This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-617

State of Minnesota,
Respondent,

vs.

Ramiro NMN Manzanares-Garcia,
Appellant.

Filed February 8, 2000
Reversed
Randall, Judge

Hennepin County District Court
File No. 99003434

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

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Jordan S. Kushner, 636 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the district court's pretrial order denying his motion to suppress the evidence. Appellant asserts that officers unlawfully entered his motel room absent a warrant, exigent circumstances, or consent and asserts that the subsequent pat search of his person violated his constitutional rights. We reverse.

FACTS

Appellant Ramiro Manzanares-Garcia (Garcia) rented a motel room on January 12, 1999. Police were dispatched to Garcia's motel room that evening, after a woman called and stated that a man in the room had assaulted her. Two officers responded and knocked on the door to Garcia's room. Maria Magdolena Benavidez answered the door about a minute later. When officers asked her where the male was, she pointed to a separate bedroom area in the rear of the motel room. The officers entered the room, went straight to Garcia, handcuffed him, and then pat searched him.

One of the officers discovered three rocks of crack cocaine in Garcia's pants pocket and a small amount of powder cocaine in his wallet. Officers recovered $710 in cash from Garcia's wallet and $6,310 from the pocket of a jacket that allegedly belonged to him. Police also searched Benavidez and discovered more than 35 grams of crack and powder cocaine in her pants pocket and $150 in her jacket.

Garcia was charged with a first-degree controlled substance crime. He moved to suppress the evidence, challenging the police entry into his motel room and the subsequent search of his person, his companion, and a jacket in the room. The district court denied Garcia's motion. A jury found Garcia guilty of the charged offense, but the district court granted a defense motion for a judgment of acquittal on the conviction and entered a conviction for a fifth-degree controlled substance crime.

The state appealed the judgment of acquittal, and Garcia cross-appealed, asserting the district court erred by denying his motion to suppress the evidence. The parties subsequently stipulated to dismissal of the state's appeal. This court dismissed the entire appeal but reinstated Garcia's cross-appeal, after determining that the parties did not intend to dismiss the cross-appeal. Garcia is now the appellant, and the state is the respondent.

D E C I S I O N

When reviewing a pretrial decision on a motion to suppress the evidence where the material facts are undisputed, whether the evidence should have been suppressed is a legal question the appellate court reviews de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

I. Warrantless Entry

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. Amend. IV; see also Minn. Const. art. I, § 10 (barring unreasonable searches and seizures). Warrantless searches and seizures of a suspect in his home are per se unreasonable. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984). Hotel room guests are also afforded Fourth Amendment protection from unreasonable searches and seizures. State v. Thomas, 598 N.W.2d 389, 391 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).

The district court here found that the officers' warrantless entry was "appropriate." Although the district court's findings are not completely clear on this point, the parties seemingly agree on appeal that the district court's findings indicate the court's determination that entry was supported by exigent circumstances.

Exigent circumstances are an exception to the warrant requirement. Lohnes, 344 N.W.2d at 610. Examples of exigent circumstances include: hot pursuit, danger to human life, imminent destruction of evidence, and potential flight of a suspect. Id. In determining whether exigent circumstances exist, the court must consider the totality of the circumstances surrounding the entry and seizure and, in so doing, may consider whether (a) a grave offense is involved; (b) the suspect is believed to be armed; (c) there is a clear showing of probable cause to believe the suspect committed the crime; (d) there is strong reason to believe the suspect is inside; (e) there is a likelihood the suspect will escape if not immediately apprehended; and (f) the police entered peaceably despite their lack of consent. Id. at 610-11.

The victim of the alleged assault in this case opened the door when officers knocked. She had no apparent injuries and did not complain of injuries or of being in immediate danger. The officers did not question her at all as to her claimed assault, nor did she volunteer any information to them. Although an "assault" had been reported, after seeing a totally unmarked victim, and after receiving no volunteered information, and after eliciting not one iota of information about Benavidez's telephone call, the officers could not have ascertained, at least at that point, that a "grave offense" had been committed. Further, there was no evidence that a weapon was involved, and nothing to indicate that Garcia was otherwise armed and dangerous. The officers knew that Garcia was inside an inner room because the woman who answered indicated his location. There is no evidence that he posed an immediate flight risk, or even had an outside exit, other than past the officers. The officers' entry was peaceful. They knocked and waited for an answer before entering. Considering the totality of the circumstances, this is not a case involving exigent circumstances.

The state asserts that this court should affirm the district court's decision even if we conclude there were no exigent circumstances because, the state alleges, officers also had consent to enter. It is not clear whether the district court found that Benavidez consented to the officers' entry. The court made no specific findings on consent but in finding that the officers' entry was "appropriate" noted that after Benavidez opened the door, she "directed" police to the back of the room.

Consent to entry is an exception to the warrant requirement. State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998). A third party with common authority over the premises may give consent to police entry. Id. Whether consent was voluntarily given is a question of fact based on all the relevant circumstances. Othoudt, 482 N.W.2d at 222. The state has the burden of demonstrating that consent was given voluntarily. Id. Consent may be given verbally or implied from conduct. Id. A finding of implied consent may be upheld where an individual opens his or her residence's door in response to a knock by police and the individual steps away to permit officers to enter. See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (affirming district court's finding that suspect consented to entry by opening door and stepping back to permit officers' entry); see also State v. Lotton, 527 N.W.2d 840, 844 (Minn. App. 1995) (concluding ten-year-old girl gave implied consent to entry when she informed police of drugs in her family's apartment, rode to apartment with officer and led him into apartment, and opened door when second officer knocked), review denied (Minn. Apr. 18, 1995).

We will agree with the district court that although Benavidez did not verbally consent to the officers' entry, she gave implied consent by her actions. Benavidez requested police assistance by calling and reporting an assault. When officers arrived, she responded to their knock by opening the door. The officers asked her where the male was, and she pointed to the bedroom. One of the officers testified that Benavidez moved out of the way when the officers started into the room.

The district court's finding that entry was "appropriate" can be construed as a finding that the officers had consent to enter, and the evidence supports such a finding. Because consent is an exception to the warrant exception, the district court did not err by finding that the officers lawfully entered the motel room. But a lawful entry does not, without more, make a search of people inside that room lawful.

II. Search and Seizure

Here, the lawful entry into the room was not accompanied by any other evidence that would authorize law enforcement to proceed immediately to a seizure and then a search. A seizure occurs when a reasonable person under the circumstances would not have believed he was free to leave. State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998). Police must have a reasonable, articulable suspicion of criminal activity to make a limited stop or seizure for investigatory purposes. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). Police may demonstrate that they had a reasonable, articulable suspicion by establishing "that the stop was not the product of mere whim, caprice, or idle curiosity." State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

There is no dispute that Garcia was seized when officers handcuffed him. Because police were responding to a reported assault and the person who reported the assault indicated to police that Garcia was her assailant, the officers had a reasonable basis for seizing Garcia. But all seizures, without more, do not automatically lead to a lawful full body search.

After a lawful seizure, an officer may pat search the suspect for weapons if the officer has a reasonable, articulable suspicion that the suspect is armed and dangerous. State v. Harris, 590 N.W.2d 90, 104 (Minn. 1999). The pat search must be a limited search for weapons and not a search for evidence. State v. Gilchrist, 299 N.W.2d 913, 917 (Minn. 1980). If the officer discovers during the search "what he immediately and without further manipulation has probable cause to believe is evidence of a crime," the officer may seize the evidence. Harris, 590 N.W.2d at 104 (citations omitted).

Here, the officers proceeded directly into the inner room where Garcia was and immediately seized him, handcuffed him, and searched him. The officers did not articulate why they believed he was armed and dangerous. They did not testify that Garcia made any "furtive gestures," or that there was any evidence that he had a weapon. See State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding officers did not have reasonable belief driver stopped for traffic violation was armed and dangerous where driver was alone, cooperated, and did not make furtive or evasive movement and officers had no reason to believe driver had criminal history); State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (concluding no circumstances justified search during traffic stop where no bulge in suspect's clothing, no threat to officer, no weapon observed, and no sudden or furtive movements). Instead, the officers testified that Garcia was not violent toward them and did not resist them.[1]

The state makes no attempt to point to any articulable suspicion that Garcia was carrying a weapon or that he was otherwise armed and dangerous. Instead, the state argues that the officers had been called to a reported "assault" and were now in a motel room with the alleged attacker. Although an "assault" was reported, there is no evidence that the alleged assault involved a weapon. Cf. Eggersgluess, 483 N.W.2d at 97 (listing crimes in which suspect would likely be armed and dangerous, including robbery, assault with weapons, and homicide). In fact, the only evidence that there was even an assault is Benavidez’s use of that term in one telephone call. When the officers came into the motel room and were in a direct face-to-face situation with her, the fact that she volunteered absolutely nothing about any claimed assault, and the fact that the officers did not ask her even one simple question[2] about what she claimed to be an assault, does not totally diminish the possibility that an assault may have occurred - but it weakens it. Further, the officers had already handcuffed Garcia, so they had the situation under control. A pat search for weapons cannot be justified solely by "[a]n assumption that weapons might always be present when a law enforcement officer confronts a citizen." Id. Absent probable cause to arrest Garcia for assault (which the state did not assert, and the limited record does not support), the officers did not have a reasonable basis for searching Garcia after they lawfully seized him. Because the officers did not have a reasonable, articulable suspicion that Garcia was armed and dangerous, the pat search was unconstitutional. The district court erred by refusing to suppress the evidence obtained pursuit to this illegal search.

Reversed.

[1] Garcia's counsel questioned one of the officers, "[Manzanares-Garcia] didn't do anything to indicate any threat -- that he was any threat to your safety?" The officer replied, "Correct."

[2] In the usual situation we see, the record reflects that, at a minimum, arresting officers, when their first contact is with the alleged victim, tend to at least ask "what happened" before going on to make tactical decisions as to what to look for, who to look for, and who to arrest. The record does not reflect that even that question was asked here.