This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Michael Anthony Crea,
Ramsey County District Court
File No. K8992801
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Dan K. Nelson, Peterson & Nelson Law Office, 871 East Seventh Street, St. Paul, MN 55106 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.
In this appeal from a conviction of fifth-degree controlled substance crime, appellant Michael Anthony Crea argues that evidence seized from his person was discovered during a search that exceeded the scope of his consent and, therefore, should have been suppressed. We affirm.
While on patrol at about 8:20 p.m., St. Paul police officers Robert Merrill and Dean Koehnen saw a vehicle go through a stop sign at an intersection. The officers stopped the vehicle. Crea was the driver. As the officers approached Crea, he was swearing and appeared to be nervous and upset, fidgeting with his hands and licking his lips. Based on his experience, Merrill thought the situation seemed more serious than a routine traffic stop.
Crea explained to the officers that he had a restricted driver’s license and was not supposed to be driving after 7:30 p.m. Koehnen asked Crea to get out of his vehicle and go and stand behind it, where he would be out of the traffic lane. When Koehnen asked to see Crea’s driver’s license, Crea presented his Minnesota picture identification card. Koehnen then asked Crea if he had anything illegal or dangerous. Crea hesitated, replied that he did not, but then pointed toward a tool sheath on his belt.
There was conflicting evidence as to what occurred next. The officers testified that Koehnen asked Crea if he would consent to a search for anything illegal or dangerous, and Crea replied “go ahead.” Koehnen testified that he then instructed Crea to place his hands on his head, removed a plier-tool from the sheath on Crea’s belt, gave the tool to Merrill, and continued to search Crea. Crea testified that Koehnen instructed him to place his hands on his head, asked to see the tool in Crea’s tool sheath, and Crea said, “Go ahead.” According to Crea, Koehnen then asked if he could search further and proceeded to search Crea’s pants pockets without receiving any response from Crea. Crea claims that he tried to move his hand when Koehnen began to search his pockets, but Koehnen told him to keep his hands on his head. Crea did not otherwise object to the search.
Koehnen felt a lump in Crea’s right front coin pocket and removed what the officers recognized as a bindle, a paper packet commonly used for narcotics. Koehnen found a second bindle in Crea’s larger right front pants pocket. Both bindles contained a whitish-tan substance, which the officers suspected was a controlled substance. The substance was later analyzed and determined to be methamphetamine.
Crea was charged by complaint with one count of fifth-degree controlled substance crime in violation of Minn. Stat. § 152.025, subd. 2(1) (1998). Crea moved to suppress the methamphetamine, arguing that the scope of the search exceeded his consent. Following an omnibus hearing, the district court denied the motion. The omnibus court found:
4. * * * [P]olice asked [Crea] if he had any weapons or anything illegal in his possession, and [Crea] replied in the negative.
5. After identifying the tool to police, [Crea] was asked if he would consent to a search of his person, and [Crea] gave permission and was searched. Although [Crea] asserts that he consented only to an inspection of the pouch or sheath attached to his belt, he agrees that he cooperated with police in assuming a “search stance” and that he never objected when the search went past an examination of the item attached to his belt.
6. [Crea’s] assertion that he only gave consent to the search of the item attached to his belt is not credible.
Crea waived his right to a jury trial and stipulated that the district court could determine his guilt based on the testimony at the omnibus hearing, his statements to police, police reports, laboratory reports, and criminal history. The district court found Crea guilty as charged.
This court will not reverse the district court’s findings of fact unless they are clearly erroneous. State v. Shellito, 594 N.W.2d 182, 185-86 (Minn. App. 1999). Once the facts have been established, the validity of a search is a question of law subject to de novo review. See State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (when a constitutional question is presented, appellate court independently reviews facts to determine reasonableness of police officer’s actions).
The police do not need probable cause or, in proper circumstances, reasonable articulable suspicion to search if a person voluntarily consents to an officer’s request to search his person and his belongings. However, “an officer has a right to ask to search and an individual has the right to say no.”
[I]nvoluntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned. Rather, it is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment intervenes. Consent must be received, not extracted.
Whether consent was voluntary is determined by examining “the totality of the circumstances, including the nature of the encounter, the kind of person the defendant is, and what was said and how it was said.” The state bears the burden of showing by a preponderance of the evidence that consent was voluntarily obtained. The determination involves balancing the government’s legitimate need to search against the requirement that consent not be coerced.
State v. Harris, 590 N.W.2d 90, 102-03 (Minn. 1999) (citations omitted)(quoting State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)).
Minnesota has not adopted the position “that the concept of voluntary consent ought to be deemed meaningless in the context of a so-called consensual * * * police-citizen contact, e.g., when an officer is effecting a routine traffic stop,” but rather demands “sufficient proof in an individual case that the consent to search was truly express, clear and voluntary.” State v. George, 557 N.W.2d 575, 580 (Minn. 1997).
Crea argues that Koehnen misrepresented to him that the purpose of the search was only to search for weapons. But the officers testified that Koehnen asked if he could search for anything “illegal or dangerous.” The district court found incredible Crea’s claim that he only consented to a search of the item attached to his belt. The officers’ testimony indicates that they did not engage in any coercive conduct before obtaining Crea’s consent to search. Although Koehnen did not specifically inform Crea that he could refuse permission to search, the request for permission to search was made only once and was phrased in a way that indicated Crea could refuse. The evidence supports the district court’s findings that Crea did not object to the continued search after Koehnen removed the plier-tool from the sheath and that Crea voluntarily consented to the search of his person and did not limit his consent to his tool sheath. Compare Harris, 590 N.W.2d at 90 (defendant voluntarily consented to search of his person when officers boarded bus on which defendant was a passenger, officers informed defendant that his cooperation was voluntary, and defendant responded promptly and unequivocally to officer’s request to search); with George, 557 N.W.2d at 581 (state failed to prove voluntary consent when officers persistently questioned defendant in order to gain consent and defendant responded equivocally to the requests for consent to search); State v. Dezso, 512 N.W.2d 877 (Minn. 1994) (state failed to prove voluntary consent when request for consent to search took place at night and officer leaned over to look into defendant’s wallet while repeatedly requesting permission to search wallet). Because Crea voluntarily consented to the search of his person, the search did not violate the Fourth Amendment. See Harris, 590 N.W.2d at 93-94 (evidence not discovered illegally when police lacked reasonable articulable suspicion to believe defendant had committed a crime but defendant consented to search).