This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-464

 

State of Minnesota,
Respondent,

vs.

Todd Thomas Malley,
Appellant.

 

Filed March 18, 2003

Affirmed

Peterson, Judge

 

Mille Lacs County District Court

File No. K6001156

 

 

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

 

 

Janelle P. Kendall, Mille Lacs County Attorney, Mille Lacs Courthouse, 635 Second Street Southeast, Milaca, MN  56353 (for respondent)

 

 

John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public Defender, 46 East Fourth Street, Suite 1042, Minnesota Building, St. Paul, MN  55101 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

 

In this appeal from a conviction of conspiracy to commit first-degree controlled-substance crime, appellant Todd Thomas Malley argues that the owner of a building that was searched by police did not have authority to consent to a warrantless entry by police.  We affirm.

FACTS

            A property owner contacted the Mille Lacs County Sheriff’s Department because she believed that there were drugs on the property where her residence and some outbuildings were located.  Sheriff’s Deputy Mark Johnson went to the property and met with the owner.

The owner told Johnson:  Three days earlier, she had talked to Malley about him renting one of her outbuildings to operate an auto-painting business, but they did not sign a lease, she did not receive any money from Malley, and she did not give him a key.  She wanted to draw up a lease before they reached a final agreement.  The owner had allowed Malley to leave some items in the outbuilding.  After Malley dropped off the items, the owner smelled a strong odor of gas in the outbuilding and saw white powder on a table, numerous glass jars with tubes coming out of them, a small propane tank, aluminum foil, and a hazardous-waste sign.

            The owner signed a consent form authorizing Johnson to search her property.  When the owner unlocked the outbuilding, Johnson smelled what he believed was anhydrous ammonia.  The owner and Johnson entered the building together.  Inside, Johnson saw glass jars with plastic tubes coming out of them, a cloud of anhydrous ammonia or a cloud of smoke in the air, a can of Toluene, and a propane tank with hoses coming out from the top.  Johnson recognized the items as items used to manufacture methamphetamine, and the owner identified them as belonging to Malley.  Johnson believed it was hazardous to remain inside, so he and the owner left and locked the door behind them.

            Johnson called Alan Marxhausen, an investigator for the Mille Lacs County Sheriff’s Department, to come and assist.  When Marxhausen arrived, Johnson told him that they had the owner’s consent to search and brought him to the outbuilding.  Johnson unlocked the service door, and the two of them went inside.  Marxhausen saw the items that Johnson had seen earlier.  Marxhausen determined that it would take him eight hours to process the scene, so he decided to return in the morning rather than work through the night.  The owner told Marxhausen that she had agreed to rent the outbuilding to Malley to do autobody work and had allowed him to bring some items into the outbuilding but that she and Malley had not reached a final agreement on the lease terms, including the amount of rent.

            Marxhausen returned the following morning.  He and another investigator photographed the items in the building and removed the tanks of anhydrous ammonia.  At about 1:15 p.m., an investigator from the Mille Lacs County Sheriff’s Department arrived with a signed search warrant authorizing a search of a locked red toolbox in the outbuilding and seizure of all of the items in the outbuilding.

Malley was charged by complaint with one count each of conspiracy to manufacture methamphetamine in violation of Minn. Stat. §§ 152.096, subd. 1, .021, subds. 2a, 3(a) (2000); first-degree controlled-substance crime (manufacture of methamphetamine) in violation of Minn. Stat. §§ 152.021, subds. 2a, 3(a), 609.05, subd. 1 (2000); and containment, tampering, theft, or transportation of anhydrous ammonia in violation of Minn. Stat. §§ 18C.201, subd. 6(a), 18D.331, subd. 5, 609.05, subd. 1 (2000).  Malley moved to suppress evidence discovered during the warrantless search of the outbuilding.  Malley argued that because the owner had agreed to rent the outbuilding to him to operate a business, he had a reasonable expectation of privacy in the building, and the owner lacked authority to consent to the search.  The district court denied Malley’s motion.

            The district court concluded that Malley lacked standing to contest the validity of the search of the outbuilding:

[Malley] had no legitimate Fourth Amendment expectation of privacy to challenge the search and seizure of the items found in the [outbuilding] since he did not own the building, he did not have a key for the building, nor did he have a signed lease for the rental of the building.  [Malley] also contended that he had a reasonable expectation of privacy in the [outbuilding] as a business owner; however, there was no evidence presented that he ran a business from the [outbuilding].  Furthermore, the items that were found in the [outbuilding] were left out in plain view inside of the [outbuilding].

 

* * * *

 

The officers reasonably concluded that [the owner] had the authority to consent to a search of the [outbuilding].  She owned the property, and although she intended to rent the [outbuilding] to [Malley], no lease had been signed, no money had been received in rent, and she had not given him a key yet.  She had simply allowed [Malley] to drop off some things a couple days earlier.

 

            Two jury trials were conducted.  The first trial ended when the district court granted Malley’s motion for a mistrial.  In the second trial, the jury found Malley guilty as charged.  The district court sentenced Malley on the count of conspiracy to manufacture methamphetamine. 

D E C I S I O N

1.         When reviewing pretrial orders concerning the suppression of evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The district court’s findings of fact will be upheld on appeal unless clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

The Fourth Amendment generally requires a warrant before the government can search the home or business of a private individual.  If the defendant has a reasonable expectation of privacy in the area searched, then the police should obtain a warrant before searching.

 

State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996) (citation omitted).  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  One of those exceptions is a search conducted with consent.  State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  The state bears the burden of showing that an exception applies; otherwise, evidence seized as a result of a warrantless search will be suppressed.  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).

            The district court denied Malley’s motion to suppress on two grounds:  Malley had no reasonable expectation of privacy in the outbuilding; and the officers reasonably concluded that the owner had authority to consent to a search of the outbuilding.  Malley argues that he and the owner had entered into an enforceable lease agreement for him to operate a business in the outbuilding and, therefore, the district court erred in concluding that he had no reasonable expectation of privacy in the outbuilding and that the owner had apparent authority to consent to a search of it.

Reasonable expectation of privacy

The United States Supreme Court has explained that “in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

 

State v. Krenz, 634 N.W.2d 231, 234 (Minn. App. 2000) (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998)) (other quotation omitted).

A defendant who cannot demonstrate a legitimate expectation of privacy relating to the area searched or the item seized will not have standing to contest the legality of the search or seizure.

 

Richards, 552 N.W.2d at 204. 

The evidence supports the district court’s findings that Malley failed to present evidence that he ran a business from the outbuilding; Malley did not own the outbuilding, have a key for it, or a signed lease for its rental; and the items found in the outbuilding were in plain view.  Malley told the owner that he wanted to lease the building to operate a business, but he had not yet begun operating the business.  The owner told the officers that she had allowed Malley to drop off some items in the outbuilding but that they had not reached a final rental agreement, she had a key to the outbuilding, and she had not given him a key or received any money from him.  Based on either property law or societal mores, it was not reasonable for Malley to think that the owner had given up her right to access the building.  The district court did not err in concluding that Malley had no reasonable expectation of privacy in the outbuilding.

            Also, because Malley left his items in plain view, and none of the items were the sort of item that one keeps private, Malley’s relationship to the items seized does not support a legitimate expectation of privacy.  See Richards, 552 N.W.2d at 204-05 (discussing standing to contest search based upon nature of relationship between business owner and items seized).

Consent

            Consent to a search may be granted by a third-party who has common authority over the premises.  United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974); State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).  Landlords usually may not consent to a police search of anything other than the public areas of an apartment complex, unless the tenant has abandoned the property.  State v. Richards, 552 N.W.2d 197, 204 n.2 (Minn. 1996) (citing Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960)).  However, even where a common authority does not exist, consent to police entry is valid, if under an objective standard, a police officer reasonably believes that the third party had authority to give consent.  Illinois v. Rodriquez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 2801 (1990); Thompson, 578 N.W.2d at 740.  Even if the officer has made a mistake of fact, the entry will nevertheless be proper if apparent authority exists.  Rodriquez, 497 U.S. at 188-89, 110 S. Ct. at 2801; 3 Lafave, Search and Seizure § 8.3(g), at 746-47 (3d ed. 1996).

            The district court did not find that Malley and the property owner had entered into an enforceable lease but rather that the owner “intended” to rent the outbuilding to Malley.  The evidence supports a finding that no enforceable lease had been created.  Although Malley asserts that he and the owner had agreed on all essential terms, the owner told the officers that she would not finalize the lease agreement until a written agreement was signed and told Marxhausen that she and Malley had not yet reached a final agreement on lease terms, including the amount of rent.  There is no contract when any essential term has yet to be agreed upon.  Malevich v. Hakola, 278 N.W.2d 541, 544 (Minn. 1979).  Malley cites no authority holding that a property owner lacks authority to consent to a search during lease negotiations.  Absent such authority, given the owner’s representations to the officers, it was reasonable for the officers to conclude that the owner had authority to consent to the search.

2.         In a pro se brief, Malley argues that the evidence was insufficient to support his conviction of conspiracy to manufacture methamphetamine because there was only circumstantial evidence of his guilt.  A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  As long as the circumstances proved satisfy this test, the circumstantial evidence is entitled to as much weight as any other kind of evidence.  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).

Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.

 

State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (citation omitted).

            Malley argues that the rational hypothesis exists that one of his employees and another person were manufacturing methamphetamine and Malley was unaware of their actions.  A methamphetamine lab was found in a building that Malley planned to rent and where Malley had dropped off some items a few days earlier.  Malley told the owner that he planned to operate a business from the outbuilding, but no items associated with the business were found in the building.  Police apprehended Malley following a high-speed car chase.  During the chase, police saw bags of white powder being thrown out of the car in which Malley was a passenger.  Police found methamphetamine in the car and $2,550 cash on Malley’s person.  Considering the evidence as a whole, Malley’s theory of innocence is unreasonable.

            Malley also argues that he did not receive a fair trial because the first trial ended in a mistrial.  But the mistrial was granted at Malley’s request.  It is not apparent how granting Malley’s request for a mistrial prevented him from later receiving a fair trial.

Malley also argues that he received ineffective assistance of counsel. 

To prevail on a claim of ineffective assistance of counsel, [defendant] must affirmatively show that his attorney’s representation fell below an objective standard of reasonableness and so prejudiced him that there is a reasonable probability that, but for counsel's errors, the trial outcome would have been different.

 

State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999) (citation omitted), review denied (Minn. Mar. 14, 2000).

            When determining whether counsel’s representation fell below an objective standard of reasonableness,

[a] strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance.  Particular deference is given to the decisions of counsel regarding trial strategy.

 

State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citations omitted); see also State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (“Appellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy.”).

What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel.

 

Doppler, 590 N.W.2d at 633.

            Malley objects to his attorney’s trial tactics.  But his disagreement with the trial tactics does not demonstrate that his attorney’s representation fell below an objective standard of reasonableness.

            Finally, Malley makes several claims of prosecutorial misconduct, but he cites to no evidence in the record that supports his claims.

            Affirmed.