This opinion is nonprecedential except as provided by
                         Minn. R. Civ. App. P. 136.01, subd. 1(c).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A23-1306

                                    State of Minnesota,
                                         Appellant,

                                             vs.

                                        Paul Xiong,
                                        Respondent.

                                   Filed April 1, 2024
                                 Reversed and remanded
                                 Smith, Tracy M., Judge

                               Ramsey County District Court
                                 File No. 62-CR-22-1296

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul,
Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

       Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and

Bratvold, Judge.

                           NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge

       In this pretrial prosecution appeal, appellant State of Minnesota argues that the

district court erred for two reasons when it suppressed evidence of a firearm found in

respondent Paul Xiong’s vehicle. First, the state contends that the district court erroneously
concluded that law enforcement officers conducted an unlawful search of Xiong’s vehicle

by visually inspecting the interior of the vehicle through the driver’s side window without

reasonable, articulable suspicion. Second, the state contends that the district court

erroneously concluded that the plain-view exception to the warrant requirement did not

justify the seizure of the firearm observed in the vehicle. Because we conclude that the

officers did not conduct an unlawful search of Xiong’s vehicle and that the elements of the

plain-view exception are established, we reverse and remand.

                                         FACTS

       The facts below are taken from testimony and exhibits presented during the

suppression hearing as well as from other documents in the district court and appellate

records.

Initial Investigation and Search Warrant

       An officer assigned to Ramsey County’s violent crime enforcement team (VCET)

received a tip from an informant that Xiong’s brother was trafficking methamphetamine.

For several weeks thereafter, VCET officers regularly conducted surveillance of Xiong’s

brother’s house.

       While surveilling the house, officers often observed a black Hummer slowly circling

the block. Officers looked up the Hummer’s license plate number and discovered that

Xiong was the registered owner. Officers searched Xiong’s criminal history and found that

he had several convictions. Relevant to this appeal, officers discovered that Xiong had a

prior conviction for felony domestic abuse—which officers knew rendered Xiong

ineligible to possess a firearm—and a prior conviction for fifth-degree drug possession.


                                            2
       On multiple occasions during their surveillance, officers observed the following

conduct involving the Hummer. The Hummer would pull into Xiong’s brother’s driveway,

back out, drive around, and pull up next to the officers’ vehicles, and the driver would look

at the officers. According to VCET Officer Garland, this driving conduct was suggestive

of “counter surveillance.” When the Hummer pulled up to the officers’ vehicles, officers

saw the driver’s face and observed that it matched the photo of the Hummer’s registered

owner, Xiong.

       Officers obtained a search warrant for Xiong’s brother’s home. The search warrant

did not identify Xiong’s person, his vehicle, or his residence as places or objects to be

searched or seized.

Execution of the Search Warrant

       Officers executed the search warrant on the brother’s home. Before execution of the

warrant, Officer Garland witnessed Xiong’s brother drive away in his truck in tandem with

another vehicle. An officer followed the two cars to conduct a traffic stop.

       Officer Garland also observed Xiong’s Hummer leave Xiong’s residence—which

was across the street and a few houses down from his brother’s house—and start to slowly

circle the block. Officer Garland then departed the scene to assist at the traffic stop.

       Xiong returned from circling the block and parked his vehicle on the street, outside

his house. VCET Officer Amberg observed Xiong exit the vehicle and walk across the

street to his brother’s house. Officer Amberg detained Xiong on the front lawn of the

brother’s home to secure the scene during execution of the warrant. Thereafter, officers

began to search the brother’s home.


                                              3
       After officers’ initial breach of the home, officers “cleared” the brother’s house and

garage to ensure they were safe. VCET Officer Mooney then went across the street to clear

Xiong’s vehicle. Specifically, Officer Mooney wanted to make sure that no one was inside

the vehicle who could be a threat. When Officer Mooney looked through the driver’s side

window into the vehicle, he saw the butt of a pistol in the front passenger seat area. He did

not open the door to look inside the vehicle, and he did not have to touch or move anything

to see the firearm.

       Officer Garland returned to the scene and, after the house was secure, he started

taking pictures. Officer Garland was informed that there was a firearm in Xiong’s Hummer,

and he left the house to process the scene at the vehicle. He did not move anything to view

the firearm, and he was able to see it through the window. Officer Garland took photos of

the firearm in the vehicle, and he also took photos of the firearm after retrieving it from the

vehicle. The firearm had a loaded magazine in it.

Charges and Suppression Motion

       The state charged Xiong with possession of a firearm as an ineligible person in

violation of Minnesota Statutes section 624.713, subdivision 1(2) (2020).

       Xiong moved to suppress all evidence discovered “during the stop and search of his

person and vehicle,” arguing that officers “illegally detain[ed] him without reasonable

suspicion, illegally search[ed] his vehicle without a warrant, and fail[ed] to videorecord the

search of his vehicle.” Following a suppression hearing, the district court issued an order

granting Xiong’s motion.




                                              4
Appellate History

       The state appealed the district court’s pretrial order. Xiong moved to dismiss the

appeal for the state’s failure to include a description of the critical impact in its statement

of the case. The state filed a response and motion to accept an amended statement of the

case that included the critical impact. A special term panel of this court denied Xiong’s

motion to dismiss and ordered the state’s amended statement of the case filed. After the

deadline to file a cross-appeal had passed, Xiong filed a motion to accept late notice of

cross-appeal, seeking to challenge the district court’s ruling that his initial detention was

lawful. A special term panel of this court denied Xiong’s motion to accept a late notice of

cross-appeal.

                                         DECISION

       The state argues that the district court erred by granting Xiong’s suppression motion

because the district court erroneously concluded that (1) officers conducted an unlawful

warrantless search of Xiong’s vehicle when officers looked through its window and (2) the

plain-view exception to the warrant requirement did not apply to the officers’ seizure of

the firearm. 1



1
  Xiong does not dispute that the state has satisfied the threshold requirement of showing
that the district court’s order will have a critical impact on its ability to prosecute the case.
See State v. Scott, 

 (Minn. 1998) (explaining that critical impact is
required). The evidence that was suppressed—the firearm recovered from Xiong’s
vehicle—is the basis for the charge against him. As a result, the district court’s suppression
order will have a critical impact on the state’s ability to prosecute Xiong. See State v. Robb,

 (Minn. 2000) (concluding that the suppression of a firearm in a charge
of unlawful possession of a firearm would have a critical impact on the outcome of the
trial).

                                               5
       “[U]nreasonable searches and seizures” are prohibited by the United States and

Minnesota Constitutions. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Evidence

obtained during an unconstitutional search or seizure must be suppressed. See State v.

Diede, 

 (Minn. 2011). When reviewing a district court’s decision on

a pretrial motion to suppress evidence, appellate courts review the district court’s factual

findings for clear error and its legal determinations de novo. State v. Bourke, 

 (Minn. 2006).

I.     The district court erred by concluding that officers conducted an unlawful
       search of Xiong’s vehicle.

       The district court concluded that officers conducted an unlawful search of Xiong’s

vehicle when they peered into his vehicle through a window because officers did not have

reasonable, articulable suspicion of wrongdoing to justify expanding the seizure of Xiong

to search his vehicle. The state argues that the district court erred because officers did not

conduct a search of Xiong’s vehicle by merely peering into it and thus did not need

reasonable, articulable suspicion of wrongdoing. We agree with the state.

       A search occurs for Fourth Amendment purposes (1) “when the government

physically intrudes onto a constitutionally protected area” or (2) “when the government

intrudes upon a person’s reasonable expectation of privacy.” State v. Edstrom, 

 (Minn. 2018). “Warrantless searches are presumptively unreasonable unless one

of ‘a few specifically established and well-delineated exceptions’ applies.” State v. Licari,

 (Minn. 2003) (quoting Katz v. United States, 

(1967)).



                                              6
       The district court concluded that officers conducted an unconstitutional warrantless

search of Xiong’s vehicle when they peered into it. The district court reached that

conclusion by applying the law that applies to traffic stops. Under that law, the district

court reasoned, because Xiong was detained, officers needed reasonable, articulable

suspicion of wrongdoing before the stop could be expanded to include a search of his

vehicle.

       The district court’s analysis, however, does not comport with the well-established

principle that officers do not need reasonable suspicion or probable cause to merely look

into a vehicle that is voluntarily parked in an area where officers have a right to be. In State

v. Vohnoutka, an officer approached a voluntarily stopped car that was parked in a closed

service station. 

 (Minn. 1980). The officer shined a flashlight into the

car’s passenger compartment, saw suspected marijuana in plain view, and then searched

the car and discovered marijuana and hashish. 

 The district court suppressed the evidence

on the basis that the flashlight-aided check of the car’s passenger compartment was a

warrantless search conducted without probable cause. 

 The supreme court reversed,

concluding that the flashlight-aided check was not an unconstitutional search because the

officer had not stopped or otherwise temporarily seized the car, and they had a right to be

where they were when they looked through the window into the passenger compartment.

       Similarly, here, officers did not engage in an unlawful intrusion into Xiong’s

privacy when they looked through the window of Xiong’s vehicle. Xiong had voluntarily

parked his vehicle on a public street and left it; his vehicle had not been stopped by law


                                               7
enforcement officers. It is true that Xiong was detained at his brother’s residence, but

officers lawfully detained Xiong because they were executing a search warrant there. 2

Officers also sought to clear the Hummer to ensure safety during execution of the warrant.

They approached the vehicle on a public street, looked through the vehicle’s window, and,

without touching or moving anything, saw a firearm in plain view. Under Vohnoutka, this

conduct did not constitute a search. See also State v. Alesso, 

 (Minn.



2
  We note that, in his brief, Xiong attempts to challenge the district court’s ruling that his
seizure and detention were lawful. But the question of whether Xiong was lawfully seized
and detained is outside the scope of this appeal. Xiong failed to raise this issue by timely
filing a notice of cross-appeal. See Minn. R. Crim. P. 28.04, subd. 3 (requiring a defendant
who wants to “obtain review of any adverse pretrial” ruling to file “a notice of cross-appeal
. . . within 10 days after the prosecutor serves notice of the appeal”). After the deadline had
passed, he filed a motion to accept a late notice of cross-appeal to challenge the district
court’s ruling. A special term panel concluded that Xiong failed to establish good cause for
an extension of the deadline to file and denied the motion. Xiong nevertheless argues that
the issue is properly before us, citing State v. Grunig, 

 (Minn. 2003). In
Grunig, the supreme court stated that, even without filing a cross-appeal, “[a] respondent
can raise alternative arguments on appeal in defense of the underlying decision when there
are sufficient facts in the record for the appellate court to consider the alternative theories,
there is legal support for the arguments, and the alternative grounds would not expand the
relief previously granted.” 

. Xiong’s reliance on Grunig is misplaced.
In Grunig, the issue was whether the respondent-state had waived an argument not made
in the district court. 

. Further, the state had no right to file a cross-appeal in
Grunig’s appeal from his conviction. Compare Minn. R. Crim. P. 28.02, subd. 2 (providing
rules for appeal as of right by a defendant), with Minn. R. Crim. P. 28.04 (providing rules
for pretrial appeals by the state). Here, unlike in Grunig, Xiong made the same argument
to the district court and the district court ruled adversely on that argument. Additionally,
rule 28.04 is an exception to the general rule that a defendant has no right to pretrial review
of an adverse ruling in a criminal case, and Xiong failed to comply with the rule. Further,
this is not an issue of waiver because Xiong will have another chance to challenge the
adverse ruling in a future appeal from conviction should that occur. We therefore conclude
that Grunig does not enable Xiong to obtain review of an adverse pretrial ruling without
following the only rule entitling him to pretrial review. Xiong has failed to show how this
court may reconsider the district court’s decision that he was lawfully detained. Therefore,
we decline to address the issue.

                                               8
1982) (“In numerous cases we have upheld against fourth amendment challenge the

practice of police officers routinely shining flashlights into automobiles, the only exception

being when the officers unlawfully acquire their position vis-à-vis the vehicles, as when

they unlawfully stop cars.”). Officers therefore did not need reasonable, articulable

suspicion of wrongdoing to peer inside Xiong’s parked vehicle on the street.

       As a result, the district court’s legal conclusion that officers conducted an unlawful

search by looking into Xiong’s vehicle without reasonable, articulable suspicion of

wrongdoing is erroneous. 3

II.    The district court erred by concluding that the plain-view exception to the
       warrant requirement did not apply to the seizure of the firearm.

       The state argues that the district court also erred by concluding that the plain-view

exception did not apply to justify the warrantless seizure of the firearm in Xiong’s vehicle.

The state contends that the district court misapplied the law by essentially requiring an

“inadvertent discovery” element that is not recognized as part of the plain-view exception.

It asserts that, when the three actual elements of the plain-view exception are applied, the

exception was met and justified the warrantless seizure of the firearm.

       The state contends that the district court functionally imposed an inadvertent-

discovery requirement when it twice observed that the officers “targeted” Xiong’s vehicle

and wrote that this was not “a situation where an officer was merely walking on the

sidewalk or on the street and happened to see a handgun in a random vehicle.” As the state


3
  Because we conclude that officers did not conduct a search by peering into Xiong’s
vehicle, we need not address the state’s alternative argument that, even if reasonable
suspicion were required, the officers had it.

                                              9
observes, the United States Supreme Court wrote in 1990 that “even though inadvertence

is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition.”

Horton v. California, 

 (1990). And recent caselaw from the Minnesota

Supreme Court does not identify inadvertence as a necessary factor in the plain-view

analysis. Rather, as expressed in State v. Milton, the plain-view exception has three

elements: “(1) the police are legitimately in the position from which they view the object;

(2) they have a lawful right of access to the object; and (3) the object’s incriminating nature

is immediately apparent.” 

 (Minn. 2012) (quotation omitted); see

also, e.g., State v. Chute, 

, 583 n.2 (Minn. 2018) (identifying the same

three elements). Because inadvertence is not a factor, whether the officers “targeted”

Xiong’s vehicle is not a relevant consideration.

       The state contends that, when the three proper elements are applied, the plain-view

exception was established. We agree. First, the officers were standing on a public street,

next to Xiong’s voluntarily parked car, and thus were legitimately in the position from

which they viewed the firearm. See Vohnoutka, 

. Second, the officers

had a lawful right of access to the object under the automobile exception because, upon

observing the firearm, they had probable cause to believe contraband was in the vehicle.

See State v. Flowers, 

 (Minn. 2007) (“When probable cause exists to

believe that a vehicle contains contraband, the Fourth Amendment permits the police to

search the vehicle without a warrant.”); State v. Munoz, 

 (Minn. App.

1986) (“Upon observing evidence in plain view, a warrantless search of the remainder of

the passenger compartment is justified.”). Finally, the incriminating nature of the firearm


                                              10
was immediately apparent because officers immediately recognized the object as a firearm

and knew that Xiong was prohibited from possessing a firearm. We therefore conclude that

the district court erred by determining that the plain-view exception to the warrant

requirement did not justify the warrantless seizure of the firearm.

       For these reasons, we reverse the district court’s suppression order and remand for

further proceedings. 4

       Reversed and remanded.




4
  We note that, in the district court, Xiong advanced another argument for why the firearm
should be suppressed. He contended that, under State v. Scales, 

 (Minn.
1994), the firearm must be suppressed because the search of his vehicle was not video
recorded. The district court did not address Xiong’s Scales argument because it suppressed
the evidence on constitutional grounds. On remand of this case, the district court should
address Xiong’s Scales argument should he still pursue it.

                                             11