State of Minnesota, Respondent, vs. David S. Rock, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-277

 

 

State of Minnesota,
Respondent,
 
vs.
 
David S. Rock,
Appellant.

 

 

Filed January 20, 2004

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. 02062570

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges his conviction of unlawful possession of a firearm, arguing that police officers seized the gun after an unconstitutional search.  Because appellant waived this argument by failing to present it in the trial court, we affirm. 

FACTS

            On August 5, 2002, two Minneapolis police officers responded to a report of gunshots in their patrol area.  While investigating the report, both officers observed appellant David Rock slumped over in the driver's seat of a parked and running vehicle.  After approaching the vehicle and talking with appellant, one of the officers suspected that appellant was intoxicated and planned to conduct field sobriety tests.  While standing next to the vehicle, this officer observed a bulge in appellant's pants pocket.  After requesting that appellant place his hands on the steering wheel, the officer reached into the vehicle, felt the bulge, and immediately identified the bulge as a firearm.  The officer removed appellant from the vehicle and seized the firearm.

            Appellant was arrested and charged with illegally possessing a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Appellant moved to suppress the firearm as evidence, arguing that it was seized after an unconstitutional stop and frisk.  At the suppression hearing, appellant's counsel stated that the issues were "the show of force or stop of the vehicle and then the Terry frisk that occurred thereafter."  The trial court denied appellant's motion on the stop issue and his Terry-frisk argument, deciding, inter alia, that the officer had articulable grounds to frisk appellant by feeling the apparent bulge in his pants pocket. 

            On appeal, appellant argues that the officer lacked probable cause to reach into appellant's pocket after either seeing or feeling a bulge in appellant's pocket.  Appellant asserts as a matter of fact that the officer initiated the search, after seeing a lump in appellant's pocket, by immediately reaching into appellant's pocket. 

D E C I S I O N

            A reviewing court generally will consider only matters argued and considered by the trial court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (Roby II).  As a general rule, this court will not consider issues, even constitutional issues, which are raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  Accordingly, this court ordinarily will not consider the validity of a search if the defendant did not raise the issue at some stage of the criminal proceedings in the trial court.  State v. Merrill, 274 N.W.2d 99, 109 (Minn. 1978); State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976).

            For the first time on appeal, appellant raises arguments regarding the seizure of his firearm that go beyond the topics of the police stop and the occurrence of a frisk.  Appellant argues that the officer's frisk of the bulge in his pants pocket was actually a search, lacking in probable cause, because the officer reached inside appellant's pants pocket before feeling the weapon in a pat-down search.  Appellant neither made this factual contention nor argued any probable-cause-for-search issue in the trial court.  By failing to raise an issue below, appellant has waived the argument on appeal.  See Kremer, 307 Minn. at 312-13, 239 N.W.2d at 478 (stating that contentions regarding scope and justification of search may not be properly raised for the first time on appeal). 

            Further, in making this appeal, appellant disregards the trial court's finding, sufficiently supported by evidence in the record, that the searching officer felt the bulge in appellant's pocket, that thereby the officer "immediately identified the bulge as a gun," and that this occurred before the officer acted further to remove appellant from the vehicle and to seize the firearm. 

            Affirmed.     

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