This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-479

State of Minnesota,
Respondent,

vs.

Tina Marie Huro,
Appellant.

Filed February 8, 2000
Affirmed
Amundson, Judge

Ramsey County District Court
File No. K9-97-1412

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55101 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges her conviction for fifth-degree controlled substance offense (possession of methamphetamine), arguing that the district court erred in finding that the search of her person and vehicle was valid as a search incident to arrest, and that her consent to search was voluntary, rather than mere acquiescence to a show of police authority. We affirm.

FACTS

On May 2, 1997, appellant Tina Marie Huro was charged with one count of fifth-degree violation of controlled substance law, in violation of Minn. Stat. ß 152.025, subd. 2(1) (1996). The following facts are taken from the transcript of the contested omnibus hearing.

During the late evening hours of April 30, 1997, Officer Jason Brubaker was on patrol with Officer John Buchmeier, his field-training officer, in a marked squad car. Shortly after 11:00 p.m., they stopped a vehicle which did not have a front license plate, in violation of Minn. Stat. ß 169.79 (1996). Officer Buchmeier stood near the rear passenger door of the vehicle, observing, while Officer Brubaker approached the driver, the vehicleís sole occupant.

Officer Brubaker asked the driver for her license, identified the driver as Huro, and then ran a warrant check, discovering that she had an outstanding warrant for no proof of insurance. He then returned to Huroís vehicle and told her of the warrant.

At that point, Officer Brubaker explained to Huro that they were in a high crime/narcotics area and asked for consent to search her vehicle and her person. The wording he used was, "Do you mind if I search your vehicle and your person?" Huro replied, "no," then stepped out of her vehicle. Huro told the officers that she was embarrassed at being searched so close to her home, only a block away. Due to Huroís concern that no female officer was present to conduct the search, the officers told her that she could remove the items from her pockets herself.

Officer Buchmeier opened a cigarette package that Huro removed from her pocket, finding a small marijuana joint. He then searched Huroís purse, which was on the driverís seat of the car, finding more marijuana and a small bindle of what later tested to be methamphetamine. Huro was arrested and booked on both the possession and no proof of insurance counts. Although Officer Brubaker had primary contact with the driver, Officer Buchmeier heard Huro grant consent to search. Since Officer Brubaker was in training, they had previously discussed the form of the question and Officer Brubaker was told to ask the question in the same manner whenever consent to search was requested. However, Officer Buchmeier believed that the driverís license check was not run until after Huroís arrest.

Following the hearing, Huroís motion to suppress evidence was denied. She entered a guilty plea, preserving the suppression issues for appeal, in accordance with the procedures described in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). At the sentencing hearing, the district court stayed the imposition of Huroís sentence for five years, conditioned on completion of 100 hours of community service and payment of a $50.00 fine. Huro challenges the district courtís suppression ruling.

D E C I S I O N

This court reviews a district courtís findings of fact bearing on a motion to suppress evidence on Fourth Amendment grounds under a "clearly erroneous" standard. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). We "independently review the facts and determine, as a matter of law," whether the district court erred in denying suppression of the evidence. State v. Outhoudt, 482 N.W.2d 218, 221 (Minn. 1992)

I. Search Incident to Arrest

Huro argues that the district court erred when it found that the search of her person and vehicle were valid as a search incident to arrest because the facts regarding the timing of the warrant check were in dispute.

A search incident to arrest is valid by itself and requires no further justification. State v. Varnado, 582 N.W.2d 886, 892 (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. at 467 (1973)). Generally, if an officer observes a violation of a traffic law, even if insignificant, the violation gives the officer an objective basis for stopping the vehicle. George, 557 N.W.2d at 578. Here, Huroís failure to have a front license plate provided a valid reason for the stop. However, such a violation is only a petty misdemeanor, and a search incident to arrest can only be performed where the probable cause to arrest relates to a crime for which custodial arrest is authorized. Varnado, 582 N.W.2d at 892 (citing Robinson, 414 U.S. at 235, 94 S. Ct. at 467). Therefore, if the search at issue is a valid search incident to arrest, it must be incident to Huroís arrest on the warrant for no proof of insurance. Officer Brubaker testified that he ran the check on Huroís driverís license before he asked for consent to search, but Officer Buchmeier testified that the license check occurred at the end of the stop, after Huro had been arrested. Huro testified that she sat in the car for five minutes before the police asked to see her driverís license, and that Officer Brubakerís first comment was, "Does he have insurance on the car yet?" She replied, "He better." The district court found that Huroís testimony supported Officer Brubakerís recollection that he learned of the active warrant before he asked if he could search.

The fact that two officers testify differently at an omnibus hearing, and the district court finds that one is more credible than the other, "does not make the district courtís findings anywhere near clearly erroneous." State v. Fisher, 588 N.W.2d 515, 517 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999).

Because Officer Brubaker was the officer who approached the vehicle and handled the arrest, and his testimony is corroborated by Huro, we conclude that the district court did not err by relying on his testimony in finding that the search was valid as incident to arrest.

Affirmed.