Opinion
No. A03-1985.
Filed October 5, 2004.
Appeal from the District Court, Hennepin County, File No. 03028700.
John Stuart, State Public Defender, Bridget Kearns, Assistant Public Defender, (for appellant)
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, (for respondent)
Considered and decided by Schumacher, Presiding Judge; Anderson, Judge; and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant, Demetrius Spencer, was arrested on April 24, 2003, for unlawful possession of a firearm. At the Rasmussen hearing two of the three arresting officers, Spencer, and Spencer's girlfriend, Callie Nelson, testified. The district court determined that there was an objective basis for stopping Spencer's vehicle, one of the officers observed a firearm in Spencer's car, and the circumstances justified the search. The district court convicted Spencer, and Spencer now appeals. We affirm.
FACTS
On April 24, 2003, shortly before midnight, Minneapolis Police Officers Kingsbury and Taylor stopped Spencer for a traffic violation. After Spencer pulled over, the officers, with spotlights, illuminated the van that Spencer was driving. There were two passengers in the front seat of the van, and an additional passenger was bent over in a rear seat. This caused the officers to be concerned for their safety.
Kingsbury approached the driver and Taylor approached the passengers. The rear seat passenger refused to comply with directions from the officers to raise his hands; instead, he repeatedly raised and lowered his hands. Taylor testified that, because of the passenger's actions, he stepped closer to the vehicle and, using his flashlight, observed a large handgun below the seat.
Taylor alerted Kingsbury to the presence of the gun and the officers removed and handcuffed the passengers. Spencer was frisked, and a gun and marijuana were found on his person.
Spencer argues that Taylor did not see the gun prior to opening the vehicle door; thus, Taylor engaged in an improper search beyond the bounds of the original stop. Nelson testified that she had not been with Spencer on the night in question but that she was familiar with the vehicle. Nelson testified that the windows are tinted and hard to see through and that it is difficult to impossible, depending on location, to see through the windows into the interior of the vehicle. Nelson testified that she did not believe it was possible to see under the seat of the van from outside the vehicle. Spencer testified inconsistently regarding whether the vehicle door was open when Taylor observed the gun.
The district court found that Taylor observed the firearm prior to opening the door and admitted the fruits of the search. Spencer is prohibited by law from possessing a firearm. A Lothenbach trial was held, and Spencer was convicted of unlawful possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b), and 609.11, subd. 5(b) (2002). This appeal followed.
DECISION
The district court's factual findings are reversed only if clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). "A [district] court's finding is [clearly] erroneous if [the appellate] court, after reviewing the record, reaches the firm conviction that a mistake was made." State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).
Here, the district court's finding that Taylor saw the gun prior to opening the door is not clearly erroneous. Taylor testified that he saw the gun before he opened the door. Nelson's testimony is of limited value because she was not present during the stop. Furthermore, Nelson is clearly not a disinterested witness. Spencer's testimony was inconsistent because Spencer testified both that Taylor opened the door before noticing the gun and that Taylor spotted the gun before opening the door. Thus, Taylor gave the strongest testimony, and the district court did not clearly err in relying on his testimony. Affirmed.
The state also argues that, even if the district court clearly erred, Spencer's conviction should still be affirmed because it was a reasonable intrusion under State v. Ferrise, 269 N.W.2d 888, 891 (Minn. 1978). Because we conclude that the district court did not clearly err, we decline to address this issue.