspect's outer clothing to discover weapons that could be used to assault the officer. Dickerson, 481 N.W.2d at 843 (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)). The officer's determination is made "in light of his or her experience that criminal activity may be afoot." In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997).

In the instant case, the only issue is whether the officer's pat-down search of Cabrera was based on the reasonable suspicion that Cabrera was involved in criminal activity and that he could be armed and dangerous. Cabrera first fell under suspicion by falsely claiming ownership of the Cadillac. Then Cabrera identified himself as "Ivan Burgos," a name that Steve could not locate in the BCA database. As Steve testified at the suppression hearing, these false claims led him to believe that Cabrera was providing false identification, and may have stolen the Cadillac.

Other factors also contributed to the officer's suspicion. When Steve approached the car, he observed that Cabrera had bloodshot, watering, glassy eyes and that he slurred his speech. Finally, when Cabrera exited the Cadillac, Steve noted that Cabrera "paused, looked at -- or turned towards the vehicle and looked at me." At the suppression hearing, Steve stated that "[i]t wasn't just a quick glance, it was a pause" and that he believed Cabrera "was contemplating or thinking about something." The totality of these factors led Steve reasonably to believe that Cabrera was engaged in criminal activity and that he may have been armed and dangerous. See State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971) (stating that warrantless pat-down search may be justified if the officer has a "valid reason to believe the motorist is engaged in the commission of a more serious crime"); see also 4 W. LaFave, Search and Seizure, § 9.5(a), at 254-55 (3rd ed. 1996) (noting that right to frisk has been viewed as automatic, "whenever the suspect has been stopped * * * [for] a type of crime for which the offender would likely be armed").

The facts of this case are distinguishable from the facts of Varnado, the principal case upon which Cabrera relies. There, the supreme court stated that frisk of a suspect was unlawful because it was based merely on the suspect's lack of proper identification, her presence in a high-crime area and her association with a suspected drug dealer. Varnado, 582 N.W.2d at 890. Under such circumstances, the court stated that the officers had no reasonable basis to suspect that Varnado was armed and dangerous. Id. Here, the officer based his decision to frisk Cabrera on more than just his false identification. Officer Steve personally observed Cabrera's intoxicated appearance, his false statements about his identity and the Cadillac's ownership, and his suspicious pause after exiting the car. Because these factors led the officer to reasonably believe that Cabrera was engaged in criminal activity and that he may have been armed and dangerous, we affirm the district court's denial of Cabrera's motion to suppress.