This opinion will be unpublished and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,
Craig Robert Licari,
Filed November 23, 2004
Isanti County District Court
File No. K9-99-490
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeffrey R. Edblad, Isanti County Attorney, Isanti County Courthouse, 555 18th Avenue SW, Cambridge, MN 55008 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Craig Robert Licari appeals from an order issued on remand following an appeal to the supreme court in which he challenged the warrantless search of a storage unit that led to the discovery of the body of his estranged wife, Nancy Licari. See State v. Licari, 659 N.W.2d 243 (Minn. 2003). The supreme court remanded the matter for further proceedings on the following issues:
(1) whether the ‘relocation’ provision in the rental agreement, as it was to be applied by the landlord and appellant, provided such rights of ‘use’ as would confer upon the landlord actual authority to consent to the search of the storage unit; and (2) whether, in the absence of the April 27, 1999, search of the storage unit, investigators would have inevitably pursued, found and searched appellant and uncovered the same evidence as was uncovered on appellant on April 28, 1999.
Id. at 256.
On remand, a hearing was held at which additional testimony was presented. The district court concluded that the relocation clause of the lease did not reserve sufficient rights of use to provide the landlord with actual authority to consent to the search, and that the search was not justified under that theory. On the issue of inevitable discovery, the district court concluded that because police were engaged in an active investigation to locate appellant and Licari, and had obtained Licari’s credit card information for the purpose of tracking the usage of those cards, appellant inevitably would have been detained and incriminating evidence would have been found on his person, leading to discovery of Licari’s body. The court thus denied appellant’s motion to suppress evidence, and affirmed appellant’s conviction for second-degree murder and 330-month sentence.
The only issue raised in this appeal is whether the search was valid under the inevitable discovery doctrine. Because prior to discovery of the body an independent line of investigation had already begun, which ultimately or inevitably would have led authorities to discover the body by lawful means, we affirm the district court’s order denying appellant’s motion to suppress.
When reviewing pretrial suppression rulings, this court “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). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Under the doctrine of inevitable discovery, seized evidence is admissible even if the search violated the warrant requirement if the state can establish by a “preponderance of the evidence that the fruits of a challenged search ‘ultimately or inevitably would have been discovered by lawful means.’” Licari, 659 N.W.2d 254 (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509 (1984)). The “inevitable discovery doctrine ‘involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.’” Id. (quoting Nix, at 444-45 n.5, 104 S. Ct. at 2509 n.5). The test set out in Nix has been interpreted to include two elements: (1) there must be an “ongoing line of investigation that is distinct from the impermissible or unlawful technique”; and (2) there must be a “showing of a reasonable probability that the permissible line of investigation would have led to the independent discovery of the evidence.” United States v. Villalba-Alvarado, 345 F.3d 1007, 1019-20 (8th Cir. 2003).
The facts here show that prior to the discovery of Nancy Licari’s body, police had begun an active investigation to locate appellant and Licari. The investigation involved interviews with a number of people who provided police with information regarding the storage unit and Licari’s credit cards, as well as a note from appellant with a suicidal tone. This investigation further involved a sweep of the area by police and the issuance of a crime alert that stated, in part:
Type of Incident: Possible Abduction/Missing Person.
On Friday, April 23, 1999, estranged husband met with wife at a local cafe. Both have not been located as of this fax date.
The following vehicles are: 1991 red ford Tempo, Minnesota lic/9365HC.
Second vehicle: 1989 Ford Probe, silver in color, Minnesota LIC/ 666NAE.
Suspect: Craig Robert Licari DOB/ 123055 age 43, 180lbs, brown hair bear, (male)
Victim: Nancy Kay Licari DOB/010656 age 43, 5’-4” 150 lbs, blond hair, blue eyes. (female)
Suspect wrote note with Suicide & death!!!
The header on the alert warned: “If you encounter this person(s), observe and call 9-1-1 IMMEDIATELY. Do not confront!!!”
In the first omnibus hearing, BCA Special Agent Jon Hermann testified that credit card information is used to track usage in order to locate missing persons. Hermann acknowledged that Licari’s credit card companies were not contacted until the evening of Tuesday, April 27, after the discovery of her body. While Hermann acknowledged that the case did not involve any particular urgency or exigency until the body was discovered, he also indicated that there is always a concern of foul play in any missing person case.
At the hearing on remand, Hermann agreed that tracking credit card activity is a standard investigative tool when looking for missing persons because it “show[s] up-to-date, real time activity as to location of an individual using a specific card.” Hermann testified that he did not start tracking the usage of Licari’s credit cards until after her body was discovered. He explained that he did not receive the account information from Licari’s family until late afternoon or early evening on Monday, April 26, 1999; he further explained that by the time he was notified that a body had been found in the early afternoon on Tuesday, April 27, 1999, he “just hadn’t gotten to [contacting the credit card companies] that day.” He nevertheless agreed that even if the body had not been discovered, he “[a]bsolutely” would have “acted quickly” by following up with the credit card companies “typically within 24 to 48 hours” of receiving the information from the family. He further agreed that based upon the crime alert that he had sent out, he would have acted upon the credit card information “[p]robably a little quicker than normal.”
Appellant was located and arrested at a store in Minneapolis within 27 hours of the discovery of Licari’s body, within 48 hours of Hermann’s receipt of the credit card information, and within approximately 12 hours of Hermann’s contacting the credit card companies. Hermann testified that even if Licari’s body had not been discovered, once he received information on the usage of the credit cards, he would have contacted the store and requested that if anybody returned to use the card, that person should “be detained for us” to interview because of the missing persons alert. Hermann testified that when he observed appellant at the store in Minneapolis almost five days after Nancy Licari had disappeared, appellant appeared dirty and was wearing what appeared to be bloodstained clothing. Upon appellant’s arrest, he was found to be carrying Licari’s credit cards and the keys to the storage unit. Hermann testified that at that point a warrant would have been obtained to search the storage unit.
Appellant argues that the “historical facts of this case show that there was no active pursuit of an alternative line of investigation.” We disagree. Hermann’s testimony regarding the progression of the investigation was sufficient to establish that there was “an ongoing line of investigation that [was] distinct from” the warrantless search that led to the discovery of Licari’s body. Villalba-Alvarado, 345 F.3d at 1019.
Appellant next argues that it is too speculative to conclude that tracking the credit cards would have led law enforcement to find him. Appellant insists that tracking the credit cards led law enforcement to him only because the matter had taken on increased urgency after Licari’s body was discovered, an urgency that would not have occurred had her body not been discovered when it was. Again, we disagree. Hermann testified that he typically contacts credit card companies within 24 to 48 hours after receiving information on accounts and that in this case he probably would have acted sooner, given the urgency of the crime alert that had been sent out. The district court obviously found Hermann to be a credible witness. Thus, the district court did not clearly err in determining that there was a “reasonable probability” that the credit card tracking would have led to law enforcement’s locating appellant at the Target store when it did. See id.
Appellant argues that even if police would have inevitably tracked his use of the credit cards and discovered his purchases at Target and elsewhere, absent discovery of Licari’s body there would have been no lawful reason to arrest him. But Hermann also testified that once activity is reported on a credit card, he would have requested that the business detain the individual so that law enforcement could interview the individual and ascertain the status of the missing persons report. Hermann further testified that appellant appeared dirty when detained and that there were visible blood stains on his clothing. Given appellant’s appearance, his use of his estranged wife’s credit cards, and the fact that she had been missing for almost five days, there is a reasonable probability that he would have been detained and arrested, even if Licari’s body had not been found.
We therefore affirm the district court’s order on remand denying appellant’s motion to suppress the evidence seized from the storage unit.