This opinion will be unpublished and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
State of Minnesota,
James Virgil Staples,
Filed May 6, 2003
McLeod County District Court
File No. K501398
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and
Michael K. Junge, McLeod County Attorney, Mark Metz, Assistant County Attorney, 830 – 11th Street East, Glencoe, Minnesota 55336 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)
Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant James Staples challenges his first-degree controlled substance conviction for possessing approximately 30 grams of cocaine. He claims that the police officers did not have probable cause for any of the warrantless searches they conducted and that the district court abused its discretion when it refused to depart from the presumptive sentence. We affirm.
Charges in this case arose from a report of a suspected burglary at a Hutchinson trailer home. On April 13, 2001, a neighbor from across the street observed a man knocking at the door of the residence. After receiving no answer, the man removed a screen from a window and crawled inside. Moments later, the man let a small dog outside. The concerned neighbor called the Hutchinson Police Department, and three officers responded. One officer spoke with a neighbor and learned that the homeowner worked with the neighbor’s wife at Hutchinson Medical Center. The neighbor offered to call his wife at work and find out if the homeowner was expecting company. The neighbor reported back that the homeowner was, in fact, expecting company, and that she forgot to leave a key for her expected visitor, a man she knew as “Jim.”
One officer approached the door and knocked while the other officers maintained positions around the perimeter of the home. Appellant opened the door. Although the officer testified that he did not believe a burglary was currently in progress, he stepped just inside the door, explained that the police had received a report of a possible burglary, and asked appellant for identification. He testified that he wanted to identify appellant and verify with the homeowner that appellant was the person she was expecting. Appellant told the officer that he was an invited guest and produced a note addressed to him from “Carol” confirming that she was expecting him. Appellant did not know Carol’s last name. Appellant told the officer that his name was “James Virgil Stapleton,” but that he had no identification. A search under the name “James Virgil Stapleton” revealed nothing.
While the two men conversed, a small dog paced in and out of the doorway, and the officer noticed a brown glass vial with a black cap on the threshold of the doorway; the vial had not been there earlier. The vial was wet and slimy and smelled of dog saliva. Appellant denied that the vial belonged to him and said he thought that the dog had carried the vial inside. The officer also saw a black film canister on the kitchen table near where appellant was seated and suspected the item was drug-related. He asked appellant what was in it; appellant said film. When the officer asked if he could look inside, appellant admitted that the canister contained marijuana. The officer also opened the glass vial and saw a cream-colored powder. He called the other officers inside the trailer, and an NIK test was used to determine whether the substance in the glass vial was methamphetamine. The test produced a negative result. The officer who performed the test suspected the substance was cocaine but did not have the appropriate NIK test to detect the presence of cocaine. Bureau of Criminal Apprehension (BCA) testing later determined that the powder was 3.0 grams of a substance containing cocaine.
While talking to the officers prior to his arrest, appellant rummaged through a black duffel bag at his feet and pulled out a scale. Appellant remarked that the scale was not illegal because it had not been used. One of the officers also noticed a manila envelope addressed to “James Staples” protruding from the bag. When asked whether his name was Staples or Stapleton, appellant admitted that he had given the officers a false name. Appellant explained that he suspected there was an outstanding warrant for his arrest and that he gave a false name to avoid arrest so that he could visit his son. A search under appellant’s true name, Staples, revealed an outstanding warrant. An officer then arrested appellant pursuant to the warrant, cuffed him, and performed a pat-down search of his person. Additional controlled substances were found in the coin pocket of appellant’s blue jeans. BCA testing revealed that the powder was 1.5 grams of a substance containing cocaine. The homeowner arrived at this point, but she was not allowed to enter the house.
One of the officers also searched the duffel bag at appellant’s feet. Inside he found numerous small Ziploc bags and hypodermic syringes. In a second shopping bag on the table, within arm’s reach of appellant’s seat, the officer found a quart-size Ziploc bag filled with chunks of what he believed to be methamphetamine. BCA testing indicated that the chunks in the large Ziploc bag were 24.9 grams of a substance containing cocaine.
The state charged appellant with one count of first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (2000). After a contested omnibus hearing, the district court denied appellant’s suppression motion. Appellant agreed to a stipulated-facts trial to preserve his Fourth Amendment issues for appeal. The district court found appellant guilty of first-degree controlled substance crime.
Appellant moved for a downward durational departure on two bases. First, he asserted his amenability to probation because he had a zero criminal history score and had successfully completed chemical-dependency treatment while awaiting sentencing. Second, appellant argued that, as a matter of fairness, he should receive a downward dispositional departure. Specifically, he contended that in the First Judicial District, approximately half of other first-time drug offenders with no criminal history points have received downward dispositional departures. Appellant provided sentencing statistics outlining the breakdown, by judicial district, of departures for first-degree controlled substance convictions. The state sought the presumptive 86-month sentence. The district court denied appellant’s motion and executed an 81-month sentence. This appeal followed.
Appellant maintains that the district court erroneously denied his suppression motion because the officers did not have probable cause for the warrantless search of his personal effects prior to his arrest and the warrantless search of his bags and his person following his arrest. Appellant also claims the search of the glass vial was unlawful because the police did not have probable cause to search it. The state counters by arguing, for the first time on appeal, that appellant lacked standing to challenge the searches. Although the state acknowledges that it did not raise this issue at the omnibus hearing or in its brief to the district court, the state maintains that this court should entertain the claim in the interests of justice. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (holding that appellate courts ordinarily will not review issues raised for the first time on appeal unless a decision is necessary in the interests of justice). In the alternative, the state requests that this court remand the standing issue to the district court for appropriate findings.
Standing is a threshold determination in a Fourth Amendment case, but the issue may be waived for failure to raise it at the proper time. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding state waived standing issue by failing to raise issue for factual development by district court). The state contends that it did not waive the issue because appellant, in his trial memoranda, argued that he had a legitimate expectation of privacy. We find the state’s argument unpersuasive and conclude that the state waived the issue of standing.
We move now to the probable cause analysis itself. When reviewing a pretrial suppression order, this court may independently examine the facts in the record and decide, as a matter of law, whether the district court erred in reaching its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The de novo standard of review applied to probable cause determinations for warrantless searches is not to be confused with the substantial deference standard of review of probable cause determinations for issuance of a search warrant. State v. Rochefort, 631 N.W.2d 802, 804-05 (Minn. 2001), review denied (Minn. Dec. 19, 2001).
Here, appellant challenges the police officer’s initial, warrantless entry into the home. Specifically, appellant notes that, by the time the officer knocked on the door, one of the neighbors had already informed him that the homeowner was indeed expecting a guest. Appellant further notes that the officer testified that when he knocked on the door, he no longer suspected that a burglary was in progress. Thus, appellant claims, there were no exigent circumstances justifying a warrantless entry. We disagree.
Police may walk up to a house, knock, and make preliminary inquiries of anyone who answers, just the same as any other citizen. State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990). Appellant broke into the home by removing a screen and crawling through a window. Even if the police approach to the home did implicate the Fourth Amendment, it was eminently reasonable and prudent for the officer to knock on the door and attempt to determine appellant’s identity to verify that he was in fact the man the homeowner was expecting.
While the officer was trying to ascertain appellant’s identity, the homeowner’s dog apparently dropped a brown glass vial at the officer’s feet. The officer asked appellant if the vial belonged to him, but appellant denied ownership. Appellant acknowledged, however, that the black film canister contained marijuana. The officer opened the vial and the canister and found suspected controlled substances.
Appellant argues that the officer could not have reasonably believed that appellant owned the brown glass vial since appellant did not own the dog. Appellant then postulates that because this initial suspicion was unreasonable, all evidence discovered thereafter was tainted, including discovery of appellant’s identity, which led to the discovery of the arrest warrant. We reject this argument. By virtue of the fact that appellant admitted that the film canister contained controlled substances, the officer also had probable cause to suspect that the vial contained controlled substances.
Moreover, even if the officer lacked probable cause to search the vial, the fruits of the searches that followed were not tainted because the approximately 25 grams of cocaine would have been inevitably discovered in light of the independent discovery of appellant’s true identity, which in turn led to the discovery of the valid arrest warrant. See, e.g., Harris, 590 N.W.2d at 105 (holding evidence gained from illegal warrantless search admissible through “inevitable discovery” exception). Thus, apart from the contents of the glass vial, the officer’s inquiries uncovered evidence of other crimes that provided support for a warrantless arrest.
Appellant claims that the next illegal search occurred when the officer pulled an envelope out of appellant’s duffel bag. But at this point, officers had probable cause to arrest appellant for controlled-substance violations. Moreover, according to the officers on the scene, the envelope was in plain view, sticking out of a bag that appellant was rummaging through. The officers did not remove the envelope; rather, one officer observed the envelope still in appellant’s bag and another officer questioned appellant about the name discrepancy. Appellant revealed his true name at this point. The envelope was in plain sight and the officers simply questioned appellant about it. Discovery of the envelope led to discovery of the arrest warrant, which led to appellant’s arrest.
Police, on incident-to-arrest grounds, may conduct [a] warrantless search—either at the scene of the arrest or at the police station—of an arrestee’s pockets, wallet and other containers immediately associated with the person of the arrestee without having to articulate any need in the particular instance for such a search.
State v. Rodewald, 376 N.W.2d 416, 417 (Minn. 1985). A search incident to a lawful arrest allows law enforcement to prevent destruction of evidence as well as to thwart any attempts by the suspect to retaliate using a weapon. State v. Ture, 632 N.W.2d 621, 628 (Minn. 2001). The scope of this search is broad, and it is determined by the officer as “a quick ad hoc judgment” at the time of arrest. Geer v. State, 406 N.W.2d 34, 36 (Minn. App. 1987) (quotation omitted), review denied (Minn. July 15, 1987). Moreover, law enforcement personnel may search a suspect incident to arrest before effectuating the arrest so long as they have probable cause to arrest. In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).
Here, a police officer confirmed the existence of an arrest warrant and then arrested appellant. During a pat-down search, the officer found cocaine in appellant’s pants pocket. Next, another officer searched appellant’s bags incident to his arrest. According to that officer, the space was so crowded that “[r]eally in that area nothing is out of anybody’s reach. It’s a small area that we were conducting business in there.” Appellant could have brushed the duffel bag with his foot and the shopping bag sat on the table, approximately 18” away from where appellant sat. The discovery of the large bag of cocaine in appellant’s shopping bag was incident to appellant’s warranted arrest. See, e.g., Geer, 406 N.W.2d at 36 (affirming search of duffel bag as incident to lawful arrest where defendant lay face-down on ground, 35-40 feet from bag).
We conclude that the district court properly denied appellant’s suppression motion because: (1) the police did not need articulable suspicion, or probable cause, to walk up to the house, knock, and ask questions of Staples, especially in light of appellant’s suspicious means of entry; (2) the officers saw the film canister in plain view, and appellant admitted it contained marijuana; (3) the admitted illegal contents of the film canister gave police probable cause to believe a drug offense was occurring, and exigent circumstances to enter the house; (4) because police had probable cause to arrest Staples for a drug offense, they could search his person and nearby possessions incident to his arrest; (5) the envelope, and the name written on it, were in plain view of police, who lawfully obtained Staples’ admission that he had given police a false identification; (6) based on appellant’s admission to his true name, police discovered the arrest warrant; (7) they lawfully arrested appellant; and (8) incident to that arrest, they lawfully searched his person as well as the shopping bag nearby.
Alternatively, appellant argues that, in the event this court affirms his conviction, his sentence should be modified because imposition of the presumptive guidelines sentence is patently unfair. We disagree.
The well-settled standard of review for imposition of the presumptive guidelines sentence is very narrow. “An appellate court generally will not review the trial court’s exercise of its discretion in cases where the sentence imposed is within the presumptive range.” State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988) (quotation and citation omitted), review denied (Minn. Apr. 15, 1988). “Presumptive sentences are seldom overturned.” State v. Andren, 347 N.W.2d 846, 848 (Minn. App. 1984) (citation omitted). As the supreme court explained in the seminal case of State v. Kindem,
[W]e do not intend entirely to close the door on appeals from refusals to depart. However, we believe it would be a rare case which would warrant reversal of the refusal to depart. * * * [T]he Guidelines state that when substantial and compelling circumstances are present, the judge “may” depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This principle holds true even in cases where mitigating or aggravating factors are present; the district court is permitted to place heavy emphasis on the presumptive sentence. See, e.g., State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (holding clear presence of mitigating factor did not obligate district court to depart); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (stating reviewing court will not ordinarily interfere with sentence in presumptive range even where grounds exist to justify departure). According to the guidelines, presumptive sentences are presumed appropriate in every case. Minn. Sent. Guidelines cmt. II.D.01. Very few cases present such “substantial or compelling aggravating or mitigating factors” that the presumptive sentence is deemed inappropriate. Id. Even so, departure remains permissive and discretionary, not mandatory, for the district court. See id.
Here, appellant moved for a downward dispositional departure. A downward dispositional departure is a local sentence—namely jail time, probation, and/or treatment—imposed on a defendant in lieu of a guidelines commitment to the commissioner of corrections. See Minn. Sent. Guidelines cmt. II.C.01. But before a district court may grant a dispositional departure, it must be satisfied that this particular defendant meets the appropriate standards. Staying execution of a presumptive prison sentence is acceptable where a defendant demonstrates “particular amenability to individualized treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Particular amenability is demonstrated by numerous factors including: (1) defendant’s age; (2) defendant’s remorse; (3) defendant’s prior record; (4) defendant’s cooperation; and (5) defendant’s social support. Id.
In support of his motion, appellant submitted sentencing data for each judicial district, compiled by the Minnesota Sentencing Guidelines Commission (MSGC). That data indicates that in 1999 with respect to the First Judicial District, 17 offenders with a criminal history score of zero were convicted of controlled-substance crimes in the first degree. Eight (47.1%) of these offenders received downward dispositional departures, while the remaining nine (52.9%) received the presumptive guidelines sentence.
Several problems are evident in relying on this data as a basis for departure. First and foremost, appellant essentially asks this court to second-guess the district court’s imposition of the presumptive guidelines sentence. Given our narrow scope of review, we decline to do so. District courts are permitted to place great emphasis on the presumptive sentence, even in the face of mitigating factors. Back, 341 N.W.2d at 275. Moreover, appellant has supplied no information as to why almost half of drug offenders sentenced in the First Judicial District during the specified time period received downward departures, other than the lack of criminal history scores. The circumstances of each case are particularly important because any departure requires the presence of “substantial and compelling” circumstances. Minn. Sent. Guidelines II.D. Moreover, the statistics do not provide a complete picture because the numbers do not reflect durational or upward departures for first-, second-, or third-degree controlled substance crimes.
We acknowledge that appellant sought out and completed treatment while awaiting sentencing. While an offender who seeks treatment for chemical dependency on his or her own volition demonstrates laudable effort, this fact alone does not obligate a reviewing court to reconsider imposition of the presumptive sentence where the district court considered and rejected a dispositional departure. Because this court extends great deference to a district court’s exercise of its discretion, particularly where the sentence imposed is squarely within the presumptive range, we hold that the district court acted within its discretion here by refusing to depart from the sentencing guidelines.