In the Matter of the Welfare of: D.Q.A.

This opinion will be unpublished and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

A03-870

 

 

In the Matter of the Welfare of:

D.Q.A.

 

 

Filed May 18, 2004

Affirmed in part, reversed in part, and remanded Willis, Judge

 

Hennepin County District Court

File Nos. J9-02-064313 & FAM-242942

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant D.Q.A.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            On appeal from his adjudication of delinquency for possession of a pistol, appellant argues that (1) because the stop that led to the discovery of the pistol was unconstitutional, the pistol should not have been admitted into evidence; (2) the evidence does not support a finding that he was in possession of the pistol; (3) the juvenile court made factual findings unsupported by the evidence; (4) the juvenile court improperly shifted the burden of proof from the state to appellant; and (5) the juvenile court erred in its disposition.  Because we conclude that (1) D.Q.A. waived his right to challenge the admissibility of the pistol because he did not raise the issue below; (2) the evidence supports a finding that appellant was in possession of the pistol; and (3) the juvenile court did not make factual findings unsupported by the evidence or shift the burden of proof, we affirm in part.  But because we agree that the juvenile court erred in its disposition by failing to make written findings to support its dispositional order as required by Minn. Stat. § 260B.198, subd. 1(m) (2002), and Minn. R. Juv. P. 15.05, subd. 2, we reverse in part and remand.

FACTS

            At 10:20 p.m. on September 2, 2002, Minneapolis police officer Stephen Moore was on routine patrol in Minneapolis with his partner when they noticed appellant D.Q.A. walking northbound on 16th Avenue South.  Officer Moore testified that he noticed D.Q.A. because as the squad car got close to him, D.Q.A. "looked kind of nervous" and was "peeking at [the police] out of the corner of his eyes."  Officer Moore testified that D.Q.A. then dropped a small, dark-colored object next to the sidewalk and that when the object dropped, it "sounded like metal hitting the ground or a piece of wood" and that it "made a clanking noise."  D.Q.A. continued walking down the street.  Because Officer Moore wanted to see what D.Q.A. dropped, the officers turned the spotlight on him and stopped the squad car.  Officer Moore then asked D.Q.A. if he could talk to him, and D.Q.A. walked over to the squad car. 

            While his partner talked with D.Q.A., Officer Moore walked to the place where he saw D.Q.A. drop the object; there, Moore found a pistol and a light-blue lighter lying in the dirt behind a small wood retaining wall abutting the sidewalk.  D.Q.A. was arrested at the scene and was later charged with possession of a pistol by a minor, in violation of Minn. Stat. § 624.713, subd. 1(a) (2002). 

            D.Q.A. testified at trial, as did Officer Moore and Sergeant Holley, who conducted a tape-recorded interview with D.Q.A. following his arrest.  D.Q.A. testified that (1) when he saw the police, he dropped a cigar, a dark-blue lighter, and a juice box on the sidewalk and (2) he had not possessed or dropped a pistol.  Sergeant Holley testified that D.Q.A. told him that "as he was being stopped, he dropped his juice" and that D.Q.A. did not mention anything about smoking a cigar, dropping the cigar, or dropping a lighter.

            On May 6, 2003, the district court adjudicated D.Q.A. delinquent for possessing a pistol.  On June 9, 2003, the district court placed D.Q.A. on probation and ordered him to attend and complete a gun program.  The district court also stayed a placement at the six-week Beta program at the Hennepin County Home School.  D.Q.A. appealed, challenging both the adjudication of delinquency and the delinquency disposition.

D E C I S I O N

I.

Although D.Q.A. did not move to suppress the pistol before trial or object to its admission during trial, he now claims that the pistol was unlawfully seized.  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).  As a general rule, a reviewing court will not consider issues, even constitutional issues, that are raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  But the waiver rule is not absolute and a reviewing court "may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party."  Johnson v. State, 673 N.W.2d 144, 147 (Minn. 2004).

D.Q.A. argues that appellate review of the seizure of the pistol is appropriate here because it involves his constitutional right to be free from unreasonable searches and seizures, and he urges this court to exercise its discretion and review the constitutionality of the stop.  See Minn. R. Civ. App. P. 103.04 (providing that appellate courts may review any matter as the interest of justice may require).  He further asserts that the record is adequate for this court to address the constitutionality of the stop, noting that Officer Moore was asked at trial about (1) D.Q.A.'s demeanor when he saw the police, (2) what the item that Officer Moore saw D.Q.A. drop looked like and how it sounded when it hit the ground, and (3) why Officer Moore called D.Q.A. over to the squad car.

The state argues that by failing to challenge the admissibility of the pistol before trial, D.Q.A. waived his right to raise the issue on appeal and that application of the waiver doctrine is appropriate because the lack of an omnibus hearing deprived the state of its opportunity to present evidence tailored to meet the constitutional challenge.  See State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (stating that the defendant's discussion of issues not raised below was "particularly inappropriate because they involve undeveloped questions of fact").  The state notes that D.Q.A. now argues that Officer Moore had no basis to stop D.Q.A. because nowhere during the trial did Officer Moore specifically "testify that he thought the object dropped was a weapon or why he might have thought that" and maintains that had D.Q.A. previously challenged the admission of the pistol, the prosecutor likely would have asked Officer Moore to more fully explain his testimony.  Because D.Q.A. did not challenge the pistol's admission below, we conclude that addressing the issue of the constitutionality of the stop of D.Q.A. would work an "unfair surprise" on the state because the record here was not adequately developed and that, thus, the application of the waiver doctrine is appropriate; we nevertheless determine that the pistol was properly admitted under search and seizure law.

This court reviews de novo the legality of a limited investigatory stop and questions of reasonable suspicion and "must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure."  See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures.  Not all encounters between the police and a citizen constitute a seizure.  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  Instead, seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quoting