This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-969

 

State of Minnesota,

Respondent,

 

vs.

 

Todd Edwards,

Appellant.

 

Filed June 5, 2007

Affirmed

Collins, Judge*

 

Jackson County District Court

File No. K4-04-1063

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Robert C. O’Connor, Jackson County Attorney, Jackson County Courthouse, 405 Fourth Street, Jackson, MN 56143-1588 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

David T. Schultz, Special Assistant Public Defender, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)

 

Considered and decided by Peterson, Presiding Judge; Chief Judge Toussaint; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

 

COLLINS, Judge

 

            Appellant challenges his conviction for carrying a weapon without a permit on the grounds that convicting evidence should have been suppressed and that he did not receive effective assistance of counsel.  Because we conclude that the district court did not err in refusing to suppress the evidence and because appellant has not shown that his counsel’s assistance fell below an objective standard of reasonableness, we affirm.

FACTS

            At about 10:30 one night during Memorial Day weekend in 2004, appellant Todd Edwards and his wife were sitting at a picnic table near their campsite in a park.  Three police officers were patrolling the park.  As they approached, appellant’s wife tucked something underneath her leg on the bench.  One officer asked her to stand; he then found a brass pipe and a bag of a green leafy substance he believed to be marijuana on the bench where she had been sitting.

            When asked for her identification, appellant’s wife said it was in her car.  An officer went with her to the car and saw a black case of the type used to carry a handgun.  Appellant’s wife told the officer she knew nothing about the case; it belonged to appellant.  Appellant told the officer he had brought the gun to the park because he was having trouble with some people and, if a certain individual showed up, appellant intended to shoot him.

            Appellant was charged with carrying a pistol without a permit, a gross misdemeanor, under Minn. Stat. § 624.714, subd. 1a.[1] At an omnibus hearing, after the three officers had testified, appellant moved the district court to suppress evidence and dismiss the charge on the ground that his wife and her car had been illegally searched. 

The district court denied appellant’s motion, concluding that: (1) appellant and his wife had no expectation of privacy on a park bench; (2) the officer’s observation of appellant’s wife moving something from the table and concealing it provided an articulable factual basis to ask her to stand so he could search the bench where she had been sitting; (3) finding the pipe and the green leafy material gave the officers probable cause to charge her with petty misdemeanor possession of a small amount of marijuana and of drug paraphernalia and thus to require her to provide identification; and (4) the officer acted lawfully when he accompanied appellant’s wife to her car to obtain her identification and saw in plain view a case of the type used to carry handguns, as well as when he seized the case and the pistol it contained. 

             Proceeding under Lothenbach, appellant stipulated to carrying a pistol without a permit.  He now challenges his conviction, arguing that the officers acted illegally in searching his wife and questioning him and that he was denied effective assistance of counsel.   

D E C I S I O N

1.         Denial of motion to suppress evidence

            “When reviewing pretrial orders on motions to suppress evidence, [this court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            A.  Search of appellant’s wife[2]

One of the officers who approached appellant and his wife testified that, “As we were approaching [them, appellant’s wife] tucked something between her legs. . . .  It was very evident she didn’t want us to see it[.  W]hen she made eye contact and realized we were law enforcement she tucked the material between her legs so it was out of our visibility.”  Another officer testified that he “asked [appellant’s wife] if she would stand up because I saw her take something from the table.” 

Appellant argues that his wife’s act in taking an item from the table, in sight of the officers, and placing it under her leg, out of their sight, did not justify the search because the act was not illegal and could have been innocent.  But this court has rejected “[the] assertion that facts which are consistent with innocent activity cannot form the basis for reasonable suspicion to justify a Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)] stop.”  State v. Martinson, 581 N.W. 2d 846, 852 (Minn. 1998).  Moreover, “while each individual factor is consistent with innocent [activity], all of the factors together may amount to reasonable suspicion. . . [T]here could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.”  Id. (quotation and citation omitted).  Placing a visible object out of sight at the approach of law enforcement officers, while possibly innocent, could be the basis of a reasonable suspicion.

Relying on State v. Dickerson, appellant argues that the officer had no basis to satisfy his curiosity to determine what the object was.  481 N.W. 2d 840, 844 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993).  But Dickerson is distinguishable: it concerned an officer who, during a pat search, found a small lump in the defendant’s pocket, manipulated it with his fingers, and slid it before determining it was crack cocaine.  Id. at 843.  The search was disallowed because the object in the defendant’s pocket could not possibly have been a weapon.  Id. at 844.  Here, an officer testified that, when he saw appellant’s wife take an item from the table and put it under her leg, “To me it was suspicious.  [Asking her to stand] was for my protection is what it was.  If it was a weapon, it was for protection.” 

            We conclude that the search of appellant’s wife was not illegal.

B.         Questioning of appellant[3]

Without giving appellant a Miranda warning, the officer who discovered the gun in appellant’s wife’s car “asked [appellant] why he had the weapon down at the park loaded and he indicated they had been having some problems with some people and if [a certain person] was going to show up he [appellant] was going to use it to shoot [that person].” 

Appellant contends that the officers were obliged to give him a Miranda warning because he was in custody when they questioned him.  United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) sets out six factors for establishing custody.  The first three indicate an absence of custody: (1) whether the suspect was informed that questioning was voluntary, that he was free to leave, or that he was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during the questioning; and (3) whether the suspect initiated contact or voluntarily acquiesced to an official request to respond to questions.  Id. The next three factors indicate the existence of custody: (4) whether strong-arm tactics or deceptive stratagems were used during questioning; (5) whether police dominated the atmosphere of the questioning; and (6) whether the suspect was placed under arrest at the end of the questioning.  Id.  The two sets of factors are not to be balanced against each other mathematically; they are rather to guide the determination of the ultimate question, that is, whether the suspect was restrained as though he were under formal arrest.  United States v. Czichray, 378 F.3d 822, 827-28 (8th Cir. 2004).

            Applied here, an analysis of these factors indicates that appellant was not restrained as though he were under formal arrest.  He was not handcuffed or told to remain in a particular spot.  He responded freely to questions about the gun case after his wife said she knew nothing about it.  The officers never drew their weapons or threatened appellant. He was not arrested at the conclusion of the questioning, but was left at his campsite in the park.    

Because appellant was not in custody when he was asked about the gun, the fact that appellant was not given the Miranda warning did not make his interrogation illegal.

2.         Ineffective assistance of counsel

            To succeed on his ineffective assistance of counsel claim, appellant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the outcome would have been different.  Voorhees v. State, 627 N.W. 2d 642, 649 (Minn. 2001).

            The record does not show that the performance of appellant’s counsel fell below an objective standard of reasonableness.  Appellant’s counsel said at the initial hearing that he proposed challenging the search and seizure at an omnibus hearing.  In his argument at the conclusion of the omnibus hearing, he did so, contending that the officers had no right to ask appellant’s wife to stand up and reveal what she had placed underneath her leg; he compared appellant’s and his wife’s expectation of privacy to that of occupants of a fish house.  Appellant’s counsel responded to the state’s argument by saying the officers lacked reasonable, articulable facts to search and seize.  The transcripts of the bifurcated omnibus hearing reflect his vigorous questioning of the officers in an effort to show that their search was illegal.  Judged by an objective standard, his defense of appellant was reasonable.

            Appellant also claims ineffective assistance because his attorney did not raise the Miranda issue until two weeks after the hearing, when he sent the district court a copy of an order opinion, United States v. Taylor, Criminal No. 04-219 (D. Minn. Aug. 17, 2004) (granting suppression of evidence because defendant had not received a Miranda warning before he answered questions from police), with a letter stating that it might “be helpful,” but providing no analysis or explanation.  The state replied with a letter objecting to the presentation of Taylor as untimely and distinguishing Taylor on its facts. Even assuming that appellant’s counsel erred by not providing the district court with Taylor in a timely manner, the record provides no reason to suppose that the timely arrival of an unpublished federal order opinion in a case with readily distinguishable facts would have changed the district court’s decision.  See Voorhees, 627 N.W.2d at 649 (claim of ineffective assistance of counsel requires showing reasonable probability that, but for counsel’s errors, outcome would have been different).        

We are satisfied that appellant was not deprived of effective assistance of counsel.

Affirmed.