MN: Search was valid as a protective frisk even though it was raised for first time on appeal

The court of appeals adopts an alternative ground for a search raised for the first time on appeal finding the record sufficient to make a determination. Defendant was awakened on a couch, handcuffed, and frisked for a weapon. The state proceeded at the suppression hearing on a community caretaking function search. “On appeal, the state argues, for the first time, that the search was a valid Terry protective frisk. State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (‘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.’).” Ries v. State, 2016 Minn. App. LEXIS 89 (Dec. 19, 2016). Comment: Defense counsel’s job on appeal is to assert, if true, why the record is not sufficient to decide an alternative argument and be specific. What questions were not pursued because the state didn’t raise this before? Look also to express waiver of the argument now relied upon. Don’t give away an alternative argument if the suppression hearing was specific and to the point where it can be argued that the defense was lulled by the state not raising it in the trial court.