This opinion will be unpublished and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,
William John Schalker,
September 19, 2000
Mille Lacs County District Court
File No. K2971045
John M. Stuart, Minnesota Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jennifer A. Fahey, Mille Lacs County Attorney, Courthouse Square, 525 2nd Street Southeast, Milaca, MN 56353 (for respondent)
Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant William Schalker challenges his conviction for a controlled substance offense. He argues that a warrantless search of a shed on his property by police was illegal and that his consent to a further police search, after he was told marijuana was found in the shed and that the police would get a warrant if he did not consent, was not valid. We affirm.
After being initially unable to verify reports of a “concerned citizen” that Schalker was growing marijuana on his property, police went to Schalker’s home. They saw what they believed were leafless stalks of a marijuana plant near the house. Through the open door of a shed, they saw 15-20 additional stalks. They then proceeded, without a warrant, to enter and search the shed where they found a marijuana plant. Afterward, they asked Schalker to consent to a search of the rest of the property and told him they could get a warrant if he did not consent. He then consented and they obtained Schalker’s signature on a form stating he consented to a search of his property. During the search, the police found marijuana. Later, the district court rejected Schalker’s argument that the marijuana had to be suppressed as the result of a search made without a valid consent. Schalker appeals the resulting determination that he was guilty of a fifth-degree controlled substance offense.
D E C I S I O N
The question on appeal is whether Schalker’s consent to the search of his property was coerced by the statement of the police that they would obtain a warrant to search his home if he did not give them his consent. The state has the burden of showing the voluntary nature of the consent. State v. Lotton, 527 N.W.2d 840, 843 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).
The supreme court has indicated that (a) consent has to be voluntary or uncoerced, but not necessary intelligent; (b) determining whether consent was voluntary focuses on whether the police acted coercively; (c) whether the police acted coercively is a fact question determined from all relevant circumstances; and (d) therefore the proper standard of review is whether the district court clearly erred. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990). Here, the district court ruled that (a) the police had a legitimate reason for being in a position to observe the leafless marijuana stalks; (b) what the police legally saw on the property combined with the reports of the concerned citizen would allow issuance of a search warrant; and therefore (c) merely informing Schalker that a warrant could be obtained did not rise to the level of coercion.
That the totality of the circumstances includes a statement by the police that they will get a warrant if consent is not forthcoming does not automatically render consent coerced if the police actually had the probable cause necessary to seek a warrant. See State v. Hanley, 363 N.W.2d 735, 739 (Minn. 1985) (where police stated search warrant “would be or could be obtained,” argument that consent was coerced was rejected because, among other reasons, it was “clear from the facts that [the police] had probable cause to support an application for a search warrant”); 3 Wayne R. LaFave, Search and Seizure § 8.2(c), at 653 (3d ed. 1996) (stating “it may generally be said that a threat to obtain a search warrant is likely to be held to invalidate a subsequent consent if there were not then grounds upon which a warrant could issue, and likely not to affect the validity of the consent if the police then had probable cause upon which a warrant could issue”) (footnotes omitted). Thus, whether Schalker’s consent was coerced depends partly on whether the police had probable cause for a search warrant.
In determining whether probable cause is present, the issuing magistrate
“is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). Here, the record shows (a) the police received three reports in about a month-and-a-half asserting Schalker was growing marijuana on his property, including one report by a “concerned citizen” alleging to have seen about 30 marijuana plants on the property; (b) no evidence regarding the veracity or basis of knowledge of the persons making these reports; (c) the police were initially unable to verify the reports in a fly-by and a drive-by; (d) the police went to Schalker’s residence and saw, in plain sight, without entering, what they believed to be mature, leafless marijuana stalks growing in buckets and in a shed; and (e) the officer who initially saw the plants in question is an 18-year member of the police force with experience in drug-related cases who claimed a familiarity with the appearance of marijuana plants.
The officer’s experience as a police officer and in drug-related cases would allow the district court to reasonably infer that the stalks the officer thought were marijuana stalks might be marijuana stalks. See State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (stating appellate court’s job is to “ensure that the issuing judge had a ‘substantial basis’ for concluding that probable cause existed” to issue warrant (quotation omitted)); see also State v. Buchwald, 293 Minn. 74, 81-82, 196 N.W.2d 445, 450 (1972) (affirming experienced officer’s observation of hand-rolled cigarettes and knowledge that suspect’s associates contemporaneously used marijuana on premises constituted probable cause sufficient to allow arrest and search incident to arrest). Additionally, the district court could infer that the stalks’ presence in buckets allowed the plants to be moved, explaining why the police “fly-by” and “drive-by” did not previously locate the plants. That the plants lacked leaves could suggest that those leaves were elsewhere on the property. These facts and inferences support “a common-sense” determination that there was a “fair probability” that contraband or evidence of a crime would be found on Schalker’s property. Thus, we conclude that a search warrant could have been issued and we find no other evidence of coercion. Schalker’s consent to the search was not coerced.
Schalker argues that the record does not address the veracity of the concerned citizen and that the citizen’s reports were stale when the officers went to Schalker’s home. We understand his argument. But when the police were on the property, what they saw, they saw in plain sight and, thus, the state was not required to also prove the credibility of the citizen informant. Also, the freshness and the veracity of the citizen’s statement about seeing 30 marijuana plants at Schalker’s home was partially verified when the officers saw 15-20 marijuana stalks in the shed.
Schalker argues that the state failed to show exigent circumstances justifying a warrantless search. But the police were legally in a position to see the marijuana stalks next to the house and those that could be seen from outside the shed. Therefore, neither a search warrant nor exigent circumstances were required. See State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992) (stating to justify warrantless entry and search of home to make felony arrest state must demonstrate either consent or probable cause and exigent circumstances); State v. Taylor, 590 N.W.2d 155, 157 (Minn. App. 1999) (same), review denied (Minn. May 18, 1999).
 Much of Schalker’s brief challenges the propriety of the search of the shed and the finding, behind a curtain, of a marijuana plant. The district court ruled that aspect of the search illegal. Because the state does not challenge that ruling, we do not address that question.
 Schalker states, in passing, that the Minnesota Constitution provides Minnesota citizens with greater protection than the United States Constitution. Because the analysis above is based on Minnesota authority, we need not address the differences between the degree of protection provided by the state and federal constitutions.