This opinion will be unpublished and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,
Vicki Lee Gerard,
Filed July 30, 2002
Isanti County District Court
File No. K7001127
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55105; and
Jeffrey Edblad, Isanti County Attorney, Isanti County Courthouse, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge
The state charged appellant with several drug-related offenses. After a contested omnibus hearing, the district court denied appellant’s motion to suppress incriminating evidence found in her personal bag. Appellant submitted her case to the district court pursuant to a Lothenbach stipulation. The district court found appellant guilty on all three charges. Appellant argues the district court erred when it denied her motion to suppress because the search of her bag that uncovered incriminating evidence did not satisfy the search-incident-to-arrest, inventory-search, or plain-view exceptions to the warrant requirement. Respondent argues appellant does not have standing to object to the search because she was a passenger, and not the owner, of the van that was searched. Because we conclude the search and seizure was lawful under the inventory-search and plain-view exceptions to the warrant requirement, we affirm.
On September 7, 2000, Isanti County sheriff’s investigator Mike Ammend responded to a call from Cambridge police officer Todd Hanson. Hanson had been following a van owned and driven by Lowell Cross, whose driver’s license was revoked. Cross parked his vehicle at a commercial mall. Cross left the van and entered the mall. Hanson, who remained in visual contact with Cross, notified Ammend that Cross had entered the mall. Ammend and another officer arrested Cross inside the mall for an outstanding Anoka County warrant.
The officers asked appellant, a passenger in Cross’s van, whether she had a valid driver’s license. Appellant responded that she did not have a valid driver’s license. The officers asked appellant to leave the van and told her that they were going to tow the van because there was no licensed driver to move the van out of the parking lot. The officers also informed appellant that they were going to inventory the contents of the van.
Appellant asked Ammend to retrieve a bag from the van. When Ammend retrieved the bag, he observed drug paraphernalia in plain view. Ammend searched the rest of the bag and discovered a white substance, which field-tested positive for amphetamines. The police later recovered methamphetamine and marijuana on appellant’s person during the booking process.
Appellant moved to suppress the incriminating evidence found in her bag contending that Ammend conducted an unreasonable warrantless search in violation of the United States and Minnesota constitutions. The district court denied appellant’s motion to suppress and concluded that the plain-view exception to the warrant requirement applied because Ammend observed the incriminating objects from a lawful position inside the van. The district court stated that Ammend was in a lawful position because he was conducting an inventory search of the van after Cross’s arrest and thus had lawful access to the bag and its contents. The district court also concluded the search was lawful under the search-incident-to-arrest exception to the warrant requirement because the officers arrested Cross only a short time after he exited the van, and because Cross was at the scene when the officers searched the van.
Appellant submitted her case to the district court pursuant to a Lothenbach stipulation. The district court found appellant guilty of felony fifth-degree possession of a controlled substance, a violation of Minn. Stat. § 152.025, subd. 2(1) (2000); misdemeanor possession of a small amount of marijuana, a violation of Minn. Stat. § 152.027, subd. 4 (2000); and petty misdemeanor possession of drug paraphernalia, a violation of Minn. Stat. § 152.092 (2000). The district court sentenced appellant to one year and one day in prison, stayed the sentence, and placed appellant on probation with several conditions including jail time. This appeal followed.
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); see also State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993). The United States and Minnesota constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. It is well-established that
searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.
Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (footnote omitted); see also In re Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn. 1992).
Respondent argues appellant lacks standing to object to the officers’ search of the van because she did not have a reasonable expectation of privacy as a passenger in the van. Respondent acknowledges that it did not raise a standing argument before the district court.
The state may waive the standing issue and a defendant may argue that she, or her property, was subject to an unlawful search and seizure notwithstanding the fact that she may have had no reasonable expectation of privacy in the places searched. Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that “the state waived its right to raise the issue by failing to assert it before the trial court”); State v. Bradford, 618 N.W.2d 782, 794 n.1 (Minn. 2000) (not addressing whether appellant had standing to challenge a search warrant because the state waived the issue); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (noting that the supreme court “generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure” (citation omitted)); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (citing additional cases).
The district court did not address the standing issue. We conclude that respondent has waived its standing argument by failing to raise it at the omnibus hearing and in its post-hearing brief two weeks later. We therefore decline to address respondent’s standing argument on appeal. See Garza, 632 N.W.2d at 637 (“Because the state failed to take advantage of its opportunity to build a factual record with respect to standing, we do not believe that resolution of the standing issue is necessary to the interests of justice.”).
Appellant argues the plain-view exception cannot apply because Ammend was not in a lawful position when he observed the incriminating objects in appellant’s bag, because the initial intrusion to conduct an inventory search was unlawful. Respondent argues appellant consented to the search of the van by asking the officers for her bag after she left the van. The district court concluded Ammend seized the incriminating objects in plain view because he observed the objects from a lawful position inside the van.
The plain-view exception is an exception to the warrant requirement and permits warrantless seizures under limited circumstances. Horton v. California, 496 U.S. 128, 134, 110 S. Ct. 2301, 2306 (1990) (noting that the plain-view exception is an exception “that is addressed to the concerns that are implicated by seizures rather than by searches” (emphasis added)).
Under the “plain view” exception to the warrant requirement, the police may, without a warrant, seize an object they believe to be the fruit or instrumentality of a crime, provided: “(1) [the] police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent.”
State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995) (quotation and citations omitted) (alteration in original); see also In re Welfare of G.M., 560 N.W.2d 687, 692-93 (Minn. 1997) (discussing the plain-view and plain-touch exceptions). The only disputed issue here is whether Ammend was in a lawful position from which to observe the objects located in appellant’s bag; it is undisputed that once inside the van Ammend had a lawful right of access to the bag and that the objects’ incriminating nature was immediately apparent.
A. Lawful Position
An inventory search is an exception to the warrant requirement because it fulfills “administrative or caretaking functions” by protecting the vehicle’s owner’s property while also protecting the police from claims for damaged or lost property. State v. Ture, 632 N.W.2d 621, 628 (Minn. 2001) (citing State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997)). Two requirements must be satisfied to establish a lawful inventory search: (1) the vehicle’s impoundment must be necessary; and (2) the police must conduct the search using standardized procedures.
To determine whether an inventory search is lawful,
we must * * * look, as a threshold inquiry, to the propriety of the impoundment, since the act of impoundment gives rise to the need for and justification of the inventory. If impoundment is not necessary, then the concomitant search is unreasonable.
State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977) (citations omitted); see also State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000); Holmes, 569 N.W.2d at 187 n.6 (stating that “courts must determine the reasonableness of the impoundment prior to determining the reasonableness of the inventory search”). “The state’s interest in impounding must outweigh the individual’s Fourth Amendment right to be free of unreasonable searches and seizures * * * .” Goodrich, 256 N.W.2d at 510 (citation omitted). The circumstances surrounding the impoundment must not give rise to a “gratuitous assumption of custody by the police.” Id. at 511. If an arrestee arranges for alternative means of safeguarding the property located in his vehicle, impoundment of the vehicle is not necessary, and, therefore, is unreasonable. Id.
Impoundment is reasonable under a variety of circumstances. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 3097 (1976) (“The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.”); Ture, 632 N.W.2d at 629 (stolen vehicle); Goodrich, 256 N.W.2d at 510 (protection of public safety); City of St. Paul v. Myles, 298 Minn. 298, 300, 218 N.W.2d 697, 698-99 (1974) (where driver and passengers are under arrest, owner of the vehicle is not present, and it is 1:35 a.m., it is reasonable to impound the vehicle and inventory its contents). Minnesota law also permits the towing of vehicles where “the driver, operator, or person in physical control of the vehicle is taken into custody and the vehicle is impounded for safekeeping.” Minn. Stat. § 169.041, subd. 4(12) (2000).
We conclude the officers properly impounded the van because Cross had been arrested and appellant’s license was revoked; therefore, appellant could not have lawfully removed the vehicle from the mall parking lot.
Hanson testified that the owner of the mall never asked the officers to tow the van and the van was not obstructing traffic. But the officers’ decision to tow the van did not need to be authorized by statute; rather, their decision only needed to be necessaryand therefore reasonable. Cross was under arrest and there is no evidence that he had arranged for another person to move his van from the mall parking lot. But see Goodrich, 256 N.W.2d at 511 (impoundment is unreasonable where alternative means of safeguarding property inside the vehicle are procured). Moreover, police may impound and tow vehicles where the owner is not present or where the driver or owner is under arrest. Minn. Stat. § 169.041, subd. 4(12); Myles, 298 Minn. at 300, 218 N.W.2d at 698-99.
We therefore conclude the officers’ decision to impound the van was necessary and therefore reasonable. Consequently, the decision to impound the van did not violate the Fourth Amendment or the Minnesota Constitution.
2. Standardized Procedures
Police may conduct an inventory search if they adhere to standardized procedures and conduct “the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation.” Ture, 632 N.W.2d at 628 (citation omitted). A policy that requires officers to conduct an inventory search before towing a vehicle is not, by itself, unconstitutional. See Colorado v. Bertine, 479 U.S. 367, 373-74, 107 S. Ct. 738, 742 (1987) (upholding the constitutionality of an inventory search conducted before towing). The state may show the existence of, and compliance with, standardized inventory procedures by admitting the written policy into evidence and through testimony at the omnibus hearing. Ture, 632 N.W.2d at 628-29. Moreover, police are permitted a certain level of discretion “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Holmes, 569 N.W.2d at 187 (quotation omitted).
Hanson testified that the Cambridge Police Department did not have a written procedure to determine whether a vehicle should be impounded, and that the department leaves the decision to impound to the individual officer. He testified, however, that the “formality” the department uses is the same for all officers. Before a vehicle is towed, officers complete a “tow sheet” with a case number that lists the vehicle’s contents for police records. The tow sheet has blank spaces to list the name of the vehicle’s owner, the vehicle’s registration number, the items located in the vehicle, and the vehicle’s physical condition.
Appellant does not argue the officers conducted the search for the sole purpose of investigation and the record supports this conclusion. Although the evidence regarding the department’s policy was general, it was sufficient to show that the officers conducted the inventory search pursuant to a standardized policy and procedure. We conclude that Hanson’s testimony sufficiently established the presence of standardized procedures to make the inventory search lawful.
We therefore conclude the officers conducted a lawful inventory search and therefore Ammend was in a lawful position when he observed the incriminating objects in plain view. Because we conclude the search and seizure was lawful under the inventory-search and plain-view exceptions, we need not decide whether the search was a lawful search incident to arrest or whether appellant consented to the search of the van.