In the Matter of the Welfare of J. T. C.

In the Matter of the Welfare of J. T. C. A06-2144, Court of Appeals Unpublished Decision, December 24, 2007.

This opinion will be unpublished and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

A06-2144

 

In the Matter of the Welfare of J. T. C.

 

Filed December 24, 2007

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 27-JV-06-13149

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)
 
Lori Swanson, Attorney General, Bremer Tower Suite 1800, 445 Minnesota Street, St. Paul, MN 55101-2134; and
 
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Minge, Judge. 

U N P U B L I S H E D   O P I N I O N

STONEBURNER, Judge

Appellant challenges his delinquency adjudication based on underage possession of a pistol. Appellant argues that the juvenile court erred by denying his motion to suppress evidence obtained from an illegal seizure and that the prosecutor failed to prove beyond a reasonable doubt that he actually or constructively possessed a handgun.   We affirm.

FACTS

On September 5, 2006, Minneapolis Police officers Roberts and Hamilton were on patrol in north Minneapolis.  At approximately 7:30 p.m. they responded to a dispatch based on a 911 call reporting that the caller had seen a black male, wearing a black shirt and black pants, with a handgun tucked into the waistband of his pants, in the area of 36th Avenue North and Queen Avenue North.  The caller also described a male between the ages of 18 and 20 wearing a white t-shirt and stated that there were several other people present in the area.  The officers arrived at the location within five or ten minutes of the call.

            Roberts testified that as they pulled up to the area, he observed a black male who was 18 to 20 years old, with spiked hair, a black shirt and black pants, standing on the passenger side of a car that was parked in front of 3601 Queen Avenue North.  Roberts noted that several other people were standing on the passenger side of the car and that as the officers pulled up, the black male in the black shirt ran to the stairs in front of 3601 Queen.  After Roberts parked the squad car, he saw another male crouched down in front of the car on the passenger side and a female in the driver's seat of the vehicle.  Roberts testified that his attention was focused on the man in the black shirt who had run to the stairs and that he was thereafter occupied by detaining and searching this man.

            Hamilton testified that as they approached the scene, he observed a black male standing on the porch of 3601 Queen and several other people standing near the house.  He also saw the car parked in front of the house with a female in the driver's seat but did not see anyone standing by the car.  Hamilton testified that as he got out of the squad car, he said something like "what's going on guys?" or "how's it going?" to keep everyone focused on him.   At the same time, Hamilton observed a male in a white shirt run with his hands on his waistband from the porch area of the house up to the car, where he crouched down by the passenger side.  This person was later identified as appellant, J.T.C., whose date of birth is April 7, 1989.  Hamilton did not observe anyone else near the car at this time. 

            As J.T.C. crouched down by the car, approximately three feet away from Hamilton, Hamilton heard a metal object hit the ground and thought it was a gun.  Hamilton testified that he did not want to alert J.T.C. that he had heard the object fall so he kept talking, saying to the group "well, you  know, we have to check you out."  Hamilton testified he just wanted to get J.T.C. away from the area where he had heard the gun drop so he motioned for J.T.C. to approach him.  J.T.C. came over to Hamilton, who patted him down and placed him in the back of the squad car to secure him.  Hamilton did not recover anything as a result of the pat-search. 

Hamilton then focused his attention on a man who was standing on the porch.  Hamilton approached this man intending to search him. Hamilton testified that he looked down and saw a semi-automatic handgun right behind this man on the porch.   Hamilton picked up the gun, searched the man and found two throwing knives.  Hamilton placed this man in the squad car.  Hamilton then went to the area where he had seen J.T.C. crouching and picked up a gun from underneath the car. 

J.T.C. was arrested, and a delinquency petition was filed charging him with underage possession of a pistol in violation of Minn. Stat. § 624.713, subd. 1(a) (2006).[1]   The juvenile court heard J.T.C.'s motion to suppress the evidence on the same day as his delinquency trial.  J.T.C. argued that the officers had no individualized reasonable articulable basis to detain and search him and that all of the evidence, including the gun, is the fruit of an illegal search and seizure. The district court denied the motion, and after trial, concluded that J.T.C. had committed the charged offense and adjudicated him delinquent.  After disposition, J.T.C. appealed.

D E C I S I O N

A district court's decision regarding the suppression of evidence, including the constitutionality of a limited stop and pat search, is reviewed de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  "In reviewing [district] court rulings on fourth amendment issues, this court accepts the [district] court's findings of fact, unless clearly erroneous, but independently applies [F]ourth [A]mendment case law to the facts so found."  State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). 

In this case, the juvenile court's findings erroneously stated that Hamilton testified that J.T.C.'s having his hands at his waistband as he ran towards the car was "consistent with that of a person reaching for a weapon."  There is no such testimony in the record.  The record also does not support the juvenile court's finding that the passenger window of the car was open or the juvenile court's implied finding that Hamilton immediately searched the ground under the car after he secured J.T.C.  But we conclude that these factual errors do not affect the validity of the juvenile court's denial of J.T.C.'s motion to suppress evidence of the gun and are harmless.

The state correctly asserts that this case does not involve the law of search and seizure because J.T.C. abandoned the gun before Hamilton summoned him for the pat search.  In the context of the law of search and seizure, the consequences of abandonment are well established.

"The significance of abandoned property in the law of search and seizure lies in the maxim that the protection of the fourth amendment does not extend to it.  Thus where one abandons property, he is said to bring his right of privacy therein to an end, and may not later complain about its subsequent seizure and use in evidence against him.  In short, the theory of abandonment is that no issue of search is presented in such situation, and the property so abandoned may be seized without probable cause."

 

City of St. Paul v. Vaughn,306 Minn. 337, 345, 237 N.W.2d 365, 370 (1975) (quoting Edward G. Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff. L. Rev. 399, 400) (1970-71)). 

            J.T.C. argues that the officers improperly provoked him to drop the gun because it was clear that the officers intended to search everyone present.  But Hamilton testified that he did not say "we have to check you out," or summon J.T.C. to be searched until after he distinctly heard the sound of a gun being dropped.  Therefore, the record does not support J.T.C.'s argument that he was effectively seized before he dropped the gun.   After Hamilton heard the sound of the gun dropping, he had a particular and objective basis for suspecting that J.T.C. was illegally in possession of a gun that supported J.T.C.'s seizure.  See State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999) (stating that a brief seizure for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the seized person of criminal activity).  Because Hamilton seized the gun after it was abandoned and did not cause J.T.C. to abandon the gun, the juvenile court did not err in denying the motion to suppress.

            J.T.C. also argues that the state failed to prove beyond a reasonable doubt that he actually or constructively possessed the gun that Hamilton found under the car.  A reviewing court will overturn a delinquency finding only if the trier of fact could not have reasonably found that the juvenile committed the charged acts.   In re Welfare of T.M.V.,368 N.W.2d 421, 423 (Minn. App. 1985).  When reviewing a sufficiency-of-the-evidence claim, we must evaluate the record and take any legitimate inferences that can be drawn from the record in the light most favorable to the adjudication.  In re Welfare of S.A.M.,570 N.W.2d 162, 167 (Minn. App. 1997).  We do not disturb a delinquency finding if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude from the evidence that the juvenile committed the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).    

            To prove constructive possession, the state had to show that the police officers found the gun in a place under J.T.C.'s exclusive control to which others did not have access, or in a place over which J.T.C. was exercising control at the time.  See State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  A court looks at the totality of circumstances in assessing whether a defendant had constructive possession of a gun.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

            In this case, Hamilton heard the sound of a gun being dropped in the vicinity of where, at the relevant time, only J.T.C. was located.  "Proximity is an important consideration in assessing constructive possession."  State v. Smith,619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  There is no evidence in the record that any other metal object was discovered under the car or that anyone else was near the location of the gun between the time that Hamilton heard a metal object drop and the time that he retrieved the gun.  Although J.T.C. claims that others were standing near the passenger side of the car and that one of them could have dropped the gun, the juvenile court credited Hamilton's testimony that at the time he heard the gun drop, J.T.C. was the only person near the front passenger side of the car.  The evidence is therefore sufficient to support the juvenile court's finding that the state proved possession beyond a reasonable doubt.

            Affirmed.

[1] Persons under the age of 21 are not eligible to carry a handgun.  Minn. Stat. § 624.714, subd. 2(b) (2006) (providing that a person must be 21 years old to obtain a permit to carry a pistol).