State of Minnesota, Respondent, vs. Brian Lang Nevison, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-341

 

 

State of Minnesota,

Respondent,

 

vs.

 

 

Brian Lang Nevison,

Appellant.

 

 

 

Filed December 26, 2000

Affirmed

Mulally, Judge*

 

 

Hennepin County District Court

 File No. 99064375

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Hennepin County Government Center, 2000 Court Tower, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Mulally, Judge.

U N P U B L I S H E D  O P I N I O N

 

MULALLY, Judge

Brian Lang Nevison appeals his conviction of one count of unlawful possession of a firearm by a felon in violation of Minn. Stat. § 624.713, subds. 1(b) & 2 (1998), on the grounds that (1) the shotgun was unlawfully seized from his home, and (2) he was denied his constitutional right to a fair trial because evidence of a prior conviction was admitted.  Because the shotgun was lawfully seized from appellant's home, and he failed to object to the admission into evidence of his prior conviction, we affirm.

D E C I S I O N

I.          Search and Seizure

 

            Appellant argues that he is entitled to a new trial because the trial court improperly denied his motion to suppress evidence of the shotgun seized from his home.  He alleges that the shotgun was the "fruit" of an unlawful search.  On an appeal from a pre-trial order refusing to suppress evidence, this court may review the facts independently.  See State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Appellant asserts that his motion to suppress evidence of the shotgun should have been granted because (1) the evidence resulted from an impermissible protective sweep search, and (2) a later search of Appellant's home was not pursuant to a validly issued search warrant.

            A.  Protective Sweep Search

 

            Appellant contends that the trial court erred in denying his motion to suppress the evidence that was obtained from the protective sweep search as "fruit of the poisonous tree" because there were no exigent circumstances to justify the search.  A protective sweep search of a home is permitted by the Fourth Amendment in conjunction with an arrest when an officer possesses a reasonable belief, based on specific and articulable facts, that either the area to be swept harbors an individual posing a danger to those on the arrest scene or it is likely that evidence may be destroyed. See State v. Alayon, 459 N.W.2d 325, 328-30 (Minn. 1990) (upholding protective sweep search of home even though the arrest was effected approximately one block away because it was likely that evidence would be destroyed); see also Maryland v. Buie, 494 U.S. 325, 337, 110 S. Ct. 1093, 1099-1100 (1990).

            Here, there is ample evidence of exigent circumstances to justify the protective sweep search of appellant's home even though he was arrested outside his home.  The record indicates that: (1) there was a history of domestic abuse at this residence; (2) upon police arrival at the scene, appellant threatened the police and indicated that he had a loaded weapon; (3) appellant originally refused to allow the other occupants of the residence to leave the residence; (4) a six-hour standoff took place; (5) an officer testified that the number of occupants of the home was unknown; and, (6) two police officers testified that the purpose of the search was to check for injured persons, hostages, or hostile people.

            Appellant argues that the purported purpose of the searchto check for injured persons, hostages, or hostile peopleis false in light of the fact that there was "simply no evidence offered at the hearing to suggest that anyone other than Appellant and his common law family lived in the residence."  Appellant's argument is not persuasive. The trial court is in the best position to judge the credibility of the evidence establishing the purpose of the search.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).  Here, the trial court found that

            [t]he testimony of Sergeant Kelly and Officer Hanks was particularly credible in clarifying the purpose and scope of the protective sweep.  It was to check for injured persons, hostages or hostile people.

 

Because this court defers to the trial court's credibility judgments, this court cannot say that the protective sweep search was conducted for reasons other than to check for injured persons, hostages, or hostile people.  Further, there was evidence in the record that the surrounding police officers did not know the number of person occupying the home at the time of the standoff. Accordingly, the protective sweep was proper.

B.        Search Warrant

            In addition, appellant argues that the warrant issued on June 30, 1999 was invalid because the information in the supporting affidavit relating to the June 20, 1999 domestic-abuse incident was too stale to support a finding of probable cause to believe that the items sought would still be in defendant's possession. Issues not raised before a trial court may not be raised on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Because appellant did not argue to the trial court that the search warrant was invalid since it relied on stale evidence, we will not consider this claim.

II.         Evidence of Prior Conviction

            Despite a stipulation to the fact that appellant was not supposed to be in possession of a firearm, appellant claims that he was denied his constitutional right to a fair trial based on the admission of evidence regarding his prior conviction.  As a general rule, if defense counsel fails to object to an error at trial, the defendant is deemed to have forfeited his right to have this court consider that error on appeal.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  Here, appellant readily admits that defense counsel made no objections to the admissibility of evidence regarding his prior conviction.  Therefore, appellant cannot, now for the first time on appeal, argue that such evidence was improperly admitted.

            Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.