This opinion will be unpublished and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,
Thomas Alan Krabbenhoft,
Filed July 6, 2004
Clay County District Court
File No. KX-02-1582
Mike Hatch, Attorney General, Jerilyn Aune Hanold, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*
On appeal from his conviction for first-degree controlled substance crime, appellant Thomas Alan Krabbenhoft challenges the legality of the search of the vehicle in which he was found asleep and later arrested on an outstanding felony bench warrant. The vehicle was searched both at the scene of the arrest and at the law enforcement center garage where the vehicle was towed. During the searches, the sheriff’s deputies discovered methamphetamine and other evidence of drug activity.
Appellant argues that the district court erred in denying his suppression motion because the state failed to prove that the drug evidence was discovered during a valid inventory search. Appellant has also filed a pro se supplemental brief in which he reiterates claims made in his appellate brief regarding the inconsistencies in the deputies’ testimony and the lack of evidence to support the validity of the inventory search.
Because the state failed to present sufficient evidence to establish the content of the department policy governing inventory searches and whether the deputies here followed that policy, we conclude that the searches were invalid and that the evidence obtained during those searches should have been suppressed. We therefore reverse the district court’s denial of appellant’s suppression motion and remand to determine whether, without this evidence, appellant’s conviction must be vacated.
This court reviews a district court’s suppression order de novo. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002). When reviewing the legality of a search, this court will not reverse the district court’s factual findings unless clearly erroneous or contrary to law. Id.
Subject to certain limited exceptions, warrantless searches are “per se unreasonable” and prohibited by the Fourth Amendment. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000); State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). The burden of proof is on the state to establish the existence of an exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001); State v. Fitzgerald, 562 N.W.2d 288, 288 (Minn. 1997).
1. Inventory Search
At the omnibus hearing, the parties focused on whether the searches here were valid under the inventory exception. “The inventory exception . . . permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of an inventory and not for the sole purpose of investigation.” Ture, 632 N.W.2d at 628. During a valid inventory search, police may search the entire vehicle, including any closed containers inside the vehicle, as long as they are following a standard department policy. State v. Ailport, 413 N.W.2d 140, 145-46 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987).
Inventory searches are reviewed “under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.” State v. Holmes, 569 N.W.2d 181, 187 (Minn. 1997) (quotation omitted). Objective facts must demonstrate, at the very least, that the officer had a dual purpose of performing an administrative inventory search, as well as an investigative purpose. Ture, 632 N.W.2d at 629; Holmes, 569 N.W.2d at 188. An administrative purpose may be shown by evidence that the department had an inventory policy and that officers followed that policy. Ture, 632 N.W.2d at 628. It is not necessary to introduce a written copy of the policy, as long as there is testimony to establish that standard inventory procedures existed and were followed. Id.
Here, the state offered little evidence regarding the department policy on inventory searches. The written policy was not introduced into evidence. At the omnibus hearing, the arresting deputy stated that he decided to impound the vehicle after he arrested appellant because it was “parked in front of the complainant’s garage, or it was very close.” The deputy started to perform an inventory search of the vehicle at the scene, but was unable to complete the search due to the “sheer amount of property inside the vehicle,” and to the fact that he was the only deputy on duty and had to respond to a stolen vehicle report. The deputy acknowledged that he found narcotics in the passenger compartment and in the trunk of the vehicle at the scene.
The deputy testified that he and another deputy were able to perform a complete inventory search of the vehicle later at the law enforcement center garage. The deputy prepared an initial report and a supplemental report listing the items found, and a worksheet while the inventory was being done to list and document the evidence in police possession.
On cross-examination, the deputy explained that he has performed a substantial number of inventory searches, probably more than 50. He further explained that he normally performs these types of searches in the field before a vehicle is towed to the garage. The deputy acknowledged that the sheriff’s department has a written policy for inventory searches and that he has seen that policy; he could not state, however, that the policy allows a search to take place in the field because “[t]here was a change and there’s a new policy.” While the deputy had a copy of the new policy in his squad car, he admitted: “I really don’t know exactly as to the wordage of that policy. My typical operating practice, what I’ve done in the past, hasn’t been found to be against policy, which is to attempt to inventory at the scene of the initial stop.”
Thus, while the arresting deputy testified at the omnibus hearing that the department had a new written policy, he admitted that he was not familiar with the language of the new policy and failed to specifically state that he had followed the policy here. The deputy merely testified that he has conducted a significant number of inventory searches and that his searches have never been challenged or found to be invalid. This is insufficient to establish the content of department policy and whether that policy was followed during the searches in this case.
Admittedly, during trial, the deputy offered a little more detail regarding the reasons behind the policy regarding inventory searches, and he and the deputy who assisted him in searching the vehicle at the garage both testified that inventory sheets were filled out to describe the items seized and where they were found in the vehicle. But neither deputy offered any testimony linking the department policy with the procedures followed here. At the very least, the deputies should have been questioned regarding the content of the department policy regarding inventory searches and about whether they followed that policy here. Without this evidence, we cannot conclude that the searches of the vehicle in which appellant was found were valid under the inventory exception to the warrant requirement.
2. Search Incident to Arrest
Another exception to the warrant requirement permits a search of a person’s body and the area within his or her immediate control incident to the person’s arrest. Robb, 605 N.W.2d at 100. This exception insures officer safety by allowing officers to remove any weapons an arrestee might reach and also prevents an arrestee from tampering with or destroying evidence or contraband. Id. Due to the difficulty of applying this exception, the Supreme Court has established a “bright line” rule, which allows police to automatically search a vehicle’s passenger compartment when an occupant is lawfully arrested. Id. (citing New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981)).
On appeal, the state argues that this court need not decide whether the searches were valid inventory searches because the initial search was “clearly a valid search incident to arrest.” The parties agree that the state is raising this issue for the first time on appeal. They disagree, however, on whether this court can now render a reasoned decision on the issue. See State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (holding that state did not waive issue raised for first time on appeal, “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. Garza, 632 N.W.2d 633, 637 (Minn. 2001) (holding that state waived issue by failing to raise it at omnibus hearing, where state failed to build factual record and where appellate court did not believe issue was necessary to interests of justice).
Appellant argues that the record here is deficient in one critical respect: it fails to establish whether the arresting deputy first searched a container in the passenger compartment or a duffel bag in the trunk, both of which held contraband. The evidence is clear that at the scene, the deputy searched not only the interior of the vehicle, where he found and opened a container holding what appeared to be a narcotic, but also the trunk, where he seized and opened a duffel bag that also appeared to contain a narcotic. But the sequence of the search is unclear and the deputy’s testimony on this point is inconsistent: at one point, he stated that he searched the interior of the vehicle first, while at another he testified that he initially searched the trunk.
Given the inconsistency in the testimony and the lack of a complete record regarding the sequence of the search, we conclude that the state has waived the right to raise the issue of whether the initial search was valid as incident to an arrest. Once appellant moved to suppress the evidence, the burden was on the state to prove that the searches were valid. See Ture, 632 N.W.2d at 627 (stating burden is on state to prove existence of exception to warrant requirement). In order to meet its burden, the state must anticipate what exceptions to the warrant requirement might apply and develop the factual record accordingly. Its failure to do so here precludes us from adequately addressing this issue on appeal.
We therefore reverse the district court’s determination that the searches were valid and remand for further proceedings not inconsistent with this opinion.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In its omnibus order, the district court found that the arresting deputy “discovered a controlled substance and drug paraphernalia under the driver’s seat” at the scene, and then, after resuming the search later after the vehicle was impounded and towed, “discovered duffel bags in the trunk.” Given the deputy’s inconsistent statements and lack of clarity regarding the sequence of the search at the scene and his statement that he searched the trunk of the vehicle at the scene, we conclude that the district court’s findings on this point are clearly erroneous.