This opinion will be unpublished and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
State of Minnesota,
Larry Dale Wolfgram,
Filed October 9, 2001
Ramsey County District Court
File No. K0-99-3036
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Daniel S. Adkins, Richard A. Sand, Richard Sand & Assoc., P.A., 168 Nina Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Lindberg, Judge.*
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
Appellant challenges his convictions of first-degree controlled-substance crime and possession of stolen property arguing that the district court erred in finding that the police officer had probable cause and consent to search appellant's vehicle, and erred in preventing him from cross-examining an officer about his relationship to a man who resided on appellant's property and who appellant alleged was in possession of the methamphetamine found there. We affirm.
Based on the above facts, Minnie then asked if he could "check" appellant and the vehicle. According to Minnie, appellant said, "Sure that's fine." Appellant testified that he did not consent to any search at any time. After appellant stepped out of the vehicle, Minnie performed a pat search on appellant. Minnie testified that both prior to and as he was searching appellant, he asked appellant again if he had anything, and appellant initially responded in the negative, but then acknowledged during the search that he had a boot knife. Minnie also felt a bulge in one pocket and removed a large sum of cash. Minnie placed appellant in his squad car and checked appellant's driver's-license status, which Minnie learned was revoked.
Thereafter, Minnie searched the vehicle, first by himself, and then he called for backup, which arrived about 30-45 minutes later. After a period of time, the other officer found a small black drawstring bag filled with methamphetamine on the mud flap on a rear tire of the vehicle. Appellant was arrested and later convicted of possession of a controlled substance.
Later that day, a search warrant for appellant's home was executed. An electronic gram scale, transceivers, a box of baggies, bank wrappers for $100 bills, a small amount of marijuana, and a stolen gun were found in appellant's dresser drawers. The warrant also covered other buildings on the property. Robert Sierks's camper trailer was located on appellant's property and was searched. Officers found additional drugs and drug paraphernalia in Sierks's camper. Appellant was later charged and convicted of possession of a stolen firearm.
The affiant of the search warrant was Officer Grahek, who seized items from appellant's home but not the trailer. During testimony, Grahek agreed that he knew Sierks had previously been charged with possessing methamphetamine. Appellant then tried to elicit additional testimony from Grahek regarding the relationship between Grahek and Sierks, specifically that Sierks was an informant. Appellant's defense in part was that the methamphetamine belonged to Sierks. Appellant believed knowledge of that relationship and the fact that Sierks was not charged with any crime for the items found in his camper would help prove his defense. Respondent argued the information was irrelevant. The district court agreed.
Appellant was convicted of first-degree controlled-substance crime and possession of stolen property. Appellant argues that the district court erred in finding that Minnie had consent and probable cause to search his vehicle. Appellant also argues the court erred in preventing him from questioning Grahek about his knowledge of and relationship to Sierks. This appeal followed.
D E C I S I O N
I. Search and Detention
In reviewing district court rulings on Fourth Amendment issues, this court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). But this court independently applies Fourth Amendment caselaw to the facts as found. Id. Appellant asserts the district court erred in finding that the police officer had consent and probable cause to search his vehicle. We disagree in regard to consent and agree in regard to probable cause.
First, appellant contends that the district court erred in believing Minnie's testimony about his request for consent over appellant's testimony of no request for consent. A search of a vehicle with the owner's valid consent is a lawful search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973). Minnie testified he asked for appellant's consent to search his vehicle. Appellant denies consent was given. Conflicting statements are a question of witness credibility that is left to the district court when it is the trier of fact. Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986). The district court considered the demeanor of Minnie and appellant while testifying, their interest in the outcome of the case, the facts leading up to the search, and all other relevant matters. We do not disturb the district court's credibility determination. Based on the testimony, the court found that appellant consented to the search. We cannot conclude that this was an erroneous finding.
Although it does not change our disposition of the case, we agree with appellant that the officer did not have probable cause to conduct the search.
[T]he police may conduct a warrantless search of [a] vehicle if there is probable cause to believe the vehicle contains evidence of a crime and if the police face the exigency that the vehicle may disappear by the time a warrant is obtained.
State v. Hiler, 376 N.W.2d 760, 762 (Minn. App. 1985) (citations omitted). The test for probable cause is whether the objective facts are such that under the circumstances "a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed." State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (alteration in original) (quotation omitted). Suspicions may not be based upon a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995).
Here, appellant had a large sum of cash, was nervous, appeared disheveled, had yellowing teeth and pale complexion, and he made no attempt to answer his cell phone when it rang several times. Based on these circumstances, Minnie conducted a search. The district court determined that these facts constituted probable cause for the search. Appellant had explanations for each item: his wife was calling because he was not yet home, he had recently sold another vehicle and received cash, and he was nervous because he was stopped by a police officer. It is not unusual for a person dealing with police officers to be nervous, even if that person is innocent of any wrongdoing. See, e.g. State v. Robb, 605 N.W.2d 96, 103 (Minn. 2000) (holding that defendant's nervousness did not provide officers with reasonable, articulable suspicion to justify protective search of vehicle). Nervousness and a "disheveled" appearance are not objective facts, but rather subjective assessments derived from the officer's perceptions, and are too vague to support probable cause. The cash and ringing cell phone did not justify more than perhaps a hunch on Minnie's part that the vehicle contained a controlled substance. We find that the district court improperly concluded that these facts together provided probable cause to justify a search and detention.
Appellant also challenges the duration of the stop, claiming the search, which lasted over two hours, was improperly prolonged. While the record does not reflect the exact duration of the stop, courts have not imposed a rigid time limit on the permissible duration of a detention that follows a lawful stop. See State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993). The general rule is that an investigatory detention "may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop." State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997). Minnie, with appellant's consent, searched every part of the vehicle and did wait approximately 30-45 minutes for his backup to arrive. Minnie was looking for controlled substances, which can be located nearly any place on and in the vehicle. While it may have taken two hours, that time, on these facts, to conclude a proper search was not unreasonable. The search and detention, supported by appellant's consent, were proper.
Appellant argues the district court abused its discretion when it would not allow him to further question Grahek, who executed the search warrant at appellant's residence, about his knowledge of and relationship to Sierks, the owner of the camper trailer on appellant's property. We disagree. It is true that every defendant shall have the opportunity to develop a defense by presenting his or her version of the facts. State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). In fact, the Confrontation Clauses of the United States and Minnesota Constitutions guarantee the right to cross-examine and impeach witnesses to show possible bias. Id. But that does not make "everything admissible." Evidentiary rulings rest within the district court's discretion and will not be reversed absent a clear abuse of discretion. State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999). An erroneous ruling that excludes defense evidence warrants reversal when there is a reasonable possibility that the verdict would have been different had the evidence been admitted. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
Appellant contends that it was vital to his defense to demonstrate that the drugs belonged to someone else (Sierks) and to detail Sierks's past drug convictions and connections to Grahek. We cannot find prejudice to appellant by the court's evidentiary ruling. First, at trial, Grahek did admit he knew Sierks and knew Sierks had been charged with possession of methamphetamine. Second, appellant presented the testimony of two officers who participated in Sierks's arrest for methamphetamine possession. Appellant, then, during the cross-examination of Grahek, wanted to elicit information that Sierks was a confidential informant. The district court then ruled that the relationship (whether confidential or not) was not relevant and would not allow further questioning on that subject, but appellant concedes that he made no pretrial record on his need for the informant's name. Appellant offers no concrete argument or evidence, other than he needed more time at trial to explore how Grahek knew Sierks, and how evidence of that relationship would change the affidavit, search warrant, or the ensuing chain of events. From the record and the testimony, we know that the jury was informed of Sierks's criminal record, drug conviction, and proximity to appellant's home.
We conclude the district court properly limited appellant's cross-examination of the officer.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.