This opinion will be unpublished and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,
Filed February 24, 2004
Dissenting, Minge, Judge
Nobles County District Court
File No. K6-02-324
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gordon L. Moore III, Nobles County Attorney, Kathleen A. Kusz, Assistant County Attorney, 1530 Airport Road, P.O. Box 337, Worthington, MN 56187 (for respondent)
John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
The district court denied Enrique Magallon’s suppression motion and, on stipulated facts, found him guilty of first-degree controlled-substance crime. On appeal Magallon challenges the constitutionality of a car search which produced 218 grams of methamphetamine. Concluding that the state trooper had a reasonable, articulable basis for expanding the scope of the initial traffic stop and that the district court did not err in finding the search consensual, we affirm.
F A C T S
The Nobles County Attorney charged Enrique Magallon with first-degree controlled-substance crime for possession of more than twenty-five grams of methamphetamine. The methamphetamine was discovered in the search of Magallon’s car after he was stopped for speeding on a rural highway near Worthington at 12:50 a.m.
Magallon moved to suppress the methamphetamine as the product of an unlawful search. He did not dispute the reasonable, articulable basis for the initial stop but challenged the constitutional validity of the trooper’s expanding the scope of the stop to include investigation of other suspected illegal activity and denied that he had consented to a search of the car.
At the suppression hearing, the state trooper who stopped Magallon testified to the events preceding the search. He stated that as he approached the driver’s side of the car, Magallon rolled down the window, and the trooper “was hit by just a blast of strong perfume-like odor, very, I guess I would almost call it obnoxious.” As the trooper shined his flashlight inside the car, he noticed an air freshener suspended over the passenger-side defrost vent and one over the driver-side defrost vent.
The trooper testified that the placement and number of the air fresheners raised his suspicions because he had learned in drug intradiction courses that people who transport drugs often mask the smell of drugs with strong odors such as air fresheners to defeat a dog’s ability to detect drugs. The trooper testified that he had taken two postcertification drug intradiction classes, attended four weeks of dog drug detection, and worked for one year with a dog trained to sniff for drugs.
In response to the trooper’s request for a driver’s license, Magallon produced a temporary permit. The trooper then asked Magallon to come back to the patrol car while the trooper ran a check on Magallon’s license. Magallon’s temporary permit listed a Minneapolis address. While waiting for the information on Magallon’s driving status, the trooper asked Magallon where he was headed. Magallon stated he was going to Fulda to visit a friend. When the trooper inquired about the friend’s name, Magallon “either couldn’t or wouldn’t tell.” When the trooper asked where in Fulda his friend lived, Magallon “either couldn’t or wouldn’t tell.” The trooper asked if the vehicle belonged to Magallon, and he stated it belonged to a friend. When asked the name of the friend, Magallon did not provide a name.
The trooper’s initial suspicions increased because Magallon’s answers were evasive and because he knew it was a practice of drug transporters to use someone else’s car to avoid the risk of vehicle forfeiture. The trooper asked Magallon if he had any controlled substances, firearms, or open containers of alcohol in the car. The trooper stated that “[Magallon] said no and he laughed and he told me to go look if I liked.”
Magallon’s license check showed that his license was suspended. The trooper issued him a warning for speeding and a citation for driving after suspension. The trooper gave Magallon the written warning, the citation, his temporary license, his passenger’s license, and told him he could “take off” but his passenger would have to drive because Magallon’s license was suspended. The trooper then asked Magallon if he would object to a search inside the car for firearms, drugs, or alcohol. The trooper testified that Magallon said he would not object “and, again, with kind of a laugh he stated [the trooper] could look.” Before beginning the search the trooper called the Worthington police to alert them that he might need canine assistance.
As he looked through the car, the trooper saw two more air fresheners suspended from the emergency brake. Two cell phones and a screwdriver were on the front seat. The trooper also noticed that the heads of the screws in the door panel had been shined by contact with a screwdriver, suggesting that the door panels had recently been removed. Under the dashboard he found a wired-in switch that served no apparent purpose. He noted that the passenger airbag had been removed and the driver’s airbag was loose. In the trunk the trooper found Downy fabric softener and a tool kit.
Based on his training and experience, the trooper knew that people who transport drugs often hide the drugs inside door panels, place drugs in hidden compartments tripped by electrical switches, and believe that Downy fabric softener masks drug odors from canine detection.
The trooper called the Worthington police again and asked for canine assistance. Within five minutes an officer arrived with a dog. The dog gave a positive response for the presence of drugs at the front of the car around the license plate area. The trooper searched the engine area and found a screwdriver by the air filter. When he opened the air filter, he found two green and two blue cellophane-wrapped packages. The packages field-tested positive for methamphetamine. Additional testing confirmed that the packages contained 218 grams of a substance that tested positive for methamphetamine.
The trooper testified that he thought that the communication between him and Magallon was good. Although Magallon spoke with a Spanish or Hispanic accent, the trooper didn’t perceive any communication barrier. The trooper said that Magallon spoke in English, Magallon’s answers were responsive, Magallon didn’t indicate that he did not understand, and Magallon did not ask to have anything repeated or explained.
Magallon and his passenger were arrested and questioned by an investigator from the Worthington Police Department. The recorded tape of Magallon’s questioning was admitted as a trial exhibit. On the tape, Magallon answered a series of preliminary questions in English. When the investigator asked if Magallon wanted an interpreter, he stated that he did, and one was provided. Through an interpreter Magallon waived his rights and talked to the investigator. He said that he picked up the drugs from someone on the street who he did not know and placed them in the air filter of the car. He said that he was to be paid $1,000 for dropping the drugs off in Fulda at the stop sign on the first exit from Highway 62.
Magallon testified at the suppression hearing through an interpreter. He stated that he had come to the United States two years ago from Mexico, that he had graduated from a school equivalent to a junior high school, that he had only limited knowledge of English and could understand very little. Magallon said that he did not understand everything the trooper asked him. He testified that he did not consent to the search of his car. He acknowledged, however, that he understood that the trooper said he was receiving a warning instead of a ticket; that he could not drive; and that because Magallon’s license was suspended, his friend would have to drive.
The district court denied Magallon’s suppression motion. In detailed findings, the district court concluded that the trooper had a particularized and objective basis for suspecting that the car contained narcotics and thus the continued detention of Magallon was not a violation of his constitutional rights. The court also found that the state proved that Magallon consented to the search and the consent was valid. The court specifically found that Magallon was not “handicapped in communication so as to preclude consent” to a search of the car. Magallon appeals both determinations.
D E C I S I O N
This appeal presents two interrelated issues: whether the trooper’s inquiry about drugs impermissibly expanded the scope of the traffic stop and whether the district court’s finding that Magallon consented to the car search is clearly erroneous.
Detention of a person during an automobile stop, even for a brief period, constitutes a seizure protected by the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996). Expansion of the scope of the stop to include investigation of other suspected illegal activity is permissible under the Fourth Amendment only if the officer has reasonable, articulable suspicion of that activity. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1878-79 (1968). The Minnesota Supreme Court has similarly construed Article I, Section 10 of the Minnesota Constitution to limit the scope of a Terry stop to an investigation of the suspected offense that prompted the stop, the limited search for weapons, and the “investigation of only those additional offenses for which the officer develops a reasonable, articulable suspicion within the time necessary to resolve the originally-suspected offense.” State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).
An officer investigating a speeding violation may be justified in asking the driver to get out of the car, see Ohio v. Robinette, 519 U.S. 33, 38-39, 117 S. Ct. 417, 420-21 (1996); asking for a driver’s license and proof of insurance, see Delaware v. Prouse, 440 U.S. 648, 658-59, 99 S. Ct. 1391, 1398-99 (1979); asking to examine the vehicle identification number, see New York v. Class, 475 U.S. 106, 116, 106 S. Ct. 960, 967 (1986); and asking about the intended destination of the driver and about the reason for speeding, see United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc).
If the detainee’s responses or other circumstances give rise to a reasonable, articulable suspicion of additional criminal activity within the time necessary to resolve the original purpose of the stop, an officer may broaden his inquiries and satisfy those suspicions. Wiegand, 645 N.W.2d at 136. Reasonable suspicion requires that the officer “be able to articulate something more than an ‘inchoate and unparticularized suspicion or hunch.’” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883).
The trooper’s suspicions were initially raised by the unusually strong smell of air freshener when Magallon rolled down his window. He observed two air fresheners, one over the driver’s air vent and one over the passenger’s air vent. In addition to the markedly strong smell, the trooper thought the number and placement of the air fresheners was unusual. While in the squad car with Magallon waiting for the return of information on Magallon’s license status, the trooper asked permissible questions relating to the traffic stop about Magallon’s destination and ownership of the vehicle. Magallon’s answers were evasive and he was unable to account for the car’s ownership. He was driving from Minneapolis to a small, rural town at 12:50 a.m. on a weekday night. He said he was going to visit a friend but provided no information to confirm his destination. The trooper’s progressive inquiry did not dispel his suspicions. The trooper’s fifteen years of experience and individualized knowledge provided a context for his observations.
Viewing the totality of the circumstances, we conclude that the trooper had a reasonable, articulable suspicion of criminal activity—that Magallon had illegal drugs in the car—and that the trooper’s inquiry of whether he could look into the car was reasonably related to that suspicion.
We now turn to Magallon’s claim that the district court erred in finding that the search of his car was consensual or voluntary. The state has the burden to prove that defendant’s consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, S. Ct. 1788, 1792 (1968). The voluntary nature of consent is a question of fact to be determined from a totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S. Ct. 2041, 2047 (1973). “Mere acquiescence on a claim of police authority or submission in the face of a show of force is . . . not enough.” State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). But involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). A district court’s finding of consent will only be reversed if it is clearly erroneous. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).
Magallon argues that his lack of advanced education, the period of time he resided in this country, and his limited ability to understand or speak English made the consent involuntary. The district court carefully evaluated the evidence in determining that Magallon could understand the trooper’s request to search and that the consent was voluntary.
The court observed that Magallon had the language facility initially to take issue with the trooper’s assessment of his speed, that he understood why he was stopped and what the trooper was claiming. The court noted that when questioned at the Law Enforcement Center Magallon understood the series of preliminary questions and, even after an interpreter had been summoned, Magallon evinced an understanding of the investigator’s questions by beginning his answers in English before the interpreter repeated the investigator’s questions in Spanish. The court relied on this evidence and the testimony of the witnesses at the suppression hearing and found that “[Magallon] was not handicapped in communication and that he did, in fact, consent to the trooper’s search of the vehicle.”
These findings are supported by the evidence. The transcript of Magallon’s initial questioning in English shows that he responded by providing complete identification data, information about his telephone service and living circumstances, information on where he worked and his working status. He explained the reason for the traffic stop and that he received a warning, rather than a ticket for speeding. He explained that the car had been searched and drugs had been found. He said he understood from the trooper that he was suspended and could not drive. He told the investigating officer “the police says to me, I can check it out, in the car.” When the investigator inquired, “He asked you if he could look?” Magallon responded, “Yeah.” To the extent the trooper’s testimony conflicted with Magallon’s statements, we defer to the district court’s determinations on credibility. The district court is in the best position to evaluate credibility of witnesses. State v. Lopez, 379 N.W.2d 633, 638 (Minn. App. 1986), review denied (Minn. Feb. 14. 1986). We see no clear error in the district court’s findings and conclude that, based on those findings, the search was consensual.
MINGE, Judge (dissenting)
I respectfully dissent with respect to the expansion of the stop to include the search.
The right to be free from intrusive searches and seizures is a core personal freedom secured by the Fourth Amendment to the United States Constitution and by Article I, Section 10 of the Minnesota Constitution. See State v. Fort, 660 N.W.2d 415 (Minn. 2003).
In this case, the chain of events that led to the discovery of methamphetamine began with a garden-variety speeding stop at midnight on a rural highway. Suspicion of drugs was sparked by the presence of two air fresheners and an unfolded Minnesota highway map. The driver was a Hispanic from the metro area who had a poor command of the English language. His answers to questions about his destination and who he was to meet were vague. However, to parlay these plus his driving a borrowed car into constituting a reasonably articulable suspicion erodes the Minnesota and U.S. Constitutional limits on searches and confines recent caselaw. See State v. Fort, 660 N.W.2d at 418-19; State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003). Consent is an issue in this case. Language barriers are important in assessing the voluntariness of the consent. State v. Camacho, 561 N.W.2d 160, 168 (Minn. 1997); State v. Marin, 541 N.W.2d 370, 373-74 (Minn. App. 1996), review denied (Minn. Feb. 27, 1996). Although it ultimately concluded that appellant “was not handicapped in communication” and did consent to the search, the district court in this case also stated that it was “most difficult to know whether the [appellant] understood . . . the Trooper’s request to search the vehicle.” In light of appellant’s limited English proficiency, the lack of any indication he could refuse, the authority and presence of the law enforcement officer, the location of the stop, the time of night, the uncertainty whether the request to search was understood, and the uncertainty whether consent was given; the circumstances in this case are not adequate to expand the stop. See State v. Fort, 660 N.W.2d at 419 (holding evidence must be suppressed where “investigative questioning, consent inquiry, and subsequent search went beyond the scope of the traffic stop and was unsupported by any reasonably articulable suspension.”); State v. Syhavong, 661 N.W.2d at 282 (striking consent to search given after original purpose of stop has been accomplished in the absence of reasonable, articulable circumstances to expand the stop).
I would reverse the conviction and remand for further proceedings without use of the evidence obtained as a result of the search.