State of Minnesota v. Khong Meng Kong ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0859
State of Minnesota,
Respondent,
vs.
Khong Meng Kong,
Appellant.
Filed April 4, 2016
Affirmed
Stauber, Judge
Ramsey County District Court
File No. 62CR144790
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges his conviction of possession of a firearm by an ineligible
person, arguing that the district court erred in denying his suppression motion because
law enforcement failed to conduct a pat search prior to moving his t-shirt. Because
appellant failed to raise this argument below and the firearm would have inevitably been
discovered during a pat search, we affirm.
FACTS
In June 2014, Saint Paul police officers were dispatched after a 911 caller reported
a suspicious vehicle. As two officers approached the vehicle, they observed appellant
Khong Meng Kong holding an open bottle of vodka. An officer asked Kong for
identification. Kong appeared nervous and kept reaching towards his left front pocket
and waistband, but did not produce his ID. One officer observed Kong push a “roundish”
object, which was covered by his shirt, lower into his belt line. The officer later testified
that based on his experience, he “immediately felt that it was probably a gun.” The other
officer similarly observed Kong “kind of pulling down near his pants pocket . . . toward
the left side of his waist.” The officers had Kong step out of the car. While one officer
held Kong’s hands on his head, the other officer lifted Kong’s shirt near his left waistline
and immediately observed and removed a handgun, later identified as a .22 caliber
Derringer-style pistol. Based on a prior felony conviction, Kong was arrested and
subsequently charged with possession of a firearm by an ineligible person.
Kong moved the district court to suppress all evidence obtained from the stop
because his “seizure was not supported by reasonable articulable suspicion of criminal
activity” and the search was not supported by probable cause. The district court denied
the motion, determining that the officers had sufficient reason to seize Kong and conduct
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a pat search for their safety. After a stipulated-facts bench trial, the district court found
Kong guilty. This appeal follows.
DECISION
Kong concedes that the officers were permitted to conduct a Terry search,1 but
argues that when the officer lifted his shirt without first patting the area, the permissible
scope of the search was exceeded. “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 suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings
of fact for clear error and legal determinations de novo. State v. Gauster, 752 N.W.2d
496, 502 (Minn. 2008).
The state asserts that Kong did not preserve the issue of whether the officer
improperly lifted his shirt because it was not argued below. We generally do not consider
matters not argued to and contemplated by the district court, including constitutional
questions of criminal procedure. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But
we “may review any order or ruling of the district court or any other matter, as the
interests of justice may require.” Minn. R. Crim. P. 28.02, subd. 11.
Kong claims that the issue of how the search was conducted was raised to the
district court because defense counsel argued that the police “did not have enough to pull
1
In a Terry stop, officers may conduct a pat search for weapons, limited to a person’s
outer clothing, if they have reasonable, articulable suspicion the person might be engaged
in criminal activity and they reasonably believe the person is armed. State v. Dickerson,
481 N.W.2d 840, 843 (Minn. 1992).
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[Kong] out of the car and then search him,” and because the district court ruled that the
search of Kong was valid. We disagree. Kong’s suppression motion requested “a
hearing to address the admissibility of all evidence obtained from the seizure of [Kong]
as such seizure was not supported by reasonable articulable suspicion of criminal
activity” and “to address the admissibility of the evidence obtained from the search of
[Kong] as such search was not supported by probable cause.” At the commencement of
the motion hearing, defense counsel stated that suppression motion addressed “basically
the seizure of [Kong’s] vehicle” and whether ordering Kong out of the vehicle and
searching him “was supported by reasonable articulable suspicion or probable cause.”
Defense counsel argued that there was no basis for defendant’s seizure and therefore the
subsequent search was invalid; defense counsel did not argue that the lifting of the shirt
exceeded the scope of a Terry stop. And, Kong raises an alternative theory on appeal that
we conclude the interests of justice do not require us to address.
Moreover, we need not address the validity of the search because the pistol would
have inevitably been discovered had the police first conducted a pat search. The
inevitable discovery doctrine allows the admission of seized evidence “[i]f the state can
establish by a preponderance of the evidence that the fruits of a challenged search
ultimately or inevitably would have been discovered by lawful means.” State v. Diede,
795 N.W.2d 836, 849 (Minn. 2011) (quotation omitted). “If a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass makes its
identity immediately apparent,” the officer may seize the object if it is contraband. State
v. Krenik, 774 N.W.2d 178, 185 (Minn. App. 2009) (quoting Minnesota v. Dickerson,
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508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993)), review denied (Minn. Jan. 27,
2010).
Although the parties dispute how the officers would have actually proceeded had
one of them not lifted Kong’s shirt, Kong concedes that the officers lawfully could have
conducted a warrantless pat search. Cf. State v. Hatton, 389 N.W.2d 229, 234 (Minn.
App. 1986) (holding that illegally-obtained evidence is not admissible under the
inevitable discovery doctrine simply because the officers could have obtained a warrant
prior to the search), review denied (Minn. Aug. 13, 1986). We find no caselaw that
requires testimony about how the officers would have acted had one not lifted Kong’s t-
shirt. And on this record, we can conclude that had the officers conducted a pat search
they would have felt the pistol under Kong’s shirt and been entitled to seize the pistol at
that point.
Affirmed.
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