This opinion will be unpublished and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,
Athena Marie Gatzke
Filed June 11, 2002
Hennepin County District Court
File No. 99122456
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.
Appellant challenges her conviction of check forgery, arguing that the police officer who stopped the car in which she and her children were passengers did not have a reasonable, articulable suspicion to seize her solely because she did not have identification and the officer suspected the other occupants had given false identifications. Appellant argues that her consent to the search of her children was tainted by the illegal seizure and that the evidence recovered as a result of the search should have been suppressed. We affirm.
Appellant Athena Marie Gatzke was charged with one count of check forgery in violation of Minn. Stat. § 609.631, subds. 2(1) (1998), 4(3)(a) (Supp. 1999), and one count of forgery in violation of Minn. Stat. § 609.63, subd. 1(1) (1998). The charges arose out of events that occurred on November 28, 1999. At approximately noon on that day, Minnesota State Trooper Sean Meagher was on routine patrol driving west on highway 494. Meagher testified at the suppression hearing that as he exited to go south on 35W, a car cut across into the exit lane, making a “sharp enough change of course that the car physically leaned to one side, barely making the exit.”
Meagher followed the car as it “clover-leafed” back onto 494 heading east, and as soon as it cleared the intersection, he activated his emergency lights to signal the driver of the car to pull over. Meagher testified that he saw the driver of the car looking at him in the rear-view mirror, but the driver did not pull the car over. Meagher then activated his siren and pursued the car, which continued eastbound and exited at Lyndale Avenue. When the car turned into a parking lot and continued on, Meagher drove up onto the curb to “physically cut the vehicle off to stop it.”
Two men were in the front seat of the car; appellant and her two children were in the back seat. Meagher approached the vehicle and asked for identification. The driver had no driver’s license or any other form of identification, but orally identified himself as Dudley Ray and provided his date of birth. Meagher placed Ray in the back seat of his squad car and instructed the passengers to remain in the car. Meagher ran a computer check on the information Ray provided; the check revealed that Ray’s driver’s license was revoked. Meagher testified that he did not issue a ticket to Ray at that point because he “was not sure that’s who he was.” Meagher asked Ray how long he had known the front-seat passenger. Ray replied that he had not known him very long and that his name was “Lee.” Ray also stated that the group was “just driving around.”
Meagher returned to the car and asked if anyone had a valid driver’s license. Meagher testified that when a driver can no longer drive, the policy of state troopers is to check with vehicle passengers to see if anyone else in the vehicle has a valid driver’s license so the car can be released to a passenger rather than being towed or impounded. He also testified that none of the adults in the car had a driver’s license or any other form of identification. The front-seat passenger orally identified himself as Willie Fondren, and when Meagher asked him the name of the driver, Fondren gave him a name different from Dudley Ray. Fondren stated that he did not know the driver very well and that they were taking appellant to work in Maplewood. Meagher testified that the inconsistencies and the driving conduct prior to the stop led him to believe “that somebody was giving [him] a false name and date of birth.” Meagher asked Fondren if he could search him for identification, and Fondren consented. Meagher did not find any identification, but did find eight $25 gift certificates from Rainbow Foods in Fondren’s back pocket.
Meagher called Minnesota State Trooper Jennifer Trautner for assistance, and she arrived within a couple of minutes. Trautner testified that she asked appellant if she could search her, and appellant replied, “Sure.” Appellant then asked Trautner if she and her children could use the restroom. While appellant and her children went into the restroom, Trautner waited outside the door. Trautner testified that she then asked appellant if she could search her children’s pockets, and appellant replied, “Sure.” Trautner found four checks and receipts from Rainbow Foods and DSW Shoes. All of the checks were drawn on the US Bank business account of Aurora Borzoi-Alis. Trautner testified that appellant did not at any time answer in the negative in response to the request to search her children. Trautner testified that she did not at any time show verbal or physical force, did not place her hand on her weapon, and did not peer or tower over appellant.
Appellant testified that when Trautner asked her if she could search her, she said, “Sure.” When asked at the suppression hearing if she believed at that point that she could refuse Trautner’s request, appellant testified, “No, not necessarily. I mean, I figured she was an officer of the law and I pretty much had to do what she asked.” Appellant testified that when Trautner asked her if she could search her children, she replied, “No, why would you search my kids? They are just kids. * * * Then I said, ‘Well, I guess.’” Appellant testified that Trautner told her that if she cooperated with her, “she promised to let me and my children go home.” Appellant testified that the officers “were nice.” Appellant also testified that she had been in traffic stops before where the driver did not have a driver’s license. She testified that usually she had her identification with her, which the police officers normally asked for, and then she was let go.
At the conclusion of the suppression hearing, the district court stated:
To the extent there was inconsistent testimony, I did credit the officer when it was in conflict with [appellant]. I thought the officer was very clear and credible in her testimony. Therefore I credit her when she said that there was no hesitation at the time both consents were asked for and that [appellant] did in fact consent in an unqualified, immediate way.
* * * *
I do believe that [appellant] said “yes” to both requests for search of both herself and her kids, and that when she did that there wasn’t any hesitation and that the officer didn’t provide a reason, she just asked to conduct a search. I think the question was straightforward. There was nothing about either the situation or the circumstances that I found or believed to be intimidating, and I don’t believe that [appellant’s] answers were equivocal.
The district court stated, “I don’t believe there were any threats or intimidation.” The district court also noted that appellant was allowed to take steps for her own comfort, such as using the restroom, and that the encounter took place over a short period of time. The district court concluded:
[T]he officers had a reason to continue to inquire into the issue of the identification of the parties. Specifically, I believe that they had a reason to satisfy themselves that the driver had not given a false name and that they were not helping avoid that detection by their actions in possibly hiding identification in the car or giving the identification to the children.
* * * *
I do believe the consent was valid and voluntary under all the circumstances. I really do believe that [appellant] did not think she had to say yes, but that she had the right to say no. I believe she said yes.
The district court denied appellant’s suppression motion. Appellant submitted the case to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Appellant was found guilty of check forgery and sentenced to 13 months in prison. The district court stayed execution of the sentence on the condition that appellant serve 90 days in jail and three years on probation. This appeal followed. The district court stayed the entire sentence pending appeal.
When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and 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). Appellant argues that the evidence against her must be suppressed because she was unlawfully seized where the troopers did not have reasonable suspicion that she was involved in criminal activity and her consent to search was tainted by the illegal seizure. It is undisputed that appellant was seized during the encounter with the troopers. Appellant contends that the district court erred in concluding that the seizure of her person was reasonable.
[T]o make a lawful traffic stop, a law enforcement officer must have a particularized and objective basis for suspecting the particular persons stopped of criminal activity.
State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quotation omitted). “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” Id. An officer’s assessment may be based on all the circumstances and an officer may draw inferences and make deductions that might elude an untrained person. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Here, the parties do not dispute that the traffic stop was lawful.
Trooper Meagher approached the passengers to see if anyone had a valid driver’s license and if they could verify the information the driver gave him. Where the driver of a stopped car has no identification, a police officer has “good reason” to talk to a passenger, “[s]pecifically, * * * to see if the passenger [can] aid [the officer] in accurately identifying the driver so a license check [can] be made.” State v. Ferrise, 269 N.W.2d 888, 891 (Minn. 1978). Passenger Fondren was not able to verify the information given by the driver. Fondren identified himself with a name different from that provided by the driver, gave a different name for the driver, and presented a different story about what the group was doing. These contradictory statements and the fact that none of the three adults in the car had any form of identification further established articulable suspicion to believe that someone in the car was attempting to conceal his or her identity and was providing false information to the police.
Appellant argues that even if the initial seizure was reasonable, she was detained for an unreasonable period of time. “Neither the cases of the United States Supreme Court nor of this state have imposed a rigid time limitation on the duration of investigative stops.” State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997). Appellant contends that after she orally identified herself, she should have been allowed to leave with her children because the troopers had no further reason to detain her. The present case is distinguishable from Bell, which appellant cites for support. Bell was stopped for speeding, provided his driver’s license and proof of insurance, was frisked for weapons, and was placed in the back of a locked squad car by two armed officers. Id. at 605. After the records check on Bell came back clear, Bell was issued a warning ticket for speeding. Id. This court held:
The stop and initial detention of Bell in the squad car was permissible until the officers gave Bell the warning ticket. After that point, the officers did not have independent articulable suspicion to continue Bell’s detention. The continued detention, therefore, was an illegal seizure that coerced Bell to give consent to search his car. Because the evidence found in the car was the consequence of an illegal seizure and Bell’s consent was not voluntary, the district court properly suppressed the evidence.
Id. at 608. Here, the district court found that the “encounter was very short,” with no “threats or intimidation.” Appellant was not handcuffed, arrested, or placed in the back of a locked squad car. As the district court pointed out, “there were three adults in a car with not only no driver’s licenses, which could be explainable, but no identification whatsoever.” Under Ferrise, it was permissible for the troopers to continue their investigation by questioning appellant to verify the driver’s identity. At this point, no ticket had been issued and the identities of the car’s occupants were still uncertain. We conclude that objective suspicion of criminal activity remained, and appellant was not detained for an unreasonable period of time.
Appellant next argues that the evidence seized from her children must be suppressed because her consent was tainted by the illegal seizure. A search conducted pursuant to a person’s valid consent is a lawful search. George, 557 N.W.2d at 579. “[T]o support a claim that consent was given, the state must prove that it was given freely and voluntarily.” Id. (citation omitted). Even “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) (quotation omitted); see also State v. Hoven, 269 N.W.2d 849, 854 (Minn. 1978) (“When a consent [to search] is manifestly voluntary and is not a product of an illegal arrest, it will not be deemed tainted by the arrest and will fall outside the bounds of the exclusionary rule.”).
The voluntariness of consent is determined by carefully examining the circumstances surrounding the giving of the consent, “including the nature of the encounter, the kind of person the defendant [was], and what was said and how it was said.” George, 557 N.W.2d at 580-81 (quotation omitted). In the instant case, appellant had been involved in previous traffic stops where the driver did not have a license. Appellant testified that “normally” police officers asked her for identification and then let her go home; she thought the same thing would happen in this case. Appellant’s previous experience with police officers and traffic stops decreases the likelihood that her consent was the product of fear or intimidation. Additionally, as the district court specifically recognized, appellant’s contact with Trautner was rather benign. The stop occurred in a public area during daylight hours, at approximately noon. The troopers did not use threatening gestures or tone of voice and did not use handcuffs or draw weapons. Appellant testified that the troopers “were nice” throughout the encounter. While Meagher was attempting to verify the identities of the driver and front-seat passenger, appellant was permitted to wait in the back seat of the car with her children. She was also given permission to take her children to the restroom. Appellant had only minimal contact with Meagher; she testified that while she spoke with Trautner, she was not even aware of Meagher’s location. Trautner did not engage in extended questioning. Although the troopers did not tell appellant that she had the right to refuse, the district court specifically found that she understood she had this right and gave her consent anyway.
This was a strange environment for two young children, ages two and five years old, who had no part in any of the events that took place, except to be the ones upon whom incriminating evidence was found. There is no way these small, innocent children would have anything to do with checks and receipts. It is evident that appellant placed these items on her children. The children were under the care and control of their mother, who voluntarily permitted Trautner to search them. We see no evidence of force or coercion here. It was appellant’s right as a mother to permit the search of her children, but using her small children as part of her criminal activity is contrary to the best interests of the children.
The district court was in the best position to evaluate the credibility of Trautner and appellant. It specifically stated that it credited Trautner and found that appellant clearly consented to the request to search. We conclude that appellant’s consent to search her children was manifestly voluntary and that the district court did not err in denying appellant’s motion to suppress the evidence recovered during the search.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.