This opinion will be unpublished and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,
Jason Richard Meyer,
Filed January 13, 2004
Kandiyohi County District Court
File No. K801551
Mike Hatch, Attorney General, Timothy C. Rank, Susan E. Damon, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County Attorney, 316 SW Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Laura S. Ferster, Erik T. Nelson, Special Assistant State Public Defenders, Dorsey & Whitney, LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.
G. BARRY ANDERSON, Judge
After police officers found drug paraphernalia in appellant’s pocket during a pat-down search, appellant gave police information that led to the execution of search warrants resulting in the discovery of evidence of a methamphetamine-manufacturing scheme. Before trial appellant moved to suppress all evidence obtained as a result of illegal searches and seizures. The district court ruled that the paraphernalia found in the pat-down search and appellant’s statement about the paraphernalia should be suppressed, but that appellant waived all claims concerning the evidence found in subsequent searches. A jury subsequently convicted appellant of conspiracy to commit first-degree controlled-substance crimes in violation of Minn. Stat. § 152.021, subd. 2(a), and Minn. Stat. § 152.096 subd. 1. On appeal, appellant claims that (1) the district court erred in ruling that he had waived his suppression claims concerning the execution of the search warrants, (2) the pat-down search violated his constitutional right to be free from unreasonable searches and seizures and all evidence obtained in execution of the subsequent search warrants should be suppressed as fruit of the poisonous tree, and (3) if he did waive his claims concerning the search warrants, his trial counsel was ineffective for failing to preserve those claims. Because we conclude that appellant did not waive his claims concerning the search warrants but the record lacks sufficient evidence to rule on the constitutionality of the pat-down search, we remand to the district court for additional fact-finding.
On the afternoon of April 14, 2001, Sergeant Randall Kveene of the Kandiyohi County Sheriff’s Department and Officer Kris Kolstad of the Willmar Police Department followed Keith Ward into the parking lot of the Day’s Inn motel in Willmar while responding to a report that Ward was driving with a revoked license. Jeremy Peterson came out of the motel as the arrest of Ward was underway. Peterson then entered a black pick-up truck with expired license-plate tabs. Kveene informed Peterson that the tabs were expired and asked Peterson to identify himself. Kveene recognized Peterson by name because earlier that day another deputy had asked him if he knew where Peterson lived. Kveene then contacted the deputy and learned that Peterson was suspected of involvement in a methamphetamine-lab operation.
Jason Meyer then came out of the motel and indicated that the pick-up truck belonged to him. Kveene informed Meyer that the tabs were expired and Meyer said he did not intend to drive the truck. Meyer then opened the tailgate to retrieve something, at which point Kveene noticed two bottles of alcoholic beverages in the bed of the truck. Kveene asked Meyer’s age and Meyer stated that he was 18. Kveene began to question Meyer about the alcohol and why he was at the motel. Meyer said that he had inquired into renting a room but had not done so.
Kveene then inquired at the motel’s front desk and learned that Meyer had, in fact, rented a room. Kveene returned to the parking lot and asked Meyer why he had lied about the room. Meyer admitted renting the room but insisted he had rented it for his brother, Justin, and had not been in the room himself. Kveene recognized Justin Meyer by name as the subject of an outstanding arrest warrant. Kveene then patted down Meyer and felt what he believed to be drug paraphernalia in Meyer’s left front pants pocket. Kveene asked Meyer what it was, and Meyer responded, “Something very bad.” Meyer then removed from his pocket a small vial containing a white powder residue that proved to be methamphetamine.
Kveene asked Meyer for permission to search his motel room, but Meyer again said that it was his brother’s room and that he had not been in it. Kveene informed Meyer that he did not intend to arrest him for the paraphernalia he had removed from his pocket and told him that as renter of the room he could grant permission for the search. Meyer consented to the room search, and Kveene obtained a room key from the front desk.
In the room, Kveene found equipment and supplies consistent with the manufacture of methamphetamine. Kveene arrested Meyer and advised him of his Miranda rights. Meyer agreed to speak with police and told them of a plot to manufacture methamphetamine, implicating himself, Justin Meyer, Peterson, and two other accomplices – Robert Swenson and Patrick Haddeland. Acting on information provided by Meyer, the police over the next 24 hours executed search warrants on the motel room, Swenson’s Willmar home, and Haddeland’s motor vehicle. The searches turned up evidence sufficient to support charges of conspiracy to manufacture methamphetamine (Minn. Stat. § 152.021, subds. 2a and 3, and Minn. Stat. § 152.096, subd. 1) against all five co-conspirators and possession charges (Minn. Stat. § 152.025, subds. 1(1) and 3) against three of the co-conspirators, including Meyer.
On April 26, Meyer filed a motion to dismiss the charges for lack of probable cause and to suppress any evidence obtained as a result of searches and confessions. But at the omnibus hearing on June 7, the court did not directly address Meyer’s motions. Meyer did indicate that he wished to challenge probable cause for the arrest and mentioned a discussion before the district court earlier that morning about needing to call Kveene as a witness at the hearing. It is unclear from the record whether Kveene was to testify regarding probable cause, the pat-down search, or some other issue. The state requested time to review Kveene’s report of the incident because it felt Kveene’s testimony might not be necessary if the state were willing to stipulate to the information in his police report. The state apparently agreed to stipulate to the report because Kveene did not testify. But it is unclear whether the state consented to stipulate to the report only as to the probable-cause challenge or as to other issues also.
On June 22, Meyer filed a memorandum articulating his claim that Kveene’s pat-down search violated Meyer’s constitutional right to be free from unreasonable searches and seizures. Meyer argued that because Kveene had no reason to suspect that Meyer was armed, the pat-down search was unconstitutional, and the fruits of the search, including information obtained by subsequent questioning, should be suppressed.
The state responded by letter to the district court, arguing that, because Meyer did not raise the suppression claims prior to the omnibus hearing, they were waived. The state went on to offer to stipulate that it would not introduce the drugs found in the pat-down search or any statement made by Meyer concerning those drugs in its case-in-chief. On July 30, the district court issued an order adopting the state’s proposed stipulation and stating that Meyer had waived any other suppression claims based on the pat-down search. The order included no findings of fact on the pat-down search or any other searches. Meyer never contacted the court or the prosecutor’s office after submitting his post-omnibus memorandum, and he never agreed to the stipulation proposed by the state and included in the district court order, nor did Meyer ever object to the district court’s order.
On June 21, 2002, following a three-day trial, a jury found Meyer guilty of conspiracy to commit a controlled-substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 2(a) (2000), and Minn. Stat. § 152.096 subd. 1 (2000). On September 30, the court sentenced Meyer to 86 months in prison but stayed the execution of that sentence and placed Meyer on probation for 10 years. This appeal follows.
I. Waiver of Suppression Claims
Waiver is “a voluntary relinquishment of a known right.” State v. Tupa, 194 Minn. 488, 494, 260 N.W. 875, 878 (1935). Whether waiver is established is ordinarily a question of fact. Meagher v. Kavli, 251 Minn. 477, 486, 88 N.W.2d 871, 878 (1958). Findings of fact will not be set aside on appeal unless clearly erroneous. Minn. R. Civ. P. 52.01. The district court’s finding on the issue of waiver must be upheld on appeal if there is evidence in the record to sustain it. See Carlson v. Doran, 252 Minn. 449, 456, 90 N.W.2d 323, 328 (1958).
Meyer’s omnibus motion consisted of a standardized motion form listing nine potential issues to be raised, with spaces next to each issue that could be marked with an “X” to indicate that the defendant wished to raise that issue. The fourth issue, which Meyer had marked, indicated that he sought an order:
[s]uppressing any and all evidence against the Defendant obtained as a result of a search, search and seizure, wiretapping or any form of electronic or mechanical eavesdropping, together with any evidence derived therefrom, on the ground that the evidence was obtained in violation of the Defendant’s constitutional and statutory protections against unreasonable searches and seizures and unlawful invasion of privacy.
Meyer filed his motion more than a month before the omnibus hearing. But the district court did not address Meyer’s suppression claims at the omnibus hearing, and Meyer indicated only that he wished to raise a probable-cause challenge and to join in a challenge to the constitutionality of Minn. Stat. § 152.096. Meyer contends that even though the court did not specifically address the suppression claims at the hearing, the motion filed with the court sufficiently addressed the issue to give notice to the district court and the state that he intended to seek suppression of all of the fruits of the illegal pat-down search, including evidence obtained in subsequent searches of the motel room, Swenson’s home, and Haddeland’s car. The state argues that Meyer waived the suppression claims because he failed to specifically give notice of those claims at or prior to the hearing and then tacitly agreed to the state’s proposed stipulation and the district court’s subsequent order stating that he waived the claims.
“A pretrial motion to suppress should specify, with as much particularity as is reasonable under the circumstances, the grounds advanced for suppression in order to give the state as much advance notice as possible as to the contentions it must be prepared to meet at the hearing.” State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992) (citing 1 W. LaFave and J. Israel, Criminal Procedure § 10.1(b) (1984)). “In practice, the defense counsel at the outset of an omnibus hearing often makes a rather general statement of the issues.” Id. A detailed defense omnibus motion is not required in all circumstances. State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994).
The state claims that the written motion was not specific enough to put it on notice of Meyer’s suppression claims and that it was prejudiced by the lack of notice of the claims. We disagree. This court has found notice less specific than Meyer’s motion in this case to be sufficient. In Balduc, we found notice to be sufficient when defense counsel failed to file a formal defense motion before the omnibus hearing. 514 N.W.2d at 609-10. Instead, counsel merely wrote a letter to the prosecutor giving notice that all “usual” omnibus hearing issues would be contested and requesting that certain police officers be available to testify at the hearing. Id. at 609. In the present case, Meyer’s omnibus motion advised that he wished to challenge all evidence obtained by searches and seizures on the ground that the evidence was obtained in violation of his constitutional or statutory rights. Most of the evidence used to convict Meyer was obtained through the execution of search warrants subsequent to the pat-down search in the motel parking lot. Imprecise as it was, the motion was sufficient to give notice to the state that Meyer wished to challenge the admission of the evidence obtained in those searches.
Additionally, the record does not support the district court’s conclusion that Meyer waived all suppression claims other than his claim for the suppression of the drugs found in the pat-down search and his comments concerning those drugs. In the letter to the district court, the state offered to “stipulate that it will not introduce in its case-in-chief either the methamphetamine found during the pat-down search of defendant or any statement regarding the methamphetamine found during the pat-down.” The state’s proposed stipulation did not include a provision that Meyer would waive all additional suppression claims based on the pat-down search. The record suggests that Meyer never discussed the proposed stipulation with either the state or the district court. But even if we are to surmise from Meyer’s silence that he tacitly agreed to the proposed stipulation, there is nothing in the record to indicate that he also agreed to waive all additional suppression claims as the district court’s order requires. Therefore, the record does not support the portion of the order stating that Meyer waived those additional claims, and, accordingly, Meyer cannot be said to have waived those claims based on his failure to oppose the proposed stipulation and order.
II. Constitutionality of Pat-down Search.
An officer may conduct a pat-down search of a lawfully stopped person if the officer can point to “an articulable factual basis for belief that the person stopped may be armed and dangerous.” Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988). Meyer contends that Sergeant Kveene’s pat-down search was unlawful because Kveene had no reason to suspect that Meyer was armed or posed any danger to him. The state makes no argument as to the lawfulness of the pat-down search. Moreover, Meyer’s challenge of the pat-down search was not addressed in the district court.
When the district court has made no findings of fact on an issue, an appellate court is in no position to review that issue. State v. Wicklund, 295 Minn. 402, 402, 201 N.W.2d 147, 147 (1972). Because the merits of Meyer’s Fourth Amendment arguments were not addressed in the district court, we decline to determine the propriety of Kveene’s pat-down search of Meyer. We remand this case to the district court with instructions to reopen the omnibus hearing and take such additional testimony as is necessary to reach a conclusion concerning the propriety of Sergeant Kveene’s pat-down search of Meyer and to make a reasoned decision concerning the validity of Meyer’s suppression claims, including his fruit-of-the-poisonous-tree claim. The district court must consider what effect, if any, its decision has on the jury verdict and to then vacate or affirm the conviction as it finds appropriate.
III. Ineffectiveness of counsel
Because we conclude that Meyer’s counsel in the district court properly preserved Meyer’s suppression claims, we need not address appellant’s ineffectiveness-of-counsel claims.