This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Gerald E. Houston,



Filed ­­­December 31, 2002


Harten, Judge


Sherburne County District Court

File No. K1-00-2332


John M. Stuart, State Public Defender, Davi Axelson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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


Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant Gerald Houston appeals from his convictions of attempted controlled substance crime in the first degree (manufacture of methamphetamine) and controlled substance crime in the fifth degree (possession of methamphetamine).  Appellant claims that the evidence discovered during a police inventory search of his vehicle should have been suppressed and that the evidence presented was insufficient to warrant a conviction.  He also claims that he was denied a speedy trial, that he should not have been forced to wear a leg restraint during trial, and that he was improperly sentenced under the career offender statute.  We affirm.


            On 24 December 2000, Officer Brian Boos of the Elk River police department came upon a car stalled on a city street.  The car’s hazard lights were on, and it was situated on the shoulder of the road with its tires just off the traffic lane.  Appellant was standing outside the car. 

            Boos performed a registration check and found that the car’s owner was Christina Ann Enderle.  Boos then spoke with appellant, who informed him that the car had stalled and that he needed a “jump.”  At appellant’s request, Boos called a tow truck. 

            Boos asked for and received appellant’s identification card.  He then offered to let appellant wait in the squad car to get out of the cold.  Appellant agreed and, before entering the squad car, Boos performed a pat search on appellant and discovered no drugs or weapons.

            Appellant told Boos that Selinda Gregor had been driving the car and that she had gone to get help.   Officer Jeff Garcia then arrived at the scene, and Boos told him to go to Gregor’s address, which was approximately a quarter mile from their location.  Garcia went to Gregor’s residence but did not find her there.

            When the tow truck arrived, appellant indicated that he did not have enough money for a tow, so Boos sent the truck away.  Boos then arrested appellant for outstanding warrants and transported him to the Sherburne County Law Enforcement Center.

            After responding to another call, Boos returned to the stalled car.  Its hazard lights were beginning to dim and nobody else was around.  Boos called for a tow truck because he felt the car was a hazard due to the slippery road conditions and the dimming lights.  Boos then began an inventory search of the car.  He opened the trunk and found rubber gloves, light bulbs, and cans of toluene, items that Boos recognized were used to produce methamphetamine.  He then shut the trunk due to the potential health hazard of exposure to its contents, reported to his supervisor, and had the car towed to the police department.  A search warrant was then obtained to search the car.[1] 

            Pursuant to the search warrant, Jeffrey Baker, an investigator with the Sherburne County Sheriff’s Department and a member of the Central Minnesota Drug Task Force, searched the car.  In the trunk he found:

            1.         Three one-gallon tin cans of Toluol.

            2.         A  one-gallon metal can of paint thinner.

            3.         A full one-gallon plastic jug labeled muriatic acid.

            4.         A square one-gallon metal can labeled Coleman fuel.

            5.         A can of engine starting fluid.

            6.         Two empty eighteen-ounce containers of Red Devil lye.

            7.         Two empty bubble packs of Sudafed.

            8.         Three bottles of Genovese nasal decongestant.

            9.         Numerous red phosphorus match striker pads.

            10.       Stained coffee filters with pseudoephedrine residue.

            11.       Two plastic bottles that had been fused together.

            12.       A glass jar.

            13.       Two separate pieces of a plastic funnel.

            14.       Numerous rubber gloves.

            15.       An empty 16-ounce plastic bottle of iodine.

            16.       A plastic colander, a siphoning pump, a plastic pitcher, and a strainer.

            17.       Four one-gallon plastic jugs full of unknown liquids.

            18.       An empty metal can labeled acetone.

These items are commonly used in the production of methamphetamine.  The trunk also contained a plastic bag with a small amount of methamphetamine. 

            Appellant was charged with three counts: controlled substance crime in the first degree (manufacture of methamphetamine); attempted controlled substance crime in the first degree, and controlled substance crime in the fifth degree (possession of methamphetamine).

On 19 July 2001, at an evidentiary hearing, appellant challenged the legality of the inventory car search.  The district court found the search valid.

            Before trial, the district court granted the state’s request to require that appellant wear a leg restraint during trial.  The jury found appellant guilty of attempted controlled substance crime in the first degree and controlled substance crime in the fifth degree and not guilty of controlled substance crime in the first degree. 

            On 11 January 2002, the district court sentenced appellant for attempted first-degree controlled substance crime to the statutory maximum penalty of 240 months’ imprisonment under the career offender statute.  No sentence was imposed for the fifth-degree controlled substance crime.  This appeal followed. 


1.         Inventory Search

Appellant argues that the inventory search of the car was not administered in good faith and that the police department’s stated procedure was not followed.

When reviewing pretrial suppression rulings, this court “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).  Questions of law are reviewed de novo.  State v. Camacho, 561 N.W.2d 160, 170 (Minn. 1997).

Both the United States and Minnesota Constitutions prohibit the state from conducting unreasonable searches or seizures.  U.S. Const. Amend. IV; Minn. Const. Art. I, § 10; State v. Munson, 594 N.W.2d 128, 135 (Minn.1999).  In general, searches conducted without a search warrant are “per se unreasonable.”  Id.  Boos had no warrant when he searched the car.  Therefore, unless “one of the well-delineated exceptions to the warrant requirement” applies, the search of the car was unconstitutional.  Id.

Among the exceptions to the warrant requirement is the inventory search exception.  This exception permits the police to search a vehicle provided they follow standard procedures in carrying out the search and perform the search, at least in part, for the purpose of obtaining an inventory.  State v. Holmes, 569 N.W.2d 181, 188 (Minn. 1997).

Here, Boos searched the car trunk in accordance with the Elk River police department’s operations manual, which provided that “[a]ll towed vehicles shall be inventoried.”  The manual also indicated that

[a]reas to be recorded on the inventory include the interior, glove box, trunk, packages, boxes, and other items contained in the vehicle.  * * * [The inventory] is for the protection of the owner/operator and the Police Department.


Boos had just begun the inventory search when he found the methamphetamine products in the trunk.  The trunk was an area that the department's policy required to be searched.  There is no evidence to suggest that the inventory search was merely a ruse to discover evidence of a crime.

We conclude that Boos’s initial inventory search of the car trunk was valid and the police subsequently lawfully used Boos’s discovery to obtain a search warrant for further search of the car trunk.  The district court properly denied appellant’s suppression motion.

2.         Speedy Trial

            In his pro se brief, appellant claims without citation to law that he was denied a right to a speedy trial.  Because appellant’s claim is not supported by any citation to law, we decline to address it.  Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).

3.         Restraint During Trial

            Appellant argues that the district court abused its discretion in forcing him to wear a leg restraint during his jury trial. 

The decision to require a criminal defendant to wear restraints in court is within the discretion of a trial court, and we will not overturn a trial court's decision absent an abuse of discretion. State v. Shoen, 578 N.W.2d 708, 713 (Minn.1998).
Minnesota Rule of Criminal Procedure 26.03, subd. 2(c) states:

 Defendants * * * shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order or security. A trial judge who orders such restraint shall state the reasons on the record outside the presence of the jury. Whenever physical restraint of a defendant * * * occurs in the presence of jurors trying the case, the judge shall on request of the defendant instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.


Requiring a defendant to appear in restraints is “an inherently prejudicial practice that is constitutionally permissible only when ‘justified by an essential state interest specific to each trial.’”  Shoen, 578 N.W.2d at 713 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340 (1986)).  In determining whether restraint is justified, we examine the following factors: (1) the seriousness of the charge; (2) the defendant's temperament and character; (3) the defendant's age and physical attributes; (4) the defendant's past record; (5) the defendant's prior escapes or attempted escapes; (6)  the defendant’s threats to cause a disturbance; (7) the size and mood of the audience; (8) the nature and security of the courtroom; and (9) any less restrictive available alternatives.  State v. Stewart, 276 N.W.2d 51, 62, n. 5 (Minn.1979) (citing State v. Tolley, 290 N.C. 349, 226 S.E.2d 353, 368 (1976)).  A trial court need not wait for a defendant to disrupt court proceedings before requiring restraints; the need for restraints may be inferred in advance “from attributes of the defendant or his prior conduct.”  Id. at 62; see also State v. Chambers, 589 N.W.2d 466, 475 (Minn.1999) (ruling that a trial court did not abuse its discretion in making a defendant wear an inconspicuous leg brace where the defendant was facing a serious charge, had a history of fleeing police, and was young and in apparent good health).

Here, the attending bailiffs and the prosecution requested that the district court require appellant to wear restraints.  The district court ruled:

[The court] note[s] that the underlying offense here does call for a presumptive commitment to prison under Minnesota Sentencing Guidelines.  According to the sentencing worksheet previously prepared it does note five prior felony convictions, and based upon my review of those convictions it does appear that a threshold showing has been made that if [appellant] is convicted of this felony offense he may fall within the definition of being a career offender.


Should that occur the Sentencing Guidelines generally are to be disregarded and the Court has discretion to sentence the Defendant up to the statutory maximum which in this case could be as much as 40 years.  In other words, with [appellant’s] criminal history and at least his potential for being sentenced as a career offender he could be facing a sentence which is longer than that which some convicted second-degree murder cases involve which is generally set at 25 years.


Considering all those factors the risks in this case are high and [appellant] is young and healthy and although there’s been no specific problems with him in the jail and [he] hasn’t posed any particular security risk to the jail based upon his past behavior, considering the nature of the underlying offenses and his history and the potential for a long period of incarceration I do find that restraints are both reasonable and necessary; however, the restraints will be limited to the leg brace which is not visible by someone simply looking at him.


The district court ruled that only one leg restraint would be used underneath appellant’s pant leg, out of sight of the jury, and that the jury would not be present at any time that appellant had to move.

The district court considered the health of appellant, his past crimes, and the seriousness of the charges against him and concluded that a leg restraint was necessary.  All of these are proper factors to be considered under Stewart.  We find no abuse of discretion in the district court’s decision to require appellant to wear the leg brace. 

4.         Sufficiency of the Evidence

Appellant claims that there was insufficient evidence to sustain his conviction of attempted first-degree controlled substance crime. 

In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Minn. Stat. § 152.021, subd. 2a (2002), provides that “a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.”  A criminal attempt occurs when a person, with the intent to commit a crime, does an act that is a substantial step toward, and more than preparation for, the commission of the crime.  Minn. Stat. § 609.17, subd. 1 (2002). 

            At trial, there was expert testimony that the items found in the trunk of appellant’s car were commonly used in the production of methamphetamine.  Investigator Baker testified that the trunk of appellant’s car was an active methamphetamine lab.  He testified that based on the evidence found in the trunk, the manufacturing of methamphetamine had already begun on the night in question.  Several items used to make methamphetamine ingredients were found in the trunk, together with some finished product methamphetamine.  Considering the totality of the evidence, we conclude that there was sufficient evidence for the jury to find that appellant had taken a substantial step toward producing methamphetamine.  

5.         Severity of Sentence

Appellant argues that the district court sentenced him to a more severe sentence because he invoked his right to a jury trial.

A defendant cannot be punished for exercising rights that are constitutionally guaranteed.  State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985), review denied (Minn. 19 Dec. 1985).  “[T]he fact that a ‘defendant exercises his constitutional right * * * to determine his guilt or innocence must have no bearing on the sentence imposed.’”  State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (quoting Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974)).  “[T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.”  Mollberg, 310 Minn. at 388, 246 N.W.2d at 471 (quoting United States v. Stockwell, 472 F.2d 1186, 1188 (9th Cir. 1973). 

            Before trial, appellant was offered a 74-month sentence in exchange for submission of his case to the district court on stipulated facts that would focus on whether appellant committed attempted first-degree controlled substance crime.  After the parties had selected a jury, the state offered appellant a 73-month sentence in exchange for his pleading guilty to attempted first-degree controlled substance crime.  Appellant decided to go ahead with a trial.  After the jury convicted appellant of attempted first-degree controlled substance crime, the district court sentenced him to 240 months’ imprisonment under the career offender statute.  During sentencing, the district court stated:

During the course of these proceedings, both during trial and post trial proceedings I’ve detected no sense of remorse at all with [appellant].   He has assumed absolutely no responsibility for any of his actions relative to this conviction, acceptance of no responsibility, and as such based upon [this] Court’s finding I do designate [appellant] as a career offender.


Appellant claims this statement shows that the district court punished appellant for not pleading guilty thereby inconveniencing the court.  We disagree.  There is no evidence that this statement or any other statement made by the district court shows an attempt to punish appellant because he chose to go to trial.  The fact that appellant was offered a shorter sentence at the plea-bargain stage is irrelevant.  The possibility of receiving a longer sentence after a trial is a risk a defendant takes, because the evidence presented at trial may be more compelling than the facts stated in the complaint.  State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983).  Here, the district court determined that a harsher sentence was appropriate after hearing all of the evidence and examining appellant’s past criminal history.  Thus, the district court based the sentence on the facts and not on a desire to punish appellant for having a trial.

6.         Length of Sentence

Appellant claims that the district court erred when it sentenced appellant for a term

nearly triple the presumptive sentence.  Appellant does not argue that the sentence imposed was beyond the district court’s authority, but rather, that the upward departure was too great in this case. 

The district court is free to impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the court “finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1095, subd. 4 (2000).  The district court must also find that the sentencing guidelines call for an executed sentence.  Id.  The district court found that appellant met all the criteria.

The pattern of criminal conduct noted by the district court included:

1.         Appellant’s leaving the state of California while on parole. 

2.         Appellant had been either in prison or on parole since 1988. 

3.         Appellant had never successfully completed any required period of parole.

4.         In 1997 appellant was convicted of the felony level possession of an instrument designed for the consumption of a controlled substance.

5.         Appellant had numerous drug arrests since 1981. 

6.         Five out of seven prior felony convictions were crimes of violence.

7.         Five out of seven prior felony convictions involved either the possession, sale, or the manufacturing of a controlled substance. 

8.         In 1991, defendant had committed a gross misdemeanor offense for possession of illegal drugs.

Given these findings, the district court did not abuse its discretion in concluding that appellant showed little likelihood of rehabilitation and that the career offender statute should be invoked.  The above factors, combined with the length of time appellant has been in the criminal justice system, support the district court’s sentencing appellant to the maximum statutory term under the career offender statute.


[1] The Elk River police department’s operations manual provides instructions on performing inventory searches.  It indicates that the interior of a car should be searched along with the trunk.  Officer Boos never searched the interior of the vehicle.