A05-1512

State of Minnesota,

Respondent,

vs.

Michael Stuart Thompson,

Appellant.

Filed September 19, 2006

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 04082046

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

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

HUDSON, Judge

On appeal from conviction of prohibited person in possession of a firearm, appellant challenges the district court’s denial of his motion to suppress evidence following a Rasmussen hearing. Appellant argues that (1) police officers executing a search warrant when appellant arrived at the house did not have a reasonable and articulable suspicion of criminal activity sufficient to justify his seizure; (2) the provision of the search warrant permitting the police to search “all occupants” was unconstitutional; and (3) even if there was sufficient reasonable and articulable suspicion to justify his initial detention and pat-down, appellant was effectively arrested without probable cause when he was escorted into the house and handcuffed. Because we conclude that the initial search and seizure of appellant was justified by the police officers’ reasonable concern for their own safety, we affirm.

FACTS

On December 14, 2004, officers from the Minneapolis Police Department searched a south Minneapolis residence pursuant to a “knock and announce” daytime search warrant. The warrant authorized the search of “the seller known as Vaca . . . and all occupants therein.” After entering the house and securing the scene, police officers inside the house noticed a man walk into the enclosed front porch of the house and up to the front door of the house, which was slightly open. An officer approached the man, later identified as appellant, identified himself as a police officer, and asked appellant to go into the living room of the house. A police officer then led appellant into the house, handcuffed him, and conducted a pat search during which he found heroin on appellant’s person. After discovering the heroin, the officers escorted him to the basement of the house to conduct a search incident to arrest during which they found three more bindles of heroin. During the search, a police officer asked appellant to remove his shoes, and while appellant was taking off his boots, officers observed appellant drop or throw a fully loaded .32 caliber pistol to the ground.

Following a Rasmussen hearing, the district court denied appellant’s motion to suppress the evidence of the heroin and gun discovered by police. The district court concluded that the police officers had reasonable, articulable suspicion that appellant was involved in criminal activity and that officer safety also justified appellant’s initial detention. The district court concluded that the heroin found in appellant’s possession constituted sufficient probable cause to justify his subsequent arrest and search. Appellant waived his right to a jury trial, following which the district court convicted appellant of being a prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2004). This appeal follows.

D E C I S I O N

Appellant challenges the district court’s denial of his motion to suppress evidence. Evidence obtained as the result of an illegal search must be suppressed. State v. Harris, 590 N.W.2d 90, 104–05 (Minn. 1999). “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” Id.at 98. But we accept the district court’s findings of fact regarding a motion to suppress unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

The Fourth Amendment of the United States Constitution and Article I of the Minnesota Constitution protect individuals against unreasonable searches and seizures of their persons, papers, and effects. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Police can temporarily detain or seize an individual if they have a reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20–22, 88 S. Ct. 1868, 1879–80 (1968). Additionally, a police officer may conduct a limited protective weapons frisk “if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm.” State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998). An officer must base his or her conclusion on objective facts, not a mere “hunch.” State v. Johnson, 444 N.W.2d 824, 825–26 (Minn. 1989). However, an officer “may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.” State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999) (quotation omitted).

In State v. Bitterman, the Minnesota Supreme Court concluded that circumstances justified a protective frisk of a person who arrived at a house during a search by the police pursuant to a warrant to search for heroin. State v. Bitterman, 304 Minn. 481, 484–85, 232 N.W.2d 91, 93–94 (1975). In Bitterman, the police officer recognized the defendant as a heavy user of heroin, and the court noted “[t]he fact that the premises were being searched under a warrant for heroin, a very dangerous drug, gave [the officer] the knowledge that dangerous people, who commonly carried weapons, were involved.” Id. at 485, 232 N.W.2d at 94. In State v. Gobely, the Minnesota Supreme Court upheld the protective frisk of an individual who arrived at a private apartment being searched by the police pursuant to a search warrant for robbery suspects. State v. Gobely, 366 N.W.2d 600, 602–03 (Minn. 1985). The Gobely court examined the circumstances surrounding the seizure and noted that the police were aware of stolen goods in the apartment, that one of the suspects was reportedly armed during one of the robberies, that the suspect knew one of the occupants, and that the suspect refused to identify himself and turned as if to leave when asked to identify himself. Id. The court held that “the combined factors . . . reasonably led the experienced officers to suspect the defendant was armed and dangerous.” Id.

This case is similar to both Gobely and Bitterman. Here, appellant evidenced an apparent familiarity and comfort level with the occupants of the residence when, without knocking, he opened the exterior door of the house, entered the fully enclosed porch, and walked directly to the open door leading into the living room. After police officers approached appellant and identified themselves, appellant “turned back around and looked at the porch door.” A police officer later testified that, in his experience, such behavior “indicates that the party was thinking about fleeing from the scene.” Another police officer testified that, in his experience, people visiting a house from which drugs are sold may be involved in buying or selling drugs themselves and may be armed. Additionally, the police officers conducting the search were aware that drugs had been sold out of the residence, that known drug users frequented the residence, that the residence was being used as a base for various drug dealers, and that a confidential informant had made a controlled heroin buy at the residence.

Here, the district court determined that appellant’s presence at the scene constituted a breach of security, and that the police—out of concern for their safety—properly conducted a pat-search, which led to the discovery of heroin on appellant’s person. Accordingly, appellant was arrested and subjected to a more thorough search.

On this record, we conclude that the district court did not err when it determined that police officers reasonably believed appellant posed a threat of immediate harm sufficient to justify appellant’s detention and frisk. Nor did it err when it determined that the police had probable cause to arrest appellant after finding the heroin. The police found the gun as a result of a search incident to a lawful arrest. On this record, we conclude that the district court did not err when it denied appellant’s motion to suppress.

Appellant argues for the first time on appeal that the “all occupants” provision of the search warrant is unconstitutional. Generally, this court will not consider issues that were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But if the interests of justice require, this court can consider such issues. Id. Appellant, however, does not argue that the interests of justice compel this court to hear this issue; instead, appellant argues that the issue was in fact raised before the district court because the parties discussed the “all occupants” provision of the search warrant. Appellant mischaracterizes the record. The parties spent a significant amount of time discussing this provision of the search warrant, but only in the context of whether appellant could be considered an “occupant” within the meaning of the search warrant and the relevant case law. Thus, appellant’s constitutional challenge of the “all occupants” provision of the search warrant for the first time here on appeal is unavailing. Accordingly, the district court did not err when it refused to suppress the evidence.

Affirmed.