State of Minnesota, Respondent, vs. George Alan Van Zee, Appellant.

State of Minnesota, Respondent, vs. George Alan Van Zee, Appellant. A04-665, Court of Appeals Unpublished, May 24, 2005.

 This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-665

 

State of Minnesota,

Respondent,

 

vs.

 

George Alan Van Zee,

Appellant.

 

Filed May 24, 2005

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K7-03-1824

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

John N. Nelson, John Nelson & Associates, 175 Lexington Parkway North, Suite 200, St. Paul, MN  55104; and

 

Daniel S. Adkins, Sand, Adkins & Associates, P.A., 175 Lexington Parkway North, Suite 200, St. Paul, MN  55104 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Minge, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Seeking reversal of his first-degree controlled substance conviction, appellant contends the district court erred when it failed to suppress evidence of narcotics obtained during a stop.  Because the record does not support appellant's assertion that the vehicle he occupied was stopped without articulable suspicion of wrongdoing, we affirm. 

FACTS

            After officers found methamphetamine in appellant George Van Zee's duffle bag, the state charged him with knowingly possessing drugs in violation of Minn. Stat. § 152.021, subds. 2(1), 3(b) (2002).  Following the denial of his motion to suppress evidence of the drugs, appellant waived his right to a jury trial and submitted his case to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty of first-degree controlled substance crime and sentenced him to an executed term of 158 months. 

            In April 2003, St. Paul Police Officer Ronald Lehner received a call from a citizen stating that appellant was operating a methamphetamine laboratory in the attic of a house and frequently stole supplies of anhydrous ammonia from nearby farm fields.  Officer Lehner received the same information from a confidential reliable informant who had been inside the house and personally witnessed the operation. 

            Officer Lehner confirmed that appellant lived at the location and conducted surveillance of the house.  Based on the information the officer collected, he was able to obtain a search warrant for appellant, the residence, and two vehicles regularly parked in front of the house, including a 1986 Ford LTD Crown Victoria (Ford) with Minnesota license plate 761 PXT.  Neither this warrant nor another issued on May 7, 2003, were executed.

            On May 16, 2003, Officer Lehner set up surveillance at appellant's house.  That evening, a red Cadillac arrived between 6:00 and 7:00 p.m. and took appellant to 1362 Birmingham.  Officer Lehner was familiar with the address because he had conducted a "knock and talk" there a month earlier; he recovered a stolen gun, empty methamphetamine wrappers, and an admission by the resident that he was a methamphetamine user. 

            The officer then maintained surveillance at 1362 Birmingham and witnessed arrival of the Ford identified in the search warrant.  The officer suspected this vehicle was used to transport stolen anhydrous ammonia.  About a half hour later, appellant came out of the house carrying a black duffle bag, placed the duffle bag in the trunk, and entered as a passenger in the Ford.  Officer Lehner testified that he suspected appellant had narcotics on him or in the trunk of the vehicle.  When the vehicle left 1362 Birmingham, Officer Lehner ordered his partner, who was waiting nearby in a squad car, to stop the vehicle. 

            The officers temporarily lost sight of the vehicle, but regained surveillance approximately eight blocks later.  Officer Jeffrey Whitbeck stopped the Ford.  Three people were in the vehicle; appellant was in the back seat.  The driver of the vehicle was a female and she did not have her driver's license.  While talking to the driver, Officer Whitbeck noticed appellant in the back seat moving around nervously.  The officer asked appellant to put his hands where they could be seen.  Appellant initially complied with the officer's request but quickly began moving his hands around again.  Officer Whitbeck drew his firearm because he thought appellant had a weapon and asked appellant to exit the vehicle.

In the process of patting down appellant, Officer Whitbeck felt a long, hard, cylinder-type object inside appellant's front right pocket.  The officer testified that he had knowledge of small weapons and suspected that the object he felt could possibly have been a weapon.  He also testified to his training on common objects being used as weapons such as razors, needles, and pens.  Uncertain of what the object might be, and claiming concern for his safety, the officer pulled the object out of appellant's pocket to ensure it was not a weapon.  The object was contained in a leather case, which the officer opened, and then removed a glass cylinder tube containing a white powder.  Officer Whitbeck took possession of the container and handcuffed and arrested appellant. 

Shortly thereafter, Officer Jeffrey Slagerman arrived with a narcotics-detection dog and began an exterior search of the vehicle.  The dog gave a "slight indication of the right rear seam of the trunk."  Following an interior search of the vehicle, the dog gave a strong positive alert for a narcotic in the back seat of the vehicle.  Upon opening the trunk, the officers smelled a strong chemical odor and the dog further "alerted" on the black duffle bag.  A hazardous material team was called in after the officers opened the bag and found chemicals.  The bag contained a high level of ammonia and several packets of methamphetamine with a total solid weight of 45.5 grams. 

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, an appellate court may independently examine the facts and determine de novo whether the district court's ruling was in error.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)

1.

Appellant's briefing primarily contends that it was improper to execute the search warrant at the location in which the stop occurred, but this was not the basis of the district court's decision.  As appellant acknowledges, the district court stated that the officer had a reasonable basis for the stop, without use of the warrant.  See Marben v. Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (stating that "[i]t is well settled that in accordance with the Fourth Amendment of the United States Constitution a police officer may not stop a vehicle without a reasonable basis for doing so").   In the court's words: 

[The officer] believed there were narcotics or narcotics supplies in the vehicle either taken in there by [appellant] in the black bag . . . .

 

. . .

 

[T]hey had gone to [the Birmingham] house where they had been before and they knew was a house in which methamphetamine had been used and which illegal guns, unregistered guns, had been present.  And, so, all of the circumstances taken together gave Officer Lehner, without the fact that there was even a search warrant, a justifiable reason to stop this vehicle and to do an investigation. 

In addition to that, when they did the stop, then, of course, the [appellant] made somewas uncooperative, acted in a way that raised suspicion, so much that the other officer drew his gun because he was concerned.

 

Appellant suggests that the information used earlier to obtain the search warrant was stale and not based on circumstances at 1362 Birmingham Street.  In order to justify such an investigatory stop, "[t]he police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'"  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The officer assesses the need for a stop "on the basis of ‘all of the circumstances'" and "‘draws inferences and makes deductions . . . that might well elude an untrained person.'"  State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).  The information necessary to support an investigative stop need not be based on the officer's personal observations, rather, the police can base an investigative stop on an informant's tip if it has sufficient indicia of reliability.  State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980).  

Based on information from a citizen, another reliable informant, prior surveillance, and movements of appellant with the black duffle bag, Officer Lehner had reasonable suspicion for a stop.  The record supports Officer Lehner's testimony that he believed that the duffle bag contained narcotics and possibly a portable methamphetamine lab.  As appellant suggests, the officer received some of this information several weeks earlier, but (a) the significance of the age of the information has not been shown, (b) much of the information uncovered earlier was freshly corroborated shortly before the stop, and (c) the earlier information established probable cause for a search, satisfying a more demanding standard than required to justify a stop.   

2.

            Appellant raised additional issues at oral argument, most of which cannot be reviewed because of his limited briefing.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

            A.         Pat and Frisk

            At oral argument appellant contended that the officer did not have probable cause to pat and frisk appellant.  The state argues that while Officer Whitbeck was talking to the driver of the vehicle the officer was distracted by appellant's nervous movements in the back seat.  Officer Whitbeck asked appellant to keep his hands where they could be seen; after appellant did not adhere to the officer's request, the officer asked him to exit the vehicle.  Additionally, the drug circumstances of the investigation contributed to the officer's fear that appellant could be armed. 

Appellant's brief includes one sentence regarding the pat and frisk and no citation to legal authority.  We are not to address issues not supported by rational argument or citation to legal authority.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). 

            B.         Seizure of the Leather Case

The state contends that the search was justified as a protective effort to locate weapons.  Terry, 392 U.S. at 26, 88 S. Ct. at 1883.  Based on appellant's actions, the officer's experience, and the knowledge the officer had regarding the illegal guns at the house appellant had just left, his belief that the object he felt in appellant's pocket could be a weapon was reasonable.  See State v. Bitterman, 304 Minn. 481, 483, 486, 232 N.W.2d 91, 93-94 (1975) (prescription bottle); State v. Gannaway, 291 Minn. 391, 393, 191 N.W.2d 555, 556-57 (1971) (corncob pipe); State v. Hart, 412 N.W.2d 797, 800-01 (Minn. App. 1987) (test tube), review denied (Minn. Nov. 13, 1982).

Appellant merely states that "one might ask . . . how a small pen cap could be characterized as a weapon."  Because this evident argument of appellant is not supported by argument or citation to legal authority, we are not to address this issue.  Krosch, 642 N.W.2d at 719. 

            C.        Search of Duffle Bag

            At oral argument appellant contended that the search of his duffle bag was illegal.  The state argues that the cumulative prior information, appellant's furtive movements, the fruit of the personal search, and the dog sniff all established probable cause to search the duffle bag.  The district court agreed and stated "there was almost more here than necessary" to allow the search. 

Appellant's brief did not address this argument; again, therefore, we will not address this issue.  Krosch, 642 N.W.2d at 719. 

3.

            Appellant argues that the state failed to prove that he possessed the requisite amount of controlled substance to support a first-degree conviction.  Appellant submitted his case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  In State v. Busse, 644 N.W.2d 79 (Minn. 2002), the supreme court held that an appellant may not challenge the sufficiency of the evidence after a Lothenbach trial on stipulated facts because the Lothenbach procedure is used to submit a case to the district court while "preserving pretrial issues for appeal."  Id.at 88 (quotation omitted). 

            An appellant may properly challenge the state's proof of elements of the charge by proceeding to trial instead of stipulating to the state's case.  Id. at 89.  By pleading guilty and stipulating to the state's case, appellant waived any challenge on this point.  See Busse, 644 N.W.2d at 89; Lothenbach, 296 N.W.2d at 857. 

            Affirmed.

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