This opinion will be unpublished and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
State of Minnesota,
Christopher Eugene Vonesh,
Filed March 28, 2000
Wilkin County District Court
File No. K398000042
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Timothy E.J. Fox, Wilkin County Attorney, P.O. Box 214, Breckenridge, MN 56520 (for respondent)
Todd J. Chrzanowski, 305 South 4th Street, Grand Forks, ND 58201; Rebecca Jo Heigaard McGurran, 321 Kittson Avenue, P.O. Box 5235, Grand Forks, ND 58206 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Christopher Eugene Vonesh challenges his conviction of first-degree controlled substance crime, arguing that officers who entered his apartment did not have valid consent to search the apartment and that the search of his closet was beyond the scope of the alleged consent. We affirm.
At approximately 10:22 p.m. on February 12, 1998, Officers Natalie Butenhoff and Roger Ronan of the Breckenridge Police Department were dispatched to appellant’s apartment because of a loud-noise complaint. The district court found that (1) upon entering the apartment complex, the officers saw a young woman with a can of beer run into appellant’s apartment; (2) before entering appellant’s apartment, Officer Ronan asked for the tenant; (3) appellant stepped forward as the tenant; (4) Officer Butenhoff explained that they were dispatched because of a loud-noise complaint and, smelling the odor of alcohol, asked if she could search the apartment for underage persons consuming alcohol; (5) appellant consented to the search; (6) Officer Butenhoff opened the double doors of a bedroom closet; (7) Officer Butenhoff observed a large comforter draped over “some objects” on the floor of the closet; (8) Officer Butenhoff pulled the comforter away and found “an aquarium with mushrooms inside, a fan, a drying pan with mushrooms on it, and a cooler with a boxlike container on top of it”; and (9) Officer Butenhoff seized the mushrooms and the items associated with the growing of mushrooms.
Appellant was charged with first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 1(3) (Supp. 1997). Appellant moved to suppress the evidence seized, arguing that he did not consent to the search. After the district court denied appellant’s motion to suppress, appellant waived his right to a jury trial and stipulated to the state’s case pursuant to the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (stating that defendant may plead guilty while preserving right to appeal district court’s pretrial order denying motion to suppress). This appeal followed.
Appellant argues that the officers’ entry into his apartment was unreasonable. Both the United States and Minnesota Constitutions proscribe unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are unreasonable unless an exception to the search-warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). To justify the warrantless entry and search of a home, the state must show the existence of either consent or probable cause and exigent circumstances. See State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996). If such an entry is made without either consent or probable cause and exigent circumstances, any evidence seized from the premises must be suppressed. Id.
The district court found that the officers obtained consent before entering the apartment. Appellant argues that the officers did not seek consent until after their “constructive entry” into the apartment. This court will not reverse the district court’s factual findings unless they are clearly erroneous. State v. Buchanan, 431 N.W.2d 542, 552 (Minn. 1988). A finding is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).
Appellant submitted an affidavit to the district court in which he stated, “[T]he police entered my apartment without my consent.” Additionally, appellant offered Jason Rudd’s affidavit, which stated that the police entered appellant’s apartment without speaking to appellant first and that the police spent several minutes inside the apartment before asking for the tenant.
The state offered the testimony of both officers. Officer Ronan testified that neither officer entered the apartment before appellant consented. And both officers testified that Officer Butenhoff asked if she could come in and appellant said that she could. The district court found the officers’ testimony more credible than appellant’s and Rudd’s affidavits. And this court must give due regard to the district court’s opportunity to judge witness credibility. See State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997). We conclude that the district court did not clearly err in finding that the officers had appellant’s consent before entering his apartment.
Appellant also argues that because underage consumption of alcohol is a “minor” offense, it did not justify the warrantless entry into appellant’s apartment. Appellant cites Welsh v. Wisconsin, 466 U.S. 740, 753 (1984), for the proposition that the severity of the underlying offense is an important factor to be considered in determining whether exigent circumstances exist to justify a warrantless entry. But the state need only show either consent or probable cause and exigent circumstances. Because the state showed that the officers had consent to enter the apartment, the severity of the underlying offense as it relates to the presence of exigent circumstances is irrelevant.
Next, appellant argues that even if this court finds that he consented to the search, he only consented to a limited search of his apartment for people. Appellant contends that the scope of his consent did not include the right to search under the comforter in the closet.
Once consent is given to enter a premises, the police conduct is limited by the scope of the consent given. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991) (stating that the standard for measuring the scope of a suspect’s consent is that of objective reasonableness--“what would the typical reasonable person have understood by the exchange between the officer and the suspect”). It is well established that a lawful search extends to the entire area in which the object of the search may be found. United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 2170-71 (1982); United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994) (holding scope of consent to search for person includes any area large enough to accommodate that person, including search under blanket in closet). Therefore, if a person could have been hiding under the comforter, Officer Butenhoff’s search there was reasonable.
Officer Butenhoff testified that she obtained appellant’s consent to search for underage persons consuming alcohol. Appellant concedes that if he consented to such a search, it was proper for Officer Butenhoff to open the closet doors to look for people. But, appellant argues, once Officer Butenhoff saw no people in the closet, she had reached the limits of appellant’s consent. Appellant claims that it was not reasonable for Officer Butenhoff to believe that people were hiding under the comforter because she testified that (1) there was no movement or sound under the comforter; (2) the dimensions of the object that turned out to be the aquarium were only about 12 inches by 14 inches by 3 feet; and (3) she agreed that only a small child or infant could fit into the aquarium. But Officer Butenhoff also testified that the queen- or king-sized comforter was completely unfolded and draped over what appeared to be two large objects and that the comforter looked as if it could cover a person who was bent over.
The district court’s finding that Officer Butenhoff reasonably believed that a person could be found under the comforter was not clearly erroneous. Therefore, the search under the comforter was lawful.