may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Rex Lee Rogers,
Hennepin County District Court
File No. 02073406
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487
Phillip S. Resnick, Phillip S. Resnick and Associates, 527 Marquette Avenue, Suite 1925, Minneapolis, MN 55402 (for appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction of and sentence for kidnapping, appellant Rex Lee Rogers argues that the district court erred when it denied his pretrial motion to suppress identification evidence and abused its discretion by imposing a double durational sentencing departure. We affirm.
Jose Garcia worked at Whitney’s Market in Minneapolis. Appellant, apparently an owner of the store, believed that Garcia was stealing from the store. On September 5, 2002, Garcia was forcibly taken to the basement of the store where he was handcuffed to a pole, beaten, blindfolded, and terrorized. Garcia was threatened with sexual assault and death, and duct tape was placed over his mouth. Garcia was left chained in the basement for approximately seven hours.
At approximately 10:30 p.m., a fire in the building was reported. Fire Captain Joe Mattison was one of the first people to arrive at the scene. He observed smoke in the store and emanating from the chimney. He also saw two men leaving the store, and it appeared that they were locking the door behind them. Mattison told the men that he was obligated to go into the building and investigate. The men told Mattison that a small ashtray can started on fire, but the fire was out. Mattison thought the men’s behavior was suspicious because, in his experience, most people want firefighters to investigate, so he radioed for police. The two men allowed Mattison and his crew to enter the building. Mattison testified that after entering the building, he heard a knocking sound and as he got closer, he heard a muffled voice. Mattison and his crew eventually came upon Garcia. Due to the smoke in the building, the crew needed to provide oxygen for Garcia while they used a bolt cutter to free him. The crew eventually removed Garcia from the building and extinguished the fire.
As the fire crew was rescuing Garcia, Sergeant Sean McKenna arrived to assist in determining the origin of the fire. Mattison told McKenna about the earlier conversation with the two men. While investigating the fire, McKenna saw a photograph hanging on the wall of the store. McKenna recognized appellant in the photo because he had worked with appellant in 1981. McKenna radioed for the fire crew to return, and after looking at the photograph on the wall, Mattison identified the man in the photo as one of the persons he had spoken to earlier. McKenna estimated the time of the identification to be around 1 a.m. A search warrant was executed at 2:30 a.m.
Appellant was charged with kidnapping in violation of Minn. Stat. § 609.25, subds. 1(3), 2(2) (2002). Appellant moved to suppress Mattison’s identification of him as the product of an illegal search. Appellant also asserted that the identification procedures used were impermissibly suggestive and created a substantial likelihood of irreparable misidentification. The district court denied appellant’s motion. The court found that due to the exigent circumstances of the fire, a warrant was not necessary. The court also found that under the totality of the circumstances, Mattison’s identification of appellant was reliable and the identification procedures did not cause irreparable misidentification.
Following a jury trial, appellant was found guilty of kidnapping. The presumptive sentence for this severity-level-VIII offense with zero criminal history points was 48 months. The state moved for an upward departure, and the district court sentenced appellant to 96 months.
The state argues that appellant does not have standing to contest the warrantless search because the area searched was the front retail area of a business, and appellant did not demonstrate that he had an expectation of privacy in the area.
“Generally a person doing business as a corporation, even if he or she is the sole shareholder, may not vicariously assume the corporation’s Fourth Amendment rights.” State v. Richards, 552 N.W.2d 197, 204 (Minn. 1996). The protection guaranteed by the Fourth Amendment “is personal and individual, regardless of whether the one protected is a natural person or a . . . corporation.” Id. “A defendant who cannot demonstrate a legitimate expectation of privacy relating to the area searched or the item seized will not have standing to contest the legality of the search or seizure.” Id. “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s . . . property has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425 (1978).
The issue of standing may be waived by failing to raise the issue in the district court where a factual record with respect to standing can be developed. Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001). The state raised the standing issue at the Rasmussen hearing, but the district court did not address the argument in its ruling. Generally, this court will not review matters that were not decided by the district court. State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995). But, “[a] respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003).
At the Rasmussen hearing, the state challenged appellant’s standing on the basis that appellant had not established that he owned the store. After appellant offered to testify for the limited purpose of stating that he was the owner, the court instructed the parties to confer with the intent of reaching an agreement to stipulate to ownership of the store. The record does not indicate whether the parties conferred and agreed to stipulate. But because the district court addressed appellant’s suppression argument, we presume that the court concluded that appellant had standing to challenge the search.
On appeal, the state does not contend that appellant does not have standing because he did not own the store; the state argues that appellant does not have standing because he did not demonstrate that he excluded others from the area searched, and therefore, he did not have a legitimate expectation of privacy in the area. But the record does not contain sufficient facts to permit us to consider the alternative theory that the state raises for the first time on appeal. Therefore, the state has waived the issue of standing. Garza, 632 N.W.2d at 637; see In re Welfare of B.R.K., 658 N.W.2d 565, 571-72 (Minn. 2003) (addressing standing by reviewing two-step analysis that focuses on defendant’s behavior).
Appellant argues that the district court erred when it failed to suppress the pretrial identification of him based upon a photograph obtained during a warrantless search of his business.
When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The underlying factual findings are subject to a clearly erroneous standard of review. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution generally require that a warrant be obtained before the government can search the home or business of a private individual. U.S. Const. amend. IV; Minn. Const. art. I, § 10; State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996) (stating Fourth Amendment protection reaches business premises). “Absent exigent circumstances and probable cause, or consent, a warrantless entry and search . . . is per se unreasonable and violates the Fourth Amendment.” B.R.K., 658 N.W.2d at 578.
Appellant concedes that fire fighters may enter a building without a warrant to determine if anyone is in danger or if assistance is needed, but he contends that once Garcia was removed and the fire was put out, McKenna and Mattison had no authority to be inside the store, and the police should have obtained a warrant before conducting any investigation because there is no crime-scene exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 395, 98 S. Ct. 2408, 2415 (1978) (holding there is not “murder scene exception” to the Fourth and Fourteenth Amendments). We disagree.
“[O]fficials may remain at [a fire] scene to investigate the cause of a fire for a reasonable time after it has been extinguished without having obtained a warrant.” State v. Olsen, 282 N.W.2d 528, 531 (Minn. 1979) (citing Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 1950 (1978)). “Prompt investigation is necessary for public safety, to help prevent a recurrence of the fire.” Id. “Prompt investigation also minimizes the risk that evidence of the origin of the fire will be destroyed, either accidentally or intentionally. Furthermore, a prompt investigation interferes the least with the privacy and recovery efforts of the victims.” Id. (quotation omitted).
In Olsen, the fire marshal’s investigation into the cause of a fire was not initiated until an hour after firefighters had left the scene. Id. at 531-32. Nonetheless, the supreme court held that “the subsequent warrantless entries were justified by the same exigencies that would have justified [the investigators] having remained on the scene in the first instance.”  Id. at 531.
McKenna arrived on the scene and began his investigation while the firefighters were still present. McKenna testified that he was called to assist the fire department in determining the origin of the fire. Minnesota law permits the fire marshal and subordinates to enter a building after a fire has been extinguished to investigate the cause of the fire, prevent reccurrence, and gather evidence. Minn. Stat. §§ 299F.04, 299F.08 (2002); Olsen, 282 N.W.2d at 531. Under these circumstances, we conclude that the same exigencies that permitted the fire fighters to enter the building without a warrant justified McKenna remaining in the building and Mattison returning to the building to investigate the cause of the fire after Garcia was removed and the fire was extinguished.
Appellant argues that Mattison’s identification of him should be suppressed because the circumstances surrounding the identification were so leading and suggestive that they created the likelihood of misidentification. Appellant contends that under the totality of the circumstances, Mattison’s identification of him is unreliable because Mattison spoke with two men for one minute in an emergency situation at 10:30 p.m. and several hours later was asked to look at a photo of appellant and determine if he was one of the men that Mattison spoke with at the door of the building.
“When determining the admissibility of identification testimony, the reliability of the identification is critical.” State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). If the techniques used by police officers “are tainted by suggestion, the result may be irreparable misidentification.” Id.
In determining whether pretrial eyewitness identification evidence must be suppressed, a two-part test is applied. The first inquiry focuses on whether the procedure was unnecessarily suggestive. Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification. Single photo line-up identification procedures have been widely condemned as unnecessarily suggestive. However, under the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence was reliable. If the totality of the circumstances shows the witness’ identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure. The test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification.
State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citations omitted).
In considering the totality of the circumstances, courts evaluate five factors: (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness’s degree of attentiveness; (3) the accuracy of the witness’s prior description of the suspect; (4) the level of certainty demonstrated by the witness at the photo display; and (5) the amount of time that elapsed between the crime and the identification. Id. (citing State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972))).
The district court did not address whether the identification procedure was unnecessarily suggestive. But this omission does not require reversal because under the second prong of the test, even if the identification procedure was suggestive, the identification evidence is still admissible if the totality of the circumstances establishes that the evidence was reliable. Ostrem, 535 N.W.2d at 921-22 (presuming, without actually determining, that identification procedure was unnecessarily suggestive but nonetheless concluding that evidence was admissible because the identification was reliable).
“While a one-person show-up is by its very nature suggestive, the question [this court] must answer is whether the show-up procedure used . . . was unnecessarily suggestive.” Taylor, 594 N.W.2d at 162. An identification procedure is unnecessarily suggestive where a suspect is unfairly singled out for identification. See id.(distinguishing facts of case by stating, “[t]his is not a case where the police singled [defendant] out from the general population based on a description given to them by a victim, and then proceeded to present him to the victim, in handcuffs, for identification in a one-person show-up”). “Ultimately, the concern is whether the procedure used by the police influenced the witness identification of the defendant.” Id. at 161.
McKenna asked Mattison to return to the store to view the photograph hanging on the wall. At that time, McKenna did not know what, if any, connection appellant had to the fire or the kidnapping offense. But learning the identity of the two men who were leaving the building was a logical inquiry in determining the cause of the fire. McKenna pointed to the photo on the wall and asked Mattison if appellant was one of the two men Mattison had spoken with upon arriving at the scene. He asked Mattison to be honest if he did not know or was unsure. Mattison was certain that appellant was one of the two men he had spoken with earlier and identified appellant as the one he saw locking the door and who later unlocked the door. Mattison testified that his eyesight was 20/20, that he stood less than a foot away from appellant as they spoke, and that the area was well lighted. Nothing in the record indicates McKenna influenced Mattison to identify appellant as the man Mattison had spoken with earlier. McKenna said nothing about a matching description, a suspect being apprehended, or even that he was acquainted with appellant.
Even if the identification procedure used was unnecessarily suggestive, the identification was nonetheless admissible because the totality of the circumstances supports the district court’s conclusion that the evidence is reliable: Mattison had an opportunity to see appellant from close range in a relatively well-lighted area; his attention was focused on the two men, who did not want Mattison to enter the building despite the presence of smoke; although the Rasmussen hearing transcript was unclear with respect to whether or how Mattison described appellant to McKenna before identifying him in the photo, Mattison was certain about his identification of appellant in the photo; and the identification was made within three hours after Mattison spoke with appellant. We conclude that under the totality-of-the-circumstances test, the photo identification of appellant was reliable, and the district court did not err by refusing to suppress the identification.
Appellant argues that the circumstances did not justify a double durational departure.
The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). In determining whether to depart, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). “When a district court departs, it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). “If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a ‘strong feeling’ that the sentence is disproportional to the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984). Only one aggravating factor need be present and cited by the sentencing court to justify a departure. Givens, 544 N.W.2d at 776 n.3.
The district court articulated three reasons for the departure: (1) the victim was treated with particular cruelty; (2) the offense involved a high degree of planning; and (3) the offense was committed as a part of a group of three or more persons who all actively participated in the crime.
Garcia was gagged with duct tape, blindfolded, and handcuffed to a pole for seven hours without food, water, or access to a toilet. He was beaten and threatened with death and sexual assault. When the fire started, Garcia was left handcuffed to the pole. Each of these circumstances has been recognized as a basis supporting an upward departure for treating a victim with particular cruelty. See State v. Winchell, 363 N.W.2d 747, 751 (Minn. 1985) (affirming departure where defendant bound and threatened victims with sexual assault, acted with another party, and held gun next to one victim’s head); State v. Vikeras, 378 N.W.2d 1, 4 (Minn. App. 1985) (affirming departure where victim was subjected to psychological terror, kept without food, water, or toilet for 9 hours, and driven around in a crate where weather was cold and where victim required hospitalization following rescue).
The record also establishes that the crime was carefully planned and carried out by three or more individuals. Minn. Sent. Guidelines II.D.2.b.(10) (listing as an aggravating factor when three or more persons are actively involved in committing a crime). Appellant originally sought to burglarize Garcia’s home and vehicle to look for evidence that Garcia was stealing from the store. After an employee refused to steal Garcia’s keys for that purpose, appellant recruited three accomplices and provided funds to purchase handcuffs, and all four men were actively involved in forcing Garcia to the basement and terrorizing him.
Because the record supports the district court’s findings that substantial and compelling circumstances exist to depart upwardly, and we have no strong feeling that appellant’s sentence is disproportional to his offense, we conclude that the district court did not abuse its discretion in sentencing appellant.
Appellant contends that if he had been convicted of kidnapping where the victim suffers great bodily harm, the presumptive sentence would have been 86 months. Minn. Sent. Guidelines IV-V. Therefore, appellant argues, because the jury found by special interrogatory that Garcia did not suffer great bodily harm, the court essentially overrode the jury’s verdict and punished him as if the jury had found that he inflicted great bodily harm.
But the mere fact that appellant’s sentence is approximately the same as the presumptive sentence for a different crime, does not make the departure invalid. In sentencing on a kidnapping conviction, the sentencing court is permitted to consider what happened during the kidnapping. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled on other grounds by Givens, 544 N.W.2d at 777 & n.4 (holding defendants may relinquish right to be sentenced under guidelines and overruling Garcia to extent it is inconsistent). The evidence demonstrates that appellant’s conduct during this kidnapping was significantly more serious than that typically involved in kidnapping.
Finally, appellant argues that the sentencing departure was extreme and that appellate courts generally approve such departures only in cases that involve sexual abuse or murder. But a district court’s discretion to depart from the sentencing guidelines is not limited to murder or sexual abuse cases. Minn. Sent. Guidelines II.D. The aggravating factors provided in the guidelines apply to all cases. Minn. Sent. Guidelines II.D.2.b. “Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.” State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). The district court sentenced appellant to 96 months, which is double the presumptive sentence.
 The facts are derived from the transcripts of the January 2003 evidentiary hearing and the March 2003 sentencing hearing; appellant did not provide a transcript of the trial.
 The supreme court did not uphold the subsequent warrantless entry by narcotics investigators who were dispatched to the scene because of the reported presence of narcotics. Olsen, 282 N.W.2d at 532. However, because the evidence uncovered by the narcotics investigators was cumulative to that uncovered in the lawful fire investigation, the supreme court held that the district court’s error in failing to exclude the evidence was not reversible error. Id.
 A one-person show-up is a one-to-one confrontation between a suspect and a witness. Taylor, 594 N.W.2d at 159 n.1. While the facts here do not conform precisely to this definition, the test to determine whether the identification procedure was tainted is the same. Id. at 161-62.
 The state concedes that the district court erred in considering Garcia’s immigration status as a factor contributing to his vulnerability. Minn. Sent. Guidelines II.D.2.b.(1) (stating vulnerability relates to “age, infirmity, or reduced physical or mental capacity”).