This opinion will be unpublished and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

C2-99-1681

 

 

State of Minnesota,
Appellant,

vs.

Earl Lawrence Sanders,
Respondent.

 

Filed March 28, 2000

Affirmed

Peterson, Judge

 

 

Isanti County District Court

File No. K299718

 

 

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

 

 

Jeffrey R. Edblad, Isanti County Attorney, Stoney L. Hiljus, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for appellant)

 

 

Michael F. Cromett, Mary M. McMahon, McMahon Cromett Criminal Defense, PLLP, 2499 Rice Street, Suite 260, Roseville, MN 55113-3724 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            This is a pretrial appeal from an order suppressing evidence and dismissing all charges for lack of probable cause.  Because the state has not shown that the district court clearly and unequivocally erred, we affirm.  

FACTS

            Isanti County Deputy James Johnson was travelling on County Road 7 when he saw a red Oldsmobile Cutlass pulling out of a store parking lot.  The driver looked at Johnson and stopped his car until Johnson drove past.  Johnson noticed that the windshield of the Cutlass was cracked.

            Johnson pulled into a parking lot and turned his squad car around to wait for the Cutlass to drive by so that he could get the license plate number and run a check on it.  A mini-van pulled into the parking lot next to Johnson.  The driver of the mini-van flashed a sheriff’s identification at Johnson and said that the man in the Cutlass was “Earl Sanders and he was revoked.”

            Johnson pulled out of the parking lot behind the Cutlass, and the Cutlass made a sudden right turn into the yard of a residence.  Johnson pulled in behind the Cutlass and approached the driver, who had gotten out of the car.  Johnson asked the driver for his license, and the driver said that he did not have one.  Johnson asked the driver to step to the rear of his vehicle, but the driver turned suddenly and walked toward the residence.  Johnson grabbed the driver’s arm and stated that he was coming with Johnson to the rear of the vehicle.  The driver said that he would go with Johnson.

            The mini-van that had stopped near Johnson arrived on the scene and the two occupants, who were Sherburne County deputies, identified the driver as respondent Earl Lawrence Sanders.  Johnson handcuffed Sanders and ran a check on his driver’s license, which came back as revoked.  Johnson called a towing company to tow Sanders’ car.

            The Sherburne County deputies searched the Cutlass and found a crack pipe and what they suspected was methamphetamine.  A later test confirmed that it was methamphetamine.  BCA drug enforcement officers arrived on the scene and conducted a taped interview of Sanders.  Sanders admitted to having just picked up the drugs and described the person from whom he had obtained the drugs.  Johnson transported Sanders to the Isanti County jail.  Upon arriving at the jail, Johnson asked Sanders if he had insurance on his vehicle, and Sanders replied that he did not.

            Sanders was charged with one count of Felony Controlled Substance Crime in the Fifth Degree (Possession of Methamphetamine) in violation of Minn. Stat. § 152.025, subd. 2(1) (1998), one count of Misdemeanor Driving After Revocation in violation of Minn. Stat. § 171.24, subd. 2 (1998), and one count of Misdemeanor No Insurance in violation of Minn. Stat. § 169.797, subds. 2 and 3 (1998).

            Sanders moved to suppress the evidence seized during the search of the Cutlass and the statements he made after his arrest.  The district court granted the suppression motion and dismissed the case for lack of probable cause.

D E C I S I O N

            A reviewing court may reverse a district court’s pretrial order only if the state shows clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Joon Kyu Kim, 398 N.W.2d  544, 547 (Minn. 1987).  There is no dispute that the critical impact requirement is met.

            The district court granted Sanders’ motion to suppress all evidence gathered during the warrantless search of the Cutlass and all evidence gathered as a result of Sanders’ arrest, together with any evidence derived from the search or the arrest, as violating Minn. R. Crim. P. 6.01, subd. 1(1)(a), which states:

Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.  The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention.  If the defendant is detained, the officer shall report to the court the reasons for the detention.  Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued.

 

The state argues that the district court erred because (1) Minn. R. Crim P. 6.01, subd. 1(a)(1) provides discretionary authority for a peace officer to arrest a misdemeanant without a warrant and (2) Minn. Stat. § 629.34, subd. 1(c)(1) (1998), grants discretionary authority to a police officer to arrest without a warrant when a public offense has been committed in the officer’s presence.  The state also argues that because Sanders’ arrest was proper, the search of the Cutlass was a proper search incident to arrest.

The decision of this court in State v. Richmond, 602 N.W.2d 647 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000), controls our decision in this case.  In Richmond, which was a pretrial appeal from an order suppressing evidence seized during a search following a traffic stop, the state argued that the search was valid because, before the search, Richmond could have been arrested for careless driving.  Id. at 652-53.  This court acknowledged the arrest authority granted by Minn. Stat. § 629.34, subd. 1(c)(1), and Minn. R. Crim P. 6.01, subd. 1(1)(a), and concluded that there was no probable cause to arrest based on the careless driving because there was

no evidence arising from Richmond’s alleged violation of a traffic law that:  (1) an arrest was necessary to prevent bodily harm or further criminal conduct; or (2) there was a likelihood Richmond would fail to respond to the traffic citation.

 

Id. at 653.

            This appears to be the same conclusion reached by the district court in this case.  Although the district court order does not include a memorandum explaining the court’s reasoning, the order explicitly states that Sanders’ suppression motion based on a violation of rule 6.01, subd. 1(1)(a), is granted.  We understand the order to mean that Sanders’ arrest did not provide a basis for searching his automobile or interrogating him because the requirements of rule 6.01, subd. 1(1)(a), were not met, and, therefore, there was not probable cause to make an arrest for a misdemeanor driving offense.

The state argues that Sanders’ arrest was justified because he walked away from Johnson when he was stopped, which indicated that he would probably fail to respond to a citation.  But a defendant’s lack of cooperation with police does not support a likelihood that he will fail to respond to a traffic citation.  Richmond, 602 N.W.2d at 653.  The record reflects: (1) Sanders walked away from Johnson but cooperated once Johnson stopped him; and (2) Johnson had no information that Sanders had previously failed to respond to citations. 

            The state also argues that Sanders’ arrest was necessary to prevent further criminal conduct, specifically, driving after revocation and obstructing arrest.  However, the record demonstrates that: (1) Sanders pulled into the yard of a residence; (2) Johnson did not know whether Sanders lived in the residence or had another reason for being there; (3) Johnson did not ask Sanders if it was his residence; and (4) Johnson made no attempt to check the address of the residence against Sanders’ address.  The state also contends that Sanders tried to evade Johnson and avoid arrest by going to the house when he was stopped.  But the record demonstrates that although Sanders turned and headed toward the house when Johnson asked him to step to the rear of his vehicle, Sanders cooperated after Johnson grabbed his arm.

            Warrantless searches are per se unreasonable unless an exception applies.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  If an officer has probable cause to arrest an occupant of a vehicle, the officer can search the vehicle incident to the arrest.  New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  Because Sanders’ arrest was unlawful, there was not a valid search incident to his arrest, and the evidence found during the search of his vehicle must be suppressed as “fruit of the poisonous tree.”  See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963) (when police act illegally, evidence obtained by exploitation of the illegality must be suppressed).

The district court did not unequivocally err by finding Sanders’ arrest unlawful and suppressing the evidence found in Sanders’ car and statements he made after the arrest.  

Affirmed.