This opinion will be unpublished and

may not be cited except as provided by

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






Carnell Turner, petitioner,





State of Minnesota,



Filed March 4, 2003


Willis, Judge


Ramsey County District Court

File No. K5003234


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN  55102-1657 (for respondent)


            Considered and decided by Willis, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Carnell Turner was convicted of illegal possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b)(2000), after police discovered a pistol during a search of the car Turner was driving.  Turner petitioned for postconviction relief, claiming that the search was invalid.  On appeal from the denial of his petition for relief, Turner argues that the district court erred by concluding that the pistol was discovered during a valid search incident to a lawful arrest.  Because the district court did not err, we affirm.


            On October 9, 2000, St. Paul Police Officer Donald Chouinard stopped appellant Carnell Turner after seeing the car Turner was driving cross the center line of the street twice while it was traveling 45 miles per hour in a 30 m.p.h. zone.  When Chouinard asked Turner for his license, the officer immediately noticed the odor of alcohol.  Chouinard asked Turner to step out of the car for a field sobriety test, which Turner failed.  The officer concluded that Turner might be under the influence of alcohol and escorted him to the officer’s squad car.  At that point, Turner started to run, and Chouinard tackled him.  A struggle ensued, and Officer Shawn Filiowich, who had just arrived at the scene to assist, intervened by spraying Turner with a chemical irritant.  Turner surrendered and was placed in Chouinard’s squad car.

            Chouinard decided to have the car towed; he told another officer who arrived at the scene, Abraham Cyr, that Turner was under arrest and requested that Cyr search the car.  Cyr found a loaded and operable pistol under the driver’s seat.

            Chouinard then learned from dispatch that the impound lot was accepting only emergency tows; he understood that to mean towing was authorized only if the vehicle was used in a major crime or was blocking a street.  Because the officers believed that an emergency tow was not authorized, they neither prepared an inventory report nor ordered the car towed.

            At an omnibus hearing, the district court concluded that the search of the vehicle Turner had been driving was valid as incident to a lawful arrest and denied his motion to suppress the pistol.  A jury found Turner guilty of possessing a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000).[1]  Turner petitioned for postconviction relief, claiming that the pistol should have been suppressed because it was discovered during an illegal search.  The district court denied his petition.  This appeal follows.


            This court reviews de novo a postconviction court’s determination of a legal issue.  See Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975) (upholding factual findings where evidence existed to support them but independently reviewing legal determination based on found facts); Garza v. State, 619 N.W.2d 573, 576 (Minn. App. 2000) (determining whether evidence should be suppressed is reviewed de novo when facts are not in dispute and district court’s decision is a question of law).

            Turner argues that the search was neither valid as incident to a lawful arrest nor as an inventory search.  The state responds that the search was justified under either theory.

            Although warrantless searches are generally prohibited, a warrantless search incident to a lawful arrest is permitted.  State v. Miranda, 622 N.W.2d 353, 357 (Minn. App. 2001).  The Minnesota Supreme Court has adopted the “bright line” rule established in New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981), which

authoriz[es] a contemporaneous search of the passenger compartment of a car, including any containers found therein, incident to the arrest of an occupant without the police having to make a particularized showing of need to conduct the search in order to find weapons or evidence. 


State v. White, 489 N.W.2d 792, 795-96 (Minn. 1992).  A search is made incident to a lawful arrest if probable cause for the arrest existed before the search.  State v. Wasson, 602 N.W.2d 247, 252 (Minn. App. 1999), aff’d, 615 N.W.2d 316 (Minn. 2000).

            Relying on State v. Robb, 605 N.W.2d 96 (Minn. 2000), Turner argues that the search incident to his arrest was invalid because he was not an “occupant” of the vehicle when the search occurred.  But Robb is distinguishable:  the defendant in that case was not an “occupant” of the automobile that was searched because the officers first approached the defendant when he was in a boat on a lake and, therefore, a significant distance from his sport utility vehicle, where the officers subsequently found a gun.  See id. at 98-99.  The supreme court stated that

Belton does not apply when the arrestee is first approached while too far away from the vehicle, both in distance and in time, to have an opportunity to conceal a weapon, contraband or evidence therein.


Id. at 101 (emphasis added).  Here, Turner was the driver of a car when Officer Chouinard first approached him, and he had the opportunity, while in the car, to conceal a weapon or contraband.  He was, therefore, an “occupant” for purposes of the Belton rule.  SeeWhite, 489 N.W.2d at 792-96 (holding that search incident to lawful arrest was valid when officer apprehended defendant who had just exited his vehicle and started to leave the scene).

            Turner also argues that the search of the vehicle was not “contemporaneous” with his arrest because the search occurred after he was placed in custody.  Although there was a short delay in searching the vehicle because of Turner’s attempt to escape custody, the search was contemporaneous with his arrest.  See Belton, 453 U.S. at 455-57, 462-63, 101 S. Ct. at 2861-62, 2865 (holding that search of vehicle was contemporaneous when performed after four defendants were arrested, patted down for weapons, separated, given Miranda warnings, and individually searched).

            Finally, Turner argues that the search of the vehicle falls outside the Belton rule because he was in police custody when the car was searched.  The supreme court has specifically rejected that argument, stating that

the fact that the defendant is in the squad car at the time the search occurs is irrelevant because Belton expressly foreclosed the need for a case-by-case determination of the arrestee’s control of the car.  Thus, under Belton, an incidental search of the car is allowed even after the defendant is placed in the squad car.


White, 489 N.W.2d at 796. 

            Because there is sufficient evidence to support the district court’s determination that the search of the vehicle Turner was driving was valid as incident to a lawful arrest, the district court did not err by denying Turner’s petition for postconviction relief.

            Because we have determined that the search was valid as incident to a lawful arrest, we do not reach the issue of whether it was a valid inventory search.



[1] Turner previously was convicted of a crime of violence, as defined by Minn. Stat. § 624.712, subd. 5 (2000).