This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Derek John Marah,
Ramsey County District Court
File No. K7012712
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Keesha M. Gaskins, Special Assistant Public Defender, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402; and
John M. Stuart, State Public Defender, Marie Wolf, Office of the State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
At 2:00 a.m. on July 28, 2001, St. Paul Police Officers Matthew St. Sauver and Trygve Sand saw a car with a cracked windshield stopped at a traffic light. The two occupants in the vehicle appeared young enough to be juveniles violating curfew. The officers followed the car for two or three blocks and stopped it after pacing it traveling 36 m.p.h. in a 30-m.p.h. zone.
St. Sauver approached the driver’s side of the car and asked the driver, appellant Marah, for his driver’s license. After confirming that the car was registered to Marah, St. Sauver asked if there was anything illegal in the car. When Marah denied that anything illegal was in the car, St. Sauver told Marah that he could smell an odor of marijuana coming from the car and asked Marah again if there was anything illegal in the car. St. Sauver testified that Marah stuttered and looked at the ashtray a few times, and then St. Sauver asked Marah’s permission to search the car. St. Sauver testified that Marah said “okay” to his request.
Sand approached the passenger side of the car and saw a cup between the passenger’s legs. Sand asked the passenger what was in the cup, and the passenger replied that it was rum and coke. Sand asked the passenger to step out of the car, and the passenger consented to Sand searching his person. Sand did not handcuff the passenger or draw any weapons. Sand pat searched the passenger and found nothing illegal. Sand directed the passenger to wait on the curb between Marah’s car and the squad car.
St. Sauver testified: Marah said, “I don’t know why you are harassing me.” St. Sauver then asked Marah to get out of the car and requested permission to search his person. St. Sauver did not have a weapon drawn, spoke in a normal tone of voice, and made no threats or promises to Marah. St. Sauver advised Marah of the smell of marijuana emanating from the car, again asked him if it would be okay to search his person, and Marah said, “okay.” While searching Marah’s person, St. Sauver asked again whether there was anything illegal in the car. Marah said, “Well, there may be a couple of joints in there, but that’s it.” In one of Marah’s pockets, St. Sauver found a substance that he believed was methamphetamine. St. Sauver handcuffed Marah, placed him in the squad car, informed him that he was under arrest, and advised him of his Miranda rights.
Both Sand and St. Sauver testified that they searched the car after Marah was arrested. The officers found a marijuana cigarette and marijuana residue in the car, and Sand found a handgun in the trunk.
Marah was charged by complaint with one count of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). The district court denied Marah’s motion to suppress evidence found during a warrantless search of his person. The parties stipulated to the facts and submitted the case to the district court for decision. The district court found Marah guilty and imposed a 36-month sentence.
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). But this court applies the “clearly erroneous” standard of review to the underlying factual findings. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
A search of a vehicle with the owner’s valid consent is a lawful search. However, to support a claim that consent was given, the state must prove that it was given freely and voluntarily. The voluntariness of consent is not easily defined. It must be determined after a careful examination of the circumstances surrounding the giving of the consent.
Id. at 579 (citations omitted).
[A]n officer has a right to ask to search and an individual has the right to say no. Questioning by the police, for the innocent as well as the criminally-implicated, even under benign circumstances, can be an intimidating experience; but reasonable persons understand that this is part of the “accommodation of the complex of values” involved. Consequently, involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned. Rather, it is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment intervenes. Consent must be received, not extracted.
“Voluntariness” is a question of fact and it varies with the facts of each case. The test is the totality of the circumstances.
State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (citation omitted).
“[T]he Fourth Amendment does not require for a voluntary search that the defendant know or be told that he has a right to refuse.” Id. at 881.
The district court found:
Upon stopping the vehicle, the officer detected the odor of marijuana emanating from inside the vehicle and from [Marah]. When asked if there was anything illegal in the vehicle, [Marah] responded “possibly joints in the ashtray.” Having a reasonable suspicion of criminal activity, the officer asked [Marah] for permission to search his person and permission was granted by [Marah]. The officer did not use coercive behavior or language.
* * * *
Upon searching [Marah], the police found suspected methamphetamine. [Marah] was generally placed in the back of the squad car and read his Miranda rights.
The police conducted an inventory search of [Marah’s] car incident to his being arrested and found the handgun and ammunition in question.
Marah argues that the district court’s finding that St. Sauver did not use coercive language is not the test to determine whether Marah consented to the search and that the court’s finding that St. Sauver’s behavior was not coercive was clearly erroneous. Marah contends that, given the totality of the circumstances of the traffic stop, he did not voluntarily consent to St. Sauver’s search of his person. Marah contends that the following circumstances demonstrate that his consent was not voluntary: his responses to St. Sauver’s repeated requests to search his person; the traffic stop was for a minor equipment violation, occurred at 2:00 a.m., and two officers were present; Marah did not believe that he had a right to refuse St. Sauver’s request to search his person; and St. Sauver did not permit him to leave the traffic stop.
We agree with Marah that whether St. Sauver used coercive language is not the test to determine whether his consent was voluntary. As stated in Dezso, “[t]he test is the totality of the circumstances.” 512 N.W.2d at 880. But the district court did not solely rely on the absence of coercive language. The court specifically stated, “The officer did not use coercive behavior or language.” We understand this statement to mean that the officer did not use language or conduct to coerce Marah.
It is also true that most of the circumstances that Marah cites as proof that his consent was not voluntary were among the circumstances present in George and Deszo, which are both cases in which the supreme court concluded that a driver did not voluntarily consent to a search. But the mere presence of these circumstances is not sufficient to demonstrate that consent is not voluntary. As stated in Dezso, consent is involuntary when the totality of the circumstances make an encounter coercive, and the right to say no to a search is compromised by a show of official authority. 512 N.W.2d at 880.
In Dezso, the supreme court concluded:
From the nature of the questions asked and the answers given, it is not all that clear that defendant was voluntarily consenting to a search of his wallet. Arguably, defendant’s answers seem not so much to indicate willingness to allow the search as an effort, under intimidating circumstances, to fend off a search with equivocal responses.
Id. at 881.
And in George, the supreme court stated:
As in Dezso, George’s responses to Trooper Vaselaar appear more in the nature of “an effort * * * to fend off a search with equivocal responses.” Like Dezso, George was stopped on an alleged minor traffic violation. Like Dezso, each response by George to the question of the trooper led to additional queries. Like Dezso, George was unaware that he had a right to refuse consent to to the search or to leave, and in George’s case, he was confronted by not one, but two law enforcement officers.
George, 557 N.W.2d at 581. The court then concluded that “[e]quivocation as to consent in such intimidating circumstances is not enough” to meet the state’s burden of proving that consent was given freely and voluntarily. Id. In neither Dezso nor George did the supreme court conclude that under the totality of the circumstances, the police encounter with the driver was coercive. Instead, in both cases, the supreme court described the circumstances as intimidating and concluded that due to the equivocal nature of the driver’s responses, the state had not proven that the driver consented to a search.
In contrast, when Marah was asked, “You gave sergeant – or not sergeant – Officer St. Sauver permission to search you?” he answered, “To search me, yes.” Marah later explained:
I felt like I was in a position where if I gave them permission, it didn’t matter, because, you know, the long arm of the law, I can’t really do anything anyways. If I say no, well, then they can just pat me down anyways if they want to and I have had that happen before, so I – you know, of course, I am going to say yeah. What else am I going to say?
Unlike Dezso and George, Marah did not provide an equivocal response when St. Sauver asked if he could search Marah. The district court’s finding that Marah gave St. Sauver permission to search is not clearly erroneous. Marah’s testimony also indicates that he did not consent to the search because of something the police did. Marah consented because he believed that he had no other choice. A search, however, is not involuntary simply because the subject of the search does not know that he has a right to refuse. Dezso, 512 N.W.2d at 881.
It is apparent that the police questioning was an intimidating experience for Marah. But the intimidating circumstances did not make Marah’s consent involuntary unless a show of official authority by the police made the encounter coercive. Because the district court’s factual determination that the officer did not use coercive behavior or language is not clearly erroneous, the state met its burden of showing by a preponderance of the evidence that Marah’s consent to the search of his person was voluntary.
 The district court did not prepare a written order; it announced its decision from the bench on December 4, 2001, at the end of a Rasmussen hearing that had been continued from October 15, 2001. Testimony was taken on October 15, and counsel submitted written memoranda of law before the December 4 hearing.