State of Minnesota, Respondent, vs. Bryant L. Cannedy, Appellant.

State of Minnesota, Respondent, vs. Bryant L. Cannedy, Appellant. A06-979, Court of Appeals Unpublished Decision, October 2, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-979

 

State of Minnesota,

Respondent,

 

vs.

 

Bryant L. Cannedy,

Appellant.

 

Filed October 2, 2007

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 05054934

 

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

 

Mike Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant  Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of being an ineligible person in possession of a firearm, arguing that because he was unlawfully detained in the back seat of a squad car after law-enforcement officers stopped his car, the district court erred by not suppressing the gun, magazine, and ammunition that were found in his car during that detention.  Because we conclude that the challenged evidence was not discovered as a result of appellant's detention in the squad car, we affirm.    

FACTS

On August 27, 2005, at approximately 9:30 p.m., Minneapolis police officers Devick and Kaspszak were patrolling in south Minneapolis and saw a car stop at a stop sign for an "inordinate amount of time."  The officers ran the car's license-plate number and discovered that the car was registered to appellant Bryant Cannedy, whose driver's license had been revoked.  The officers stopped Cannedy's car.  Cannedy was the driver and had a passenger with him.  Officer Kaspszak testified that he thought he saw Cannedy bend forward or make a furtive gesture with his hand.  Officer Devick testified that he approached the driver's side of the car and asked Cannedy for his driver's license, and Cannedy replied that he did not have it with him.  Devick asked Cannedy to step out of the car, and the officers placed Cannedy in the back seat of their squad car. 

Kaspszak went back to the car and asked the passenger for identification, and Devick joined him because they were in a high-crime area, and, for safety reasons, Devick did not want his partner to approach the passenger alone.  Devick testified that the driver's-side door was open when he returned to the car and that he shined a flashlight into the car and saw, in plain view, a magazine for a gun on the floor of the car.  Devick told Kaspszak about the magazine, and Kaspszak removed the passenger from the car, handcuffed her, and placed her in the back seat of the squad car with Cannedy.  Devick again shined a flashlight into the car and saw two rounds of ammunition on the floor of the car and the handle of a gun sticking out from under the driver's seat. 

            Cannedy was charged with being an ineligible person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2004).  Before trial, he moved to suppress the gun, magazine, and ammunition found in his car.  The district court denied the motion, and a jury found Cannedy guilty as charged.  He was sentenced to 60 months' imprisonment.  This appeal follows.   

D E C I S I O N

Cannedy argues that because the gun, magazine, and ammunition were discovered as the result of an unconstitutional seizurehis detention in the back of the squad carthe district court erred by denying his motion to suppress that evidence. 

The district court determined that suppression was not required because the discovery of the gun was not the result of Cannedy being detained in the squad car.  It further determined that the stop, which was undisputedly lawful at its inception, was not unreasonably prolonged in duration or expanded in scope.  And finally, the district court noted that the "automobile exception" to the search-warrant requirement justified the search of Cannedy's car because, after the police officers saw the magazine in plain view, they had probable cause to believe that there was a gun in the car.     

"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

In general, evidence discovered as a result of an unlawful search or seizure may be suppressed.  See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963) (explaining that "evidence seized during an unlawful search [can] not constitute proof against the victim of the search"); In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  But even if a seizure is unlawful, it does not follow that evidence discovered in connection with that seizure should be automatically suppressed.  See Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2324 (1983) (noting that "whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct"); State v. Askerooth, 681 N.W.2d 353, 370 (Minn. 2004) (noting that even after determining that Askerooth was unreasonably confined, the court still needed to decide whether to suppress the evidence).  A court must ask "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality."  State v. Doughty, 472 N.W.2d 299, 305 (Minn. 1991) (quoting Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417)).       

Cannedy relies on State v. Askerooth to argue that his seizure was illegal and that suppression is the appropriate remedy.  He points out that in Askerooth, the evidence that was suppressed was not discovered by police as part of an unlawful search but instead was "the product of an unlawful seizure"placing the defendant in a squad car.  And here, Cannedy asserts, if he had been allowed to remain in his car during the traffic stop, "neither the clip nor the gun would have been visible to the officers." 

As the state notes, Cannedy does not dispute that the stop of his car was lawful, and he concedes that the officers were likely justified in asking him to step out of his car.  This concession is supported by caselaw.  See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977) (noting that asking the driver to step out of the car is a minimal additional intrusion after a lawful stop); Askerooth, 681 N.W.2d at 367.  And because discovery of the gun did not result from the fact that Cannedy was sitting in the squad car but from the fact that he was not sitting in the driver's seat of his own car, we agree with the district court that the gun and accessories were not discovered as a result of Cannedy's detention in the squad car.  Contrary to Cannedy's argument, the facts of Askerooth are distinguishable from the facts here.  The challenged evidence in Askerooth was found in the back seat of the squad car after the defendant abandoned it there.  Id.at 370.  The evidence would not have been discovered if Askerooth had not been placed in the squad car.  That was not the case here.

Because the discovery of the evidence was not the result of Cannedy's detention in the back seat of the squad car, the exclusionary rule does not apply here, and we need not address the legality of the detention.

Affirmed.