This opinion will be unpublished and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,
Christopher Nicholas Cleveland,
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. 02048125
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Brian M. Marsden, 1600 University Avenue, Suite 406, St. Paul, MN 55104-3825 (for appellant)
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*
GORDON W. SHUMAKER, Judge
On appeal from his conviction of two counts of fifth-degree controlled-substance offenses, appellant Christopher Nicholas Cleveland argues that the district court erred in admitting evidence obtained in violation of his constitutional rights because the search warrant was executed in violation of Fay and his statement was coerced in violation of Miranda. Cleveland also argues that the prosecution improperly withheld witness identities until the day of the Rasmussen hearing in violation of Brady. Because the district court did not err, we affirm.
On January 9, 2002, the Minneapolis Police Emergency Response Team executed a “no-knock” search warrant that covered appellant Christopher Nicholas Cleveland’s apartment, vehicle, and person. Cleveland and another man were present in the apartment at the time of the warrant execution. Both men were handcuffed with “flex” cuffs, had pillow cases placed over their heads to conceal the identity of undercover agents, and were made to lie face down on the floor.
Officer Kevin Angerhofer took Cleveland to the bathroom to interview him because “[t]here was another person inside the residence [and he] wanted to go someplace that was secure yet private in case Mr. Cleveland wanted to say something in front of [him] that he didn’t want to say in front of the other person, and one of the other officers was still searching the one-bedroom apartment. Angerhofer testified that he took Cleveland to the bathroom after the officers had already found marijuana, firearms, and materials used in production of methamphetamine.
Officer Angerhofer also testified that once in the bathroom, he removed the pillowcase, and read Cleveland his rights. Angerhofer testified that he never had a physical altercation with Cleveland, never struck Cleveland and did not see any other officer have a physical altercation with or strike Cleveland.
Cleveland’s testimony as to what occurred during the bathroom interview conflicts with Angerhofer’s testimony. Cleveland testified that when they were in the bathroom, Officer Angerhofer was violent, grabbed him by the throat, slammed him against the wall, and demanded to know where the guns and drugs were hidden. Cleveland also testified that he remained silent until Officer Angerhofer placed his knee into Cleveland’s back and began pulling on his nostrils. Cleveland stated that because the pain was so great he “told [Angerhofer] where three handguns were located, the marijuana and [he] believe[d] it was two scales.”
Ultimately, Cleveland was arrested and transported to jail, and a copy of the search warrant and inventory of items seized was left at the apartment. The state did not disclose to Cleveland until the Rasmussen hearing the names of two young boys who came to the apartment during the search. After his suppression motion was denied, Cleveland waived his right to a jury trial, submitted the case to the district court on stipulated facts, and was found guilty. This appeal follows.
As a threshold issue, appellant Christopher Cleveland argues that the record supports his version of the facts, which differs from the district court’s findings, and that the district court’s findings of fact regarding credibility are clearly erroneous. Findings of fact are subject to a clearly erroneous standard of review. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998). Even if the record contains testimony that, if believed, would support different findings of fact, when the record contains evidence to support the findings made and those findings support the district court’s conclusions, we may not reverse just because we might have found the facts differently in the first instance. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779-80 (Minn. 1989). Appellate courts defer to district court credibility determinations. State v. Reiners, 664 N.W.2d 826, 836 (Minn. 2003)
Here, there is conflicting testimony as to the events that occurred when the search warrant was executed, but we defer to the district court on credibility issues, and the record supports the findings of fact. Thus, the findings of fact are not clearly erroneous and will not be reversed.
1. Fay Violation
Cleveland argues that the execution of the search warrant was conducted in an oppressive, intimidating, and abusive manner and, therefore, the district court erred in failing to suppress evidence obtained during the search. Cleveland does not challenge the validity of the warrant; rather he challenges the execution of the warrant, arguing that the district court incorrectly applied the law of Fay and thus determined erroneously that the evidence was admissible. See State v. Fay, 488 N.W.2d 322, 324 (Minn. App. 1992) (holding that a search conducted in an unreasonable and unjustifiable fashion is not lawful).
“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The United States and Minnesota constitutions prohibit unreasonable government searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A search warrant may be issued upon a finding of probable cause. Minn. Stat. § 626.08 (2000). Whether the execution of a search warrant was reasonable depends on the totality of the circumstances. Fay, 488 N.W.2d at 324.
In Fay, this court held that the conduct of smashing down the door with a battering ram by more than five officers who had drawn their guns, and handcuffing, blindfolding, and questioning the defendant without benefit of a Miranda warning was a “clearly unreasonable and unjustifiable interference with [the defendant’s] fourth and fifth amendment rights, and that “the officers’ violent and unannounced entry and refusal to produce a search warrant at any time during the search or thereafter, evinced a deliberate disregard of [the defendant’s] constitutional rights.” Id.
That is not the case here. Here, (1) the no-knock warrant is unchallenged; (2) there is no dispute as to whether the officers announced before entering that they were police officers; (3) weapons and dangerous chemicals that were a threat to officer safety were present; (4) the officers produced and left a copy of the search warrant; and (5) Officer Angerhofer read Cleveland his Miranda rights. There was no conduct comparable to what occurred in Fay.
Cleveland also argues that the district court failed to make a threshold determination regarding the taint of illegality on the proffered evidence but instead limited its inquiry to the fact that the evidence was arguably in plain view. Because there was a valid search warrant, the plain-view exception to the warrant requirement does not apply. See State v. Smith, 386 N.W.2d 403, 404 (Minn. App. 1986) (holding police may seize objects without a warrant and the objects will be admissible if the initial intrusion was lawful, the discovery of the evidence was inadvertent, and the incriminating nature of the evidence was immediately apparent), review denied (Minn. July 16, 1986).
Because the validity of the warrant is unquestioned and the execution of the warrant was not unreasonable, the district court did not err in admitting evidence obtained as a result of the search warrant.
2. Miranda Violation
Cleveland argues that his statement and all evidence obtained as a result of his statement should be suppressed because it was obtained through coercion after he requested an attorney. “The voluntariness of a statement or confession depends on the totality of the circumstances.” State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999). “A statement is involuntary if police actions were so coercive, manipulative, and overpowering as to deprive a suspect of his ability to make an unconstrained and wholly autonomous decision to speak as he did.” Id. (quotations omitted) The burden is on the state to establish voluntariness by at least a preponderance of the evidence. State v. Maletich, 384 N.W.2d 586, 587 (Minn. App. 1986).
The record shows that (1) it was reasonable to handcuff and blindfold Cleveland as an incident to the execution of a no-knock warrant; (2) evidence allegedly revealed by Cleveland’s statement was found prior to his making of the statements; (3) Cleveland was read his Miranda rights, and when he asked for an attorney, all questioning ceased; (4) Cleveland’s “statement” was admitted into evidence through his testimony; and (5) the evidence was in plain view when the officers executed the warrant, and the only thing that was not in plain view was discovered as a result of the lawful search. Cleveland’s argument that his statement and any evidence found as a result of his statement should be suppressed is without merit.
Even if Cleveland did make such a statement during the search, the search warrant already authorized the police to seize the evidence discovered. See State v. Richards, 552 N.W.2d 197, 203-04 n.2 (Minn. 1996) (holding that the independent-source doctrine permits the admission of evidence obtained during an unlawful search if the police could have retrieved the evidence “on the basis of information obtained independent of their illegal activity”).
3. Brady Violation
Cleveland argues that the state failed to timely disclose the identity of material witnesses, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). This issue was not raised at the district court, and thus Cleveland has waived his right to raise the issue now. Minn. R. Civ. App. P. 103.04; see Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding “matters not argued and considered in the court below will not be considered here”). Even constitutional issues are generally waived by failure to present them to the district court. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
RANDALL, Judge (concurring specially)
I concur in the result the majority reaches in this case.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.