This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1177

 

State of Minnesota,

Respondent,

 

vs.

 

Matthew Duane Stapleton,

Appellant.

 

Filed ­­­August 16, 2005

Affirmed

Dietzen, Judge

 

Crow Wing County District Court

File No. K2-02-1157

 

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401; and

 

Mike Hatch, Attorney General, Kimberly Ross Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

Timothy T. Mulrooney, Jane E. Rydholm, Special Assistants State Public Defender, Henson & Efron, P.A., 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction of third-degree possession of a controlled substance arguing that the district court erred in denying his motion to suppress evidence obtained from an investigatory stop and search and seizure, and denying his motion for a downward departure in his sentence.  Appellant also argues that his conviction must be reversed because the attorney who represented him at the suppression hearing subsequently appeared for the state at appellant’s motion for a continuance.  Because we conclude that the investigatory stop was supported by reasonable and articulable suspicion and the search and seizure was supported by probable cause; that the appearance of appellant’s former attorney at appellant’s motion for continuance was harmless error; and that the district court did not abuse its discretion in denying appellant’s motion for a downward departure, we affirm. 

FACTS

In the early morning hours of May 9, 2002, Brainerd Police Officer Tim Friis was dispatched to the parking lot of a bar to investigate a report that a male was lying in a mud puddle.  When Friis arrived at the scene, the bar’s owner identified appellant Matthew Stapleton as the person who had been lying in the puddle.  Friis approached Stapleton and observed that he was staggering and appeared to be intoxicated or under the influence of a controlled substance.  Friis asked Stapleton to identify himself and explain his behavior but he received no response.  After some delay, Stapleton removed his wallet and produced identification.  Friis then asked Stapleton if he was carrying narcotics or weapons but again received no response.  Throughout the encounter, Friis observed that Stapleton’s demeanor repeatedly changed from “giggly” to “gruff.”  Stapleton’s evasive conduct, including his refusal to indicate whether he was armed, coupled with his erratic mood changes and “delirious state,” caused Friis to conclude that Stapleton may have been armed and was a potential danger to himself and others. 

            Due to the circumstances, Friis decided to conduct a pat-down search.  During the pat-down, Friis felt a large bulge in Stapleton’s left pocket that he could not immediately identify.  Friis asked Stapleton to remove the bulge from his pocket.  Without responding orally, Stapleton slowly put his hand into his pocket and removed a large amount of cash; at the same time, Friis observed a clear plastic baggie containing a white powder protruding from Stapleton’s pocket.  Friis believed that the baggie contained methamphetamine.  Stapleton stuffed the baggie back into his pocket and began to turn away from Friis, but Friis retrieved the baggie from Stapleton’s pocket and arrested him.  The white powder later tested positive for methamphetamine.

            Stapleton was charged with second-degree possession of a controlled substance under Minn. Stat. § 152.022, subd. 2(1) (2002).  Stapleton, represented by a public defender, moved at an omnibus hearing to suppress the methamphetamine as the fruit of an unlawful search.  The district court denied his motion.  More than three months later, Stapleton, represented by a new public defender, appeared before the district court; Stapleton’s attorney argued for continuances regarding four separate court files pertaining to Stapleton.  The hearing transcript indicates that the attorney who represented Stapleton at the earlier suppression hearing appeared as an assistant county attorney for the state.  However, Stapleton’s former attorney did not note his appearance, make a statement, or contest Stapleton’s motions.  Subsequently, the matter proceeded to trial, and Stapleton was found guilty by a jury.  The district court sentenced Stapleton to the presumptive sentence of 48 months in prison.  This appeal follows.

D E C I S I O N

I.

            Search and Seizure

When the facts are undisputed, this court may independently review them and decide as a matter of law whether the seized evidence should have been suppressed.  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).  The federal and state constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A police officer may perform a warrantless protective pat-down search if, under an objective standard, the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts” serve as grounds for the belief that an individual is armed and dangerous.  Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct. 1868, 1880, 1884 (1968).  An officer is entitled to evaluate the circumstances warranting a pat-down in light of his experience.  Id. at 27, 88 S. Ct. at 1883.  A Terry analysis requires two inquiries: “[W]hether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”  Id. at 20, 88 S. Ct. at 1879. 

Stapleton makes four arguments in support of his motion to suppress.  First, Stapleton argues that, at the inception of the investigatory stop, he was unlawfully seized by Friis.  But Stapleton was not seized for Fourth Amendment purposes when Friis questioned him outside of the bar.  See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (observing that officer may interact with automobile driver sitting alone in deserted parking lot).  If, after an initial stop, an officer engages in conduct that would cause a reasonable person to believe that he was not free to leave, a seizure has occurred, “and the police must be able to articulate reasonable suspicion justifying the seizure, else any evidence that is the fruit of the seizure is suppressible.”  In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  Here, Friis simply responded to a dispatch reporting a male lying in a mud puddle.  We conclude that once Friis arrived at the scene, he had a legitimate basis to question Stapleton, and that doing so did not constitute a seizure. 

Second, Stapleton argues that his mere intoxication, absent knowledge that he was armed, does not give rise to the reasonable and articulable suspicion that would justify a pat-down.  See State v. Lothenbach, 296 N.W.2d 854, 859 (Minn. 1980) (holding that search was illegal because officers were not concerned for their safety and were only searching for drugs); State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (“If the only justification for a search during an investigatory detention is discovery or preservation of contraband, . . . the intrusion is not authorized.”).  The state argues that Friis was justified in conducting the pat-down because he had a reasonable belief that Stapleton might have been armed and dangerous.    

Terry provides that “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”  Terry, 392 U.S. at 27, 88 S. Ct. at 1883.  Here, Stapleton refused to answer most of Friis’s questions, including whether he was carrying a weapon.  Friis testified that Stapleton’s non-responsiveness, and his delirious and incoherent mental state, posed a risk of harm.  Terry and its progeny emphasize that officers may conduct a pat-down search if they legitimately fear for their safety.  Id. at 24, 88 S. Ct. at 1881 (“[I]t would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”); State v. Varnado, 582 N.W.2d 886, 891 (Minn. 1998) (agreeing that “officer safety is a paramount interest”).  We conclude that the totality of circumstances surrounding Stapleton’s evasive conduct provided the necessary reasonable and articulable suspicion to conduct a pat-down.  See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (“We have held that one circumstance giving rise to reasonable suspicion is evasive conduct.”), aff’d sub nom. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993). 

Third, Stapleton argues that it was unlawful for Friis, who identified a large bulge in Stapleton’s front left pocket, to ask Stapleton if he would remove the contents of the pocket, which consisted of a large amount of cash and the plastic baggie.  Stapleton argues that Friis’s request was not based on reasonable and articulable suspicion and that Stapleton’s removal of the items was not voluntary.  We review each of his arguments in turn. 

Friis had additional reasonable and articulable suspicion to request Stapleton to empty his pocket: Friis felt a large bulge in Stapleton’s pocket and was unable to identify it.  A frisking officer may remove an object that potentially may be a weapon but is indiscernible through a suspect’s clothing.  See State v. Bitterman, 304Minn.481, 486, 232 N.W.2d 91, 94 (1975) (“Since weapons are not always of an easily discernible shape, a mockery would be made of the right to frisk if the officers were required to positively ascertain that a felt object was a weapon prior to removing it.”).  Stapleton argues that the reasoning in State v. Fort applies.  See 660 N.W.2d 415, 419 (Minn. 2003) (concluding that a police officer did not have additional reasonable and articulable suspicion to search for narcotics and weapons because the search was unrelated to the initial traffic stop).  We disagree.  The record here clearly indicates that Friis had additional reasonable and articulable suspicion—derived from the bulge in Stapleton’s pocket—for expanding the Terry stop beyond the original protective frisk.  Cf. United States v. Ramos, 20 F.3d 348, 351 (8th Cir. 1994) (“[I]f the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.”) (quotation omitted).   

Next, Stapleton argues that he did not voluntarily remove the cash and clear plastic baggie from his pocket.  A police “officer has a right to ask to search and an individual has a right to say no.”  State v. Doren, 654 N.W.2d 137, 142 (Minn. App. 2002) (quotation omitted), review denied (Minn. Feb. 26, 2003).  If an officer coercively extracts consent to search, the consent is not voluntary.  Id.  “The issue is whether a reasonable person in such circumstances would have felt free to decline a request to search.”  Id. 

Here, the district court found that Stapleton’s consent was voluntarily given.  “The [district] court’s factual findings are subject to a clearly erroneous standard of review[.]”  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  In Doren, we determined that the defendant’s consent for an officer to search for weapons was voluntarily given when there was no evidence that the officer used an intimidating voice, drew his gun, made threats, or otherwise engaged in subterfuge.  654 N.W.2d at 143.  Similarly, in this case, Friis testified that he asked Stapleton to remove the contents of his pocket but did not command him to do so or use an intimidating tone of voice.  There is no indication that Stapleton was not free to decline Friis’s requests.  After the baggie protruded from Stapleton’s pocket, he attempted to walk away from Friis, which lends support to a conclusion that he felt free to leave.  Because the record supports the district court’s finding that Stapleton’s consent to search was voluntarily given, the finding is not clearly erroneous.    

Fourth, Stapleton argues that, even if the pat-down and consent questioning were proper, Friis did not have probable cause to seize the baggie from Stapleton’s pocket.  Stapleton asserts that the district court rejected Friis’s testimony on this issue because its findings of fact do not state that Friis observed white powder inside of the baggie.  Stapleton’s argument is not persuasive.  District courts are charged with making “appropriate findings” resolving issues presented at omnibus hearings.  Minn. R. Crim. P. 11.07.  Stapleton presents no authority to support his argument that “appropriate findings” means that the district court must detail all aspects of a witness’s testimony in order to find him credible.  The district court found Friis’s testimony credible in other aspects, such as his beliefs that Stapleton was under the influence of controlled substances and was potentially armed and dangerous. 

The test of probable cause considers whether a reasonable person “would entertain an honest and strong suspicion that a crime has been committed.”  In re Welfare of G. (NMN) M., 560 N.W.2d 687, 695 (Minn. 1997).  Here, Friis observed Stapleton voluntarily remove a large amount of cash from his pocket and noticed a small baggie containing white powder.  Consequently, we conclude that Friis had probable cause to search Stapleton and seize any contraband incident to arrest and affirm the district court’s omnibus order denying Stapleton’s motion to suppress.              

II.

Attorney-Client Conflict of Interest

Stapleton next argues that his conviction should be reversed because his public defender at the suppression hearing later appeared on behalf of the state in an uncontested continuance hearing.  The state asserts that Stapleton was not prejudiced because his former attorney did not speak during the hearing.  The state also argues that if the attorney’s appearance at the uncontested continuance hearing is error, it is harmless.  Stapleton raises the conflict of interest issue for the first time on appeal, so we are not required to review it.  See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (“[W]e ordinarily will not review issues that are raised for the first time on appeal unless a decision is necessary in the interests of justice.”).  We nonetheless choose to address the argument. 

By representing Stapleton at the suppression hearing and then appearing on behalf of the state in the same matter, the attorney violated a provision of the Minnesota Rules of Professional Conduct.  See Minn. R. Prof. Conduct 1.9(a) (providing that an attorney who has represented a client in a matter shall not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation”).  But the proper remedy for a conflict of interest violation is disqualification of counsel or the initiation of an ethics complaint, not reversal of Stapleton’s conviction.  See Minn. R. Prof. Conduct 8.3(a) (requiring lawyer with knowledge of another lawyer’s violation of rules to report offending lawyer to Office of Lawyers Professional Responsibility). The preamble to the Rules of Professional Conduct also rebuts Stapleton’s argument:

[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.  The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.  Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extradisciplinary consequences of violating such a duty.

 

Minn. R. Prof. Conduct preamble (emphasis added). 

The appearance of Stapleton’s former attorney for the state at a subsequent continuance hearing without any explanation is not only unethical, but also is inconsistent with an attorney’s responsibilities as “an officer of the legal system and a public citizen having special responsibility for the quality of justice.”  Id.  We do not condone such conduct.  But, given the attorney’s perfunctory appearance at the continuance hearing, any error stemming from the conflict of interest did not prejudice Stapleton and was harmless.  See Minn. R. Crim. P. 31.01 (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).  We therefore conclude that the attorney’s actions do not require a reversal of Stapleton’s conviction and a new trial. 

III.

Sentencing

The district court sentenced Stapleton to the presumptive sentence of 48 months in prison.  “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Whether to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 

Stapleton argues that his sentence was an abuse of discretion because the district court should have taken into account his criminal-history score of zero and his physical, mental, and chemical health problems.  The state argues that Stapleton waived his challenge to the sentence by not raising it at the sentencing hearing.  We find the state’s argument persuasive.  At the sentencing hearing, after the prosecutor commented on the findings of the presentence investigation, Stapleton’s attorney stated, “I believe the Presentence Investigation speaks for itself.”  Because the presentence investigation recommended the presumptive sentence of 48 months, Stapleton did not challenge the applicability of the sentence before the district court.  This court will generally not consider matters raised for the first time on appeal.  Garza, 632 N.W.2d at 637.  Even if
we did address Stapleton’s argument, we conclude that the imposition of his sentence was well within the district court’s discretion.

Affirmed.