may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Hennepin County District Court
File No. 97107030
John M. Stuart, State Public Defender, Rochelle R. Winn, 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
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, 300 South Sixth Street, C-2000 Hennepin County Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying a postconviction petition challenging a conviction of first-degree controlled-substance crime, appellant Anthony Orneary Doss argues that: (1) the cocaine found in the search of his car should have been suppressed because the search was not incident to arrest where he had parked and walked away from his car before he was questioned and arrested on an outstanding warrant; (2) because the officer searched the car looking for drugs, the search was merely pretextual and not a proper inventory search; and (3) statistical evidence that the officers who stopped him disproportionately singled out blacks for traffic stops proved that he was the target of discriminatory enforcement in violation of equal protection. We affirm.
Minneapolis Police Officers Richard Gearhart and David Robinson are part of a community-response team that responds to citizen complaints, patrols high-crime areas, and enforces a zero-tolerance policy. Robinson testified that under the zero-tolerance policy, officers “stop anybody and everybody for any violation and take maximum law enforcement.”
While on patrol at about 5:30 p.m. on November 25, 1997, Gearhart and Robinson saw a light-colored car about one block away that was approaching a stop sign at an intersection. The officers testified that the car slowed down but failed to come to a complete stop at the stop sign. The officers followed the car until the driver, later identified as Doss, pulled over to the curb and parked. As Doss got out of the car and began to walk away, Gearhart pulled the squad car behind Doss’s car and activated the squad car’s red lights. Gearhart left the squad car and approached Doss and requested his driver’s license. Doss said he did not have a driver’s license and asked why the officers stopped him. Gearhart said that Doss was stopped for rolling through a stop sign.
The officers pat-searched Doss and placed him in the squad car’s back seat. A routine driver’s license and warrants check showed that Doss’s driver’s license had been cancelled and that Hennepin County had a misdemeanor arrest warrant out for Doss for driving after cancellation. Robinson testified that the officers placed Doss under arrest, and then Gearhart conducted an inventory search of Doss’s car incident to the arrest.
Gearhart testified that after finding no weapons or other contraband under the seats or in the glove compartment, he used a flashlight to look in the car’s vents. He searches the vents of most vehicles, but especially Monte Carlos, because their dashboards can be modified to easily “pop off.” During the last couple of years, he had made several arrests based on the discovery of weapons and controlled substances in the vents of Monte Carlos.
Gearhart could not recall if the vents were open and admitted that he probably would have opened them if they had been closed. When Gearhart shined his flashlight into a heater vent, he saw that it was blocked by a piece of red cloth and knew that the cloth was not something that belonged in the vent. Gearhart testified that after seeing the cloth,
I put my finger in the vent and then I pulled out a little bit and, if I do that on some Monte Carlos, when I just do a regular search, if it doesn’t come off, I don’t go any farther because I assume they’re not * * * I don’t want to break a dash. But in this particular instance it almost fell off with my finger in it, so I knew that it * * * had been removed several times and probably even made so you could – so somebody could easily remove it.
The cloth was a sock, inside of which Gearhart felt two golf-ball-sized objects. He opened the sock and found two balls of powder cocaine.
Doss was arrested and charged with first-degree controlled-substance crime. Doss filed a pretrial motion to (1) dismiss the complaint against him on the basis that the officers stopped him because of his race, thereby violating his constitutional right to equal protection of the laws; or (2) suppress the cocaine, arguing that the search of his car was illegal.
In support of his discriminatory-enforcement claim, at the Rasmussen hearing, Doss presented a statistical analysis by Frank Martin, Ph.D., a professor at the University of Minnesota and Director of the Statistical Consulting Center. In conducting his statistical analysis, Martin used (1) census data showing that blacks comprised 12.9% of the Minneapolis population and 36.98% and 32.7% of the population in the two census tracts surrounding the place where Doss was stopped; (2) a survey of the racial composition of drivers at the intersection of Aldrich Avenue North and Broadway showing that 42% of drivers who committed minor traffic or equipment violations were black; and (3) a summary of stops and arrests by Robinson and Gearhart, which showed that 94.4% of the drivers that they stopped for traffic or equipment violations were black.
Based on that data, Martin concluded that blacks comprised 36% of the population in the two census tracts surrounding the location where Doss was stopped and created a statistical race-blind model. Martin explained that using the race-blind model, one would expect the race of drivers stopped to reflect the racial composition of the neighborhood where the stop occurred. For purposes of analysis, Martin assumed that 50% of drivers in the area where Doss was stopped were black and concluded that Robinson’s and Gearhart’s record of stopping 94.4% blacks was a statistically significant disparity from the expected outcome. Based on the absence of evidence that blacks committed more traffic or equipment violations or were more arrestable than other drivers, Martin concluded that Gearhart and Robinson were much more likely to stop vehicles driven by blacks.
Daniel G. Brick, a statistics professor at the University of St. Thomas, questioned the validity of Martin’s data and conclusions. Brick noted that the racial composition of drivers at the major intersection of Aldrich and Broadway was more likely to reflect the racial composition of the entire Twin City area than that of the neighborhood side streets. Brick opined that factors other than racial bias, such as outstanding warrant or illegal contraband, could account for a statistically disproportionate number of blacks being arrested following a traffic stop.
Robinson testified that before stopping Doss’s car, he was not able to see inside of it and could not tell anything about its occupants. Gearhart’s testimony indicates that the decision to stop Doss was made when the officers saw his car roll through the stop sign, and he testified that he did not know Doss’s race until Doss got out of his car.
The district court denied Doss’s motion on the basis that the search of Doss’s car was valid under the search-incident-to-arrest and inventory exceptions to the warrant requirement, and that the stop did not violate Doss’s equal-protection rights. More than three years after his conviction, Doss filed a petition for postconviction relief, raising the same issues raised in his pretrial motion. This appeal is from the July 2002 order summarily denying Doss’s postconviction petition.
A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case. On appeal, the decision of the postconviction court is reviewed under an abuse of discretion standard, and the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court’s findings.
State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (citations omitted).
When reviewing the legality of a seizure or search, an appellate court will not reverse the trial court’s findings unless clearly erroneous or contrary to law.
In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citations omitted). The determination of whether a search is constitutional is a question of law subject to de novo review. State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
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 incident to a lawful arrest. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). The justification for the search-incident-to-arrest exception is twofold, ensuring “officer safety by allowing officers to remove any weapons the arrestee might reach” and preventing “the arrestee from tampering with or destroying evidence or contraband.” Id. (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969)).
In New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981), the Court established a bright line rule for determining the constitutionality of a search incident to arrest. Under Belton,if a police officer has probable cause to arrest a driver of a vehicle, the officer may search the driver and the vehicle, including any containers within the passenger compartment, without a warrant. State v. Liljedahl, 327 N.W.2d 27, 30 (Minn. 1982). Under Belton, police are not required
to make a particularized showing of need to conduct the search in order to find weapons or evidence. * * * [U]nder Belton, an incidental search of the car is allowed even after the defendant is placed in the squad car.
State v. White, 489 N.W.2d 792, 795-96 (Minn. 1992).
Doss does not challenge the district court’s finding that police had probable cause to arrest him. Rather, relying on Robb, Doss argues that he was not an occupant of his car. In Robb,
deputies on routine patrol at the Linwood Lake landing noticed a boat trailer with expired license tabs that did not belong to the trailer. The deputies were inspecting the trailer when a friend of Robb’s drove up in Robb’s Ford Bronco. Robb’s friend told the deputies that the trailer belonged to Robb, who was in a boat on Linwood Lake. * * * The deputies also learned that there was a “body only” warrant for Robb’s arrest because he had failed to appear in court on a minor traffic offense.
Robb’s friend walked with the deputies to the lakeshore and called Robb to come to shore.
Robb, 605 N.W.2d at 98-99.
The supreme court held that because Robb was not an occupant of his Bronco, a search of the Bronco was not permissible under Belton. The court explained:
While the Court did not define the term “occupant” in Belton, Belton’s rationale does not apply where, as here, the arrestee, when approached by the arresting officer, was so far removed from the vehicle, both in distance and in time, that he did not have the opportunity to conceal weapons, contraband, or evidence therein. To apply Belton in such a circumstance would sever Belton from its foundation in Chimel: that at the time the person was arrested, the area to be searched was under his or her immediate control. The mere presence of the vehicle in the vicinity of the arrest is insufficient to support a search. Belton does not permit searches of arrestees’ vehicles; it permits searches of occupants’ vehicles incident to lawful arrest.
Id. at 101 (citations omitted).
In this case, unlike in Robb, Doss was in his car when he committed the traffic violation that resulted in police stopping his car. Doss testified that after he went through the stop sign and saw the squad car turn left and come toward his car, he knew that police were going to stop him. Thus, immediately before his arrest, his car was under his immediate control and he had the opportunity to conceal weapons, contraband, or evidence. See Belton, 453 U.S. at 460, 101 S. Ct. at 2864 (explaining that its holding was intended to establish a workable definition of the area that may be searched under Chimel when the area within the immediate control of an arrestee arguably includes the interior of an automobile and the arrestee is a recent occupant of the automobile). Also, accepting Doss’s position would give drivers the opportunity to avoid a Belton search by getting out of their vehicles before police completed a stop and could result in the type of case-by-case analysis of whether a driver was an occupant that the Belton bright-line rule was designed to avoid. See State v. Robb, 590 N.W.2d 813, 815-16 (Minn. App. 1999) (noting that Robb was neither driving nor a passenger in his Bronco just before his arrest and that accepting state’s position that Robb was an occupant of his Bronco would require “a new case-by-case process of determining whether a person who was not actually in an automobile before being arrested was, nevertheless, an occupant of the automobile for purposes of applying the rule in Belton”), aff’d 605 N.W.2d 96 (Minn. 2000). We conclude that it was constitutionally permissible for the officers to search Doss’s car incident to his arrest.
A second exception to the Fourth Amendment’s warrant requirement is an inventory search of an impounded vehicle. City of St. Paul v. Myles, 298 Minn. 298, 304-05, 218 N.W.2d 697, 701 (1974). Inventory searches do not require probable cause. State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997). Immediate on-the-scene inventories prior to a car’s impoundment have been justified as necessary to protect the owner’s property, to insure against claims of loss, and to guard the police from potential danger. Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987).
The validity of an inventory search depends on whether it was conducted in accordance with standard police procedures and primarily to inventory, rather than to investigate, the contents of the vehicle. Holmes, 569 N.W.2d at 188. Inventory procedures must be administered in good faith. Bertine, 479 U.S. at 372, 107 S. Ct. at 741. But an inventory search is not unlawful merely because police may also have an investigatory motive. Holmes, 569 N.W.2d at 187.
Here, because the record indicates that the search was conducted according to Minneapolis Police Department procedures for inventory searches, the first prong of the test for a valid inventory search is satisfied. Regarding the purpose of the search, Robinson completed a property-inventory sheet, and Doss’s car was actually impounded. The property-inventory sheet did not list personal effects, but Robinson testified that that was because the car contained no significant personal property. We conclude that the officers conducted a proper inventory search of Doss’s car. See Holmes, 569 N.W.2d at 188-89 (considering whether inventory search was pretextual).
Doss argues that by dismantling his car’s vent, Gearhart exceeded the scope of a valid search incident to arrest and of a valid inventory search. See 3 W. LaFave, Search and Seizure, § 7.1(c), at 451-52 (3d ed. 1996) (Belton bright-line rule does not necessarily extend to places that can be reached only by unlocking, breaking, or dismantling); Holmes, 569 N.W.2d at 188 (in conducting inventory search, police may not act in bad faith or for the sole purpose of investigation).
But if an officer gains probable cause to search for a controlled substance during a legal search, the scope of the search can be expanded to include places where there is probable cause to believe the controlled substance will be found. See State v. Veigel, 304 N.W.2d 900, 901-02 (Minn. 1981) (when officers discovered marijuana in vehicle’s passenger area while conducting lawful search for alcohol, probable cause to search locked glove compartment for alcohol was not necessary because there was probable cause to search for controlled substances). See also State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000) (an officer may make a warrantless search of an automobile when there is probable cause to believe the vehicle contains contraband). Probable cause means a reasonable belief based on the totality of the circumstances considered in light of the officer’s experience and observations. State v. Nace, 404 N.W.2d 357, 360 (Minn. App. 1987), review denied (Minn. June 25, 1987).
The evidence supports the district court’s finding that Gearhart saw the red sock in the air vent before he dismantled anything. Also, when Gearhart put his finger in the vent and pulled slightly, it almost fell off. As a result, Gearhart knew that the vent had been removed several times previously. Gearhart’s observation of the sock in the air vent and the fact that it almost fell off when he put his finger into it and pulled slightly, in light of his training and experience, gave him probable cause to search the air vent.
The equal protection clause of the fourteenth amendment prohibits the intentional, discriminatory enforcement of [laws]. Criminal prosecutions, however, are presumed to have been undertaken in good faith and in a nondiscriminatory manner. In proving discriminatory enforcement, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right. The defendant must prove discriminatory enforcement by a clear preponderance of the evidence.
State v. Hyland, 431 N.W.2d 868, 872-73 (Minn. App. 1988) (citations and quotation omitted).
Gearhart and Robinson are part of a community-response team that responds to citizen complaints, patrols high-crime areas, and enforces a zero-tolerance policy. Robinson testified that under the zero-tolerance policy, officers “stop anybody and everybody for any violation and take maximum law enforcement.” Although Doss denied rolling through the stop sign, the district court specifically found credible the officers’ testimony that Doss had done so. Both officers testified that they decided to stop Doss’s car because of the traffic violation and that they did not know Doss’s race before the stop. The state presented evidence contradicting the statistical evidence presented by Doss. The evidence supports the district court’s finding that Doss was not stopped because of his race.
Doss raised the same issues in his postconviction petition that he raised in his pretrial motion. The district court did not err in summarily dismissing his postconviction petition.