This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1565

 

State of Minnesota,

Respondent,

 

vs.

 

Quentin Gerald Alexander,

Appellant.

 

Filed June 26, 2001

Reversed and remanded

Halbrooks, Judge

 

Ramsey County District Court

File No. K3993399

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of fifth-degree controlled-substance possession.  He argues that the trial court erred when it found that he voluntarily consented to a search of his car without making findings on whether the stop was lawful.  We agree and reverse and remand for findings on that issue and determination of whether, if the stop was unlawful, it tainted appellant’s consent.

FACTS

On October 12, 1999, St. Paul police officer Michael Polski was patrolling in his squad car when he noticed appellant Quentin Alexander waiting outside a house in the Dayton’s Bluff neighborhood.  As he drove past appellant, Polski testified that he never saw appellant knock on the door.  Polski admitted that, while watching appellant, he glanced away several times to focus on the road.

Appellant testified that when Polski saw him, he was waiting outside his girlfriend’s residence in order to drive her to work.  Appellant saw the squad car slow down to about 10-15 m.p.h. as it passed by.  Appellant claimed that he knocked on the door and the squad car had passed out of view by the time someone answered.  Appellant then left with his girlfriend.

Later that evening, Polski returned to the area with Sgt. Kenneth Sass, and they saw appellant waiting in a car in front of the same residence.  The car’s engine was not running, and its lights were off.  Polski felt, based on his knowledge of the crime and drug trafficking in this neighborhood, that he “wouldn’t be doing [his] duty if [he] didn’t stop to investigate” why appellant was sitting by himself in a car in this particular neighborhood.  Polski acknowledged that he had not received any complaints about criminal activity in the area that evening or any complaints at any time regarding this particular residence.

Polski asked appellant to step out of his car so that the officers could pat him down for weapons.  On cross-examination, Polski conceded that he had ordered appellant out of the car and “would have got him out of that car” had appellant refused to comply.  Polski went through appellant’s pockets and found miscellaneous personal items. 

Stating that they were concerned about drug trafficking in the neighborhood, the officers asked appellant to explain his presence.  Appellant responded that he was waiting to meet his girlfriend, who was supposed to return soon from work.  The officers made no attempt to verify appellant’s explanation at any time during the investigation.  Polski then asked appellant if he had anything illegal in his car and whether the officer could search it, to which appellant testified that he replied, “I don’t care.”  The officers told appellant to sit on the curb while they conducted a search.  As Polski was searching, a jar of lip balm fell out of the ashtray.  When appellant made a movement toward the jar and said that he wanted to retrieve it, Sass told him to “remain away from the officer.”  Polski opened the jar and discovered two rocks of crack cocaine.  Appellant was subsequently charged with possession of a controlled substance in the fifth degree.  See Minn. Stat. § 152.025, subd. 2(1) (1998).

            Appellant made a pretrial motion to suppress the drugs, arguing that they were the fruit of an unlawful seizure.  Although the trial court specifically questioned whether the search and pat-down were based on reasonable suspicion, the court denied appellant’s motion because it found that appellant had voluntarily consented to the search.  The trial court explicitly noted that under its reading of search-and-seizure cases,

[i]f a finding as to the validity of the consent depended upon a finding as to the lawfulness of the stop and of the pat down in this case, the Court would make such specific findings that they either were or were not.  The State of the law now appears to be that it does not.

 

This appeal follows.

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, we review the facts independently to determine, “as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).  We, however, will not set aside the trial court’s fact-findings “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.

Here, appellant argues that the trial court erred because it declined to determine whether the officers’ stop constituted an unlawful seizure before finding that appellant gave his consent for his vehicle to be searched.  The state contends that, even if appellant was unlawfully stopped, his consent was “manifestly voluntary” and, therefore, cured the fruits of the subsequent search of his vehicle from any unlawful taint.

To determine whether consent has been given freely, a trial court must examine “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.”  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  The state bears the burden of showing by a preponderance of the evidence that a defendant voluntarily gave consent.  State v. George, 557 N.W.2d 575, 579 (Minn. 1997).  Determining whether a suspect freely gave consent to a search involves “balancing the government’s legitimate need to search against the requirement that consent not be coerced.”  Harris, 590 N.W.2d at 103 (citation omitted).  Caselaw has also recognized that “[c]onsent must be received, not extracted.”  Id. at 102 (quotation omitted).

We disagree that a suspect’s consent automatically cures a search of any potential illegality.  The trial court correctly noted that in State v. Shellito, we held that “where an illegal stop is involved, consent may still be valid if the consent was ‘manifestly voluntary.’”  State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999) (quoting State v. Blacksten, 489 N.W.2d 252, 255 (Minn. App. 1992), aff’d in part, rev’d in part on other grounds, 507 N.W.2d 842, 847 (Minn. 1993)). 

But we also held in Shellito that consent may be so tainted by an unlawful seizure that it becomes ineffective to justify a search.  Id. (relying on Florida v. Royer, 460 U.S. 491, 507‑08, 103 S. Ct. 1319, 1329 (1983) (stating that because the defendant was being illegally detained when he consented to the search of his luggage, the consent was “tainted by the illegality” and thus, was ineffective to justify the search)).  Shellito does not stand for the proposition that a court can ignore a potentially illegal stop when it determines whether consent was freely given.  Rather, under Shellito, a court may find consent to be valid even after determining that it was preceded by an illegal seizure and search.  Id. 

We, therefore, hold that a trial court cannot rule seized evidence admissible on the grounds that a suspect has given consent without first determining whether the suspect was unlawfully seized and searched.  Once the court has made this determination, it can then determine whether the suspect’s consent was manifestly voluntary and not tainted by an unlawful stop.  The nature of the stop and seizure is part of the totality of the circumstances and ought to be considered in determining if consent was manifestly voluntary.  Royer, 460 U.S. at 501, 103 S. Ct. at 1326; Dezso, 512 N.W.2d at 880.

The state urges us to find that either the officers did not stop appellant or, if they did indeed stop appellant, such a stop was lawful.  But because the trial court did not reach this issue, we have no findings of fact before us on which to make this legal determination.  See State v. Cassidy, 567 N.W.2d 707, 710-11 (Minn. 1997) (remanding to trial court where the trial record is inadequate for review).  The trial court expressed skepticism in its memorandum regarding the officers’ motivation for investigating appellant: 

Whatever bases Officer Polski [gave] as his reasons for investigating [appellant], they lack specificity and the reasonableness of those he articulated [are] suspect when he [acknowledged] he did not investigate or follow up on the [appellant’s] explanation that he was waiting for his girlfriend who lived there.

 

The trial court noted that Polski seemed to be operating on a mere “hunch” because appellant was cooperative, not violent or aggressive, and was “doing nothing illegal.”  See State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995) (an officer must be able to point to objective facts and may not base his or her conclusion on a mere hunch).  The trial court did not make specific findings on the lawfulness of the stop because it did not believe it to be necessary, as long as appellant’s detention was not “so excessive as to constitute a seizure and as long as there is no illegal, fabricated arrest.”

Without adequate findings, it is not clear if appellant was unlawfully stopped and, if so, whether he felt compelled to give consent to the officers’ search.  We, therefore, remand to the trial court to make findings on whether the stop was lawful and, if unlawful, whether this tainted his consent.

Reversed and remanded.