This opinion will be unpublished and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,
Robert Bruce Anderson,
Filed August 27, 2002
Itasca County District Court
File No. K4-00-932
Stefan A. Tolin, 540 Norwest-Midland Building, 401 Second Avenue South, Minneapolis, MN 55401-2307 (for appellant)
John J. Muhar, Itasca County Attorney, 123 Fourth Street Northeast, Grand Rapids, MN 55744; and
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Shumaker, Judge.
Appellant challenges his conviction of first-degree controlled substance offense, arguing that the district court erred in denying his suppression motion. Appellant contends that the district court clearly erred in finding that he initially refused to leave the motel room and that he and his companion had removed their belongings from the room before police made the warrantless entry. We affirm.
Appellant Robert Bruce Anderson rented room 143 at the Sawmill Inn in Grand Rapids, Minnesota. His registration card indicates his arrival date as 9 May 2000, and his departure date as 11 May 2000. Appellant paid cash for the room. On the mornings of 11 May and 12 May, appellant’s companion, Eva Twocrow, went to the front desk, indicated that she and appellant wished to stay for another night, and paid cash for the room. On 13 May, at approximately 10:00 a.m., Twocrow went to the front desk to ask if they could stay another night. Desk clerk Faith Hilke informed Twocrow that they could stay at the motel another night, but they would have to move to another room because room 143 was reserved for a wedding party that evening. Hilke advised Twocrow that they would have to vacate room 143 by noon. Twocrow gave Hilke a $100 bill and walked away.
Around 11:45 a.m., Hilke told housekeeping that appellant and Twocrow would be moving to a different room. Hilke telephoned room 143 and reminded Twocrow that they had to vacate the room. Twocrow stated that they needed 15 more minutes. Around 12:30 p.m., the housekeeping supervisor, Angela Tepley, knocked on the door to room 143. Twocrow answered the door and said they needed ten more minutes. Tepley informed her, “We need to have you out of here in ten minutes.” Twocrow responded, “No problem.”
Tepley returned to room 143 with another housekeeper, Kay Villeneuve, and knocked on the door at approximately 1:00 p.m. Appellant answered, came outside of the room, and closed the door to the room. Tepley explained again that they had to move to another room. Tepley testified that appellant was “very upset” and began yelling and raising his arms and moved closer to Tepley. Tepley testified that although she could not remember appellant’s exact words, she “felt threatened.” Tepley testified that appellant’s demeanor was scary. She also testified:
His voice was very loud and - - screaming, actually, and it was a deep screaming. It was like he was possessed by something. It was just a terrible, terrible voice, very scary, and people all around me also felt threatened. It wasn’t just myself.
While Tepley had been talking to appellant, she testified that she smelled a strong, hot, bad odor coming from room 143. Tepley testified that at first she was going to give appellant ten more minutes, but when he started screaming, she told him, “You know what, you’re out of here. I’m going to call the police.” Twocrow went to the front desk and said, “We’re not staying; we’re leaving; we need our money back.” Hilke returned the money to Twocrow. Tepley called the police.
Itasca County deputy sheriffs Gregg Deutsch, John Rubesh, and Mike Olson, and Grand Rapids police officer Stephen Valley all responded to the call. They arrived shortly after 1:00 p.m. Tepley told them that she felt threatened by appellant and was terrified that he was going to hit her. Tepley was suspicious that appellant had drugs in the room. Tepley was trembling and her voice was shaking; she appeared very nervous and frightened. Tepley asked the officers to remove appellant and Twocrow from the room.
Valley and Rubesh decided they would go to the inside door of room 143 while Olson and Deutsch would go to the outside (parking lot) door. Valley and Rubesh knocked on the inside door. Someone asked, “Who’s there?” Rubesh responded that it was the police. Rubesh then heard the outside door to the room open. He thought the occupants of the room were leaving, so he went outside through another motel room. As Olson and Deutsch drove their squad car around to the parking lot area adjacent to room 143, they observed appellant and Twocrow on the sidewalk with a pile of suitcases and clothes and the open door to room 143. Appellant and Twocrow were loading the items into their car. Appellant told Twocrow to keep working and that he would handle the situation.
Appellant told the officers that he and Twocrow had decided to leave rather than move to another room. Deutsch testified that appellant then said, without being asked, that he did not threaten anybody. Deutsch testified that when appellant spoke, his movements were very jerky and he spoke very fast. Deutsch told appellant that someone was knocking on the door to room 143. Deutsch testified that appellant replied, “Yes, it was your compadres.” Deutsch testified that when he asked appellant if he was going to let them in, appellant replied, “No. We’re done with the room. We’re moved out - - moving out. All our stuff is out of the room. If you want to let them in, let them in.”
When Rubesh entered room 143 to open the inside door for Valley, he scanned the room for officer safety. Both Rubesh and Valley testified that they did not see any luggage, clothes, or a ferret in the room. They observed towels rolled up against the bottom of the doors and tape on the trim of the doors covering the cracks. Valley testified that room 143 “was closed up tighter than a drum.” The garbage can in the room contained aluminum foil with burn marks and holes in it that appeared to have been made into a makeshift pipe. Rubesh testified that he believed it was a device used for smoking illegal controlled substances.
Brad Timm of the Minnesota State Patrol arrived at the scene to assist with his trained narcotics dog. The dog alerted on two garbage cans and a small table in room 143. The dog also alerted at the rear of appellant’s car and on the passenger’s side. When a narcotics dog alerts, it indicates the presence of controlled substances. Timm was assisted by Grand Rapids police officer Tim Dorholt, a member of the Boundary Waters Drug Task Force, who had special training in narcotics law enforcement. Dorholt examined the areas in the room where the narcotics dog had alerted, noticing white powder on the floor, burnt aluminum foil, and a door that was taped. Dorholt testified that the aluminum foil appeared to have been used for smoking methamphetamine or cocaine. Some of the foil had residue on it. Dorholt testified that the room smelled strange with a combination of smells.
The officers then obtained a search warrant to search appellant’s car, which was towed to the police station. The search of appellant’s car produced two scales, $3,950 in cash, a black case containing suspected cocaine, a bindle of suspected cocaine, foil with residue, a .357 Smith and Wesson, another pistol, and various other items of drug paraphernalia. Appellant was charged by amended complaint with two counts of first-degree controlled substance crime in violation of Minn. Stat. § 152.021, subd. 2(1) (2000); one count of carrying a weapon without a permit in violation of Minn. Stat. § 624.714, subd. 1 (2000); and one count of public nuisance in violation of Minn. Stat. § 609.74 (2000). Appellant filed a motion to suppress evidence.
At the omnibus hearing, Twocrow testified that she and appellant taped the entrances around the doors to their room to keep the odor of their pet ferret and cigarette smoke from escaping. She testified that they burned incense to mask the odors. Twocrow testified that when the officers arrived, she and appellant still had luggage in room 143 and their ferret was in the bathroom. She testified that to her knowledge appellant did not give his consent for the officers to come in the room. Appellant testified that he never personally threatened the maid and that he never gave his consent for the officers to enter and search room 143.
The district court denied appellant’s motion to suppress the evidence, specifically finding “that [appellant’s] testimony is not credible.” Appellant agreed to submit one count of first-degree controlled substance crime on stipulated facts to the district court for a bench trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The other counts were dismissed. The district court found appellant guilty and sentenced him to 86 months in prison, with execution stayed pending appeal. This appeal followed.
D E C I S I O N
Denial of Suppression Motion
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).
a. No Reasonable Expectation of Privacy
Appellant argues that the warrantless search of room 143 was unlawful because he had a reasonable expectation of privacy in it, and no exceptions to the warrant requirement applied. He argues that the district court erred when it denied his motion to suppress the evidence obtained as a result of that warrantless entry. The state contends that appellant had no standing to object to the entry or search of the motel room.
A defendant who seeks the suppression of evidence * * * must allege some violation of his own rights. State v. Carter, 569 N.W.2d 169, 174 (Minn. 1997), cert. granted, 523 U.S. 1003, 118 S. Ct. 1183, 140 L. Ed. 2d 315 (1998). In order to have Fourth Amendment “standing,” therefore, a defendant must show the search or seizure infringed upon the defendant’s own legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978).
State v. Reynolds, 578 N.W.2d 762, 764 (Minn. App. 1998). "A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 1687 (1990) (quotations omitted).
[I]t is the burden of the party seeking suppression to show his fourth amendment rights were violated, that he had a personal and legitimate expectation of privacy and that the search was illegal.
State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990) (citations omitted) (emphasis in original), review denied (Minn. 14 Sept. 1990).
A warrantless search of a person’s home is prohibited by the Fourth Amendment to the United States Constitution, and article I of the Minnesota Constitution. U.S. Const. amend. IV; Minn. Const. art. I, §10. “Guests in a motel room are accorded similar privileges of privacy.” State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998).
But even a reasonable expectation of privacy may be waived if a defendant’s conduct, objectively viewed in light of the totality of the circumstances, mandates the conclusion that any expectation of privacy * * * was unreasonable.
State v. Perkins, 588 N.W.2d 491, 493 (Minn. 1999) (quotation omitted). In Perkins, the hotel staff twice informed the occupants of a room that they were too noisy; when given the second warning, the occupants were informed that if they did not quiet down, they would be removed. Perkins, 582 N.W.2d at 876-77. Upon receiving a third complaint, the hotel’s manager called the police for assistance in removing the occupants. Id. at 877. While standing outside the room, police officers could smell marijuana emanating from inside. The defendant argued with the manager when the manager told the occupants that they would have to leave. The police officers waited for less than a minute and then entered the room where contraband was found. Id. The Minnesota Supreme Court held that the defendant’s conduct destroyed any expectation of privacy he may otherwise have had in the hotel room. Perkins, 588 N.W.2d at 493.
In the instant case, the district court found that appellant was only entitled to occupy room 143 until noon on 13 May 2000. After being advised four times that he and his companion had to vacate room 143, appellant initially refused and argued with motel staff. He was told that management was calling the police to have him put out. The district court found that appellant was no longer welcome on the premises, was considered a trespasser, and his conduct was so threatening that it resulted in a 911 call. The district court also found that appellant’s
right of occupying, if not terminated at the noon checkout time, was terminated by his bad behavior, which provides probable cause for the disorderly conduct charge in the complaint.
Appellant challenges the district court’s findings of fact. The district court found that appellant and Twocrow “had moved all of their belongings out of the room.” The district court made a credibility determination in rejecting appellant’s claim that he still had personal belongings in the room. “[C]redibility determinations are for the finder of fact and should not be disturbed on appeal.” State v. Fisler, 374 N.W.2d 566, 569 (Minn. App. 1985) (citations omitted), review denied (Minn. 18 Nov. 1985). The district court specifically found “that [appellant’s] testimony is not credible.”
The district court concluded that “[t]here was no reasonable expectation of privacy to which [appellant] was entitled at the time the officers were summoned to the motel.” We agree. Any expectation of privacy that appellant may have thought he had in room 143 was unreasonable under the circumstances.
b. Consent to Enter
Appellant next argues that the officers did not receive valid consent to search room 143. The state contends that, under the totality of the circumstances, it was reasonable for the officers to conclude that appellant voluntarily consented to the search of the motel room.
It is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government * * * is not that they always be correct, but that they always be reasonable.
Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S. Ct. 2793, 2800 (1990).
"A search * * * with * * * valid consent is a lawful search." State v. George, 557 N.W.2d 575, 579 (Minn. 1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973)). "However, to support a claim that consent was given, the state must prove that it was given freely and voluntarily." Id. (citation omitted). "The voluntariness of consent is not easily defined" and "must be determined after a careful examination of the circumstances surrounding the giving of the consent." Id. (citations omitted).
The state contends that appellant voluntarily consented to the police officers’ entry into room 143. At the omnibus hearing, Deutsch testified that appellant told him, “We’re done with the room. We’re moved out - - moving out. All our stuff is out of the room. If you want to let them in, let them in.” Rubesh also testified that he heard appellant say that he was done with the room. Appellant denied that he said this, but the district court specifically found that appellant’s testimony was not credible. The district court found:
At the time in question, the Court finds that [appellant] and Ms. Twocrow had moved all their belongings out of the room and [appellant] had authorized entry into the room by his statement to Deputy Deutsch.
The district court concluded that the “entry of the motel room was consensual.” We agree; the district court did not err by finding that appellant freely and voluntarily consented to the police entry.
c. No Miranda Violation
Appellant next argues that he was in custody when he allegedly gave his consent to the police to enter his motel room and alleges both Miranda and Scales violations.
The right to a Miranda warning attaches only during custodial interrogation. The determination of whether a suspect is in custody is an objective inquiry * * * . If a suspect has not yet been arrested, a district court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the suspect’s position would have believed he was in custody to the degree associated with arrest.
State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998) (citations omitted). The state argues that a reasonable person in appellant’s position would not have believed he was in custody to the degree associated with a formal arrest. Appellant contends that when Olson and Deutsch drove around to the parking lot side of the building they parked directly behind his vehicle and blocked him from leaving the motel. The record does not support this assertion. Deutsch testified that they “pulled up.” Twocrow testified that a “police car pulled up.” Appellant testified that the “squad pulled up behind my car.” Appellant did not testify that the squad car parked behind his car or prevented him from leaving.
The state also argues that there was no interrogation here.
Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. * * * Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
State v. Edrozo, 578 N.W.2d 719, 725 (Minn. 1998) (citation omitted). Deutsch asked appellant if he was going to admit the person who was knocking. The state argues that this question was not designed to elicit an incriminating response. We agree that the question was constitutionally neutral. After appellant gave a negative response to the question, he voluntarily explained that Deutsch could open the door. We conclude that there was no Miranda violation here.
d. No Scales Violation
Appellant argues that the officers violated the Scales recording requirement. The state contends that appellant’s Scales argument fails for the same reason his Miranda argument fails.
[A]ll custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.
State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Scales applies only to custodial interrogation. Edrozo, 578 N.W.2d at 726. In Edrozo, the district court suppressed statements made by the defendant while he was retrieving personal items from his vehicle in the impound lot. The Minnesota Supreme Court reversed the suppression order, noting that the defendant was not in custody at a detention facility, but had voluntarily appeared at the police impound lot. Id. The court further noted that the defendant was not being interrogated and his statements were spontaneous. Id. The state argues that in the present case, as in Edrozo, appellant was not in custody when he approached the police officers and began talking to them. Appellant was not in a detention facility, but in a motel parking lot. The state argues that appellant’s remark to Deutsch, “If you want to let them in, let them in,” was spontaneous. We agree and conclude that a Scales recording was not required here.
 Even if there was a stop by reason of the police car blocking appellant’s vehicle, that would not have constituted custody for purposes of the Miranda requirement.