This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Hennepin County District Court
File No. 03075558
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks,
Assistant Public Defender,
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Appellant Autumn Marie Ronning entered a Cub Foods store through the exit doors and picked up a plastic Cub Foods bag. A loss prevention officer, Kathleen Haskell, saw appellant take the bag, found her behavior to be an “attention-getter,” and began watching appellant on closed-circuit television. Haskell observed that appellant was in the store for “quite some time looking at many items.” After observing appellant for about 20 minutes, Haskell was called away to deal with a shoplifting incident. She resumed monitoring appellant later and saw appellant select some “facial products,” place them in the bag, “kind of close up the bag,” and walk past the cash registers to the exit. As appellant was exiting the first set of doors, a uniformed store employee was also leaving the store. Haskell observed that when appellant saw the store employee, she quickly turned around before exiting the last set of doors and walked to the women’s restroom, which is located inside the store about 10 feet from the first exit door. Haskell followed appellant into the restroom and identified herself as store security. Appellant was in the handicapped stall. Haskell asked appellant to come out of the stall several times but appellant stayed in the stall for at least one hour and 20 minutes. Appellant told Haskell that she was playing her Gameboy. Haskell heard odd noises at one point and observed through a crack in the door-hinge area of the stall that appellant had taken her clothes off. Appellant finally left the stall, fully clothed. Haskell testified that she observed a razor blade in appellant’s hand, which appellant placed on the sink.
At about this time,
Officer Flesland entered the women’s restroom and saw appellant washing her face in the sink. When the officer asked her why she had been in the stall for more than an hour, appellant denied that she had been in the stall for more than an hour and told the officer that she “had just gotten there.” Officer Flesland asked appellant if she had merchandise in the bag that she had not paid for and appellant told him that she was intending to pay for the merchandise when she left the restroom. Officer Flesland testified that appellant was agitated, angry, and was threatening him by taking aggressive stances and pacing.
Officer Flesland pat-searched appellant for weapons and arrested her for shoplifting. In a subsequent search of appellant’s backpack, the officer found substances that he believed to be cocaine, crystal methamphetamine, and heroin. These substances tested positive for the suspected narcotics. Appellant was charged with a controlled-substance crime.
Appellant moved to suppress evidence of the drugs, arguing that there was no probable cause to arrest her for shoplifting and that, in any event, a custodial arrest for a misdemeanor was not justified, making the search of her backpack unlawful. The state argued that appellant’s arrest was lawful under the shoplifting statute, Minn. Stat. § 629.366, subd. 2, which provides that “[u]pon a charge being made by a merchant or merchant’s employee, a peace officer may arrest a person without a warrant if the officer has reasonable cause for believing that the arrestee has committed or attempted to commit [a shoplifting offense.]”
Appellant argued that under the separation-of-powers doctrine, the shoplifting statute is a procedural statute that is invalid because it conflicts with the mandate of Minn. R. Crim. P. 6.01, subd. 1(a), requiring, in relevant part, an officer acting without a warrant in a misdemeanor to issue a citation unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm. Appellant asserts that there is no evidence that her arrest was necessary to prevent bodily harm. The state countered that the validity of the arrest provision of the shoplifting statute is statutorily preserved from conflicting-rule nullification and, alternatively, appellant’s behavior gave rise to a reasonable belief that she presented a danger to herself or others, justifying her detention under rule 6.01. The district court found that the officer had probable or reasonable cause to believe appellant had engaged in theft or attempted theft and that it was reasonable under the circumstances for the officer to conclude that appellant might pose a danger to herself, justifying arrest under rule 6.01. The district court did not reach the issue of whether Minn. Stat. § 629.366, subd. 2, is a procedural statute that conflicts with rule 6.01 or is void under the separation-of-powers doctrine.
After a bench trial on stipulated facts, appellant was convicted of and sentenced for fifth-degree controlled-substance crime. This appeal followed.
I. Standard of review
pretrial orders on motions to suppress evidence, appellate courts may
independently review the facts and determine, as a matter of law, whether the
district court erred in not suppressing the evidence. State v. Askerooth, 681 N.W.2d 353,
In this case, the
validity of the search that revealed the controlled substances in appellant’s
backpack hinges on the legality of her custodial arrest. Warrantless searches are presumptively
unreasonable unless falling under one of a few limited exceptions. State v. Licari, 659 N.W.2d 243, 250 (
II. Probable cause to suspect appellant of shoplifting
The district court found that Officer Flesland had reasonable cause to believe that appellant had committed shoplifting. Minn. Stat. § 629.366, subd. 2, provides that “[u]pon a charge being made by a merchant or a merchant’s employee, a peace officer may arrest a person without a warrant, if the officer has reasonable cause for believing that the person has committed or attempted to commit [theft in a business establishment as defined in section 629.366, subd. 1].” Appellant argues that the officer did not have probable cause to arrest her for shoplifting because the record does not show that a reasonable person would have had more than a mere suspicion that she was stealing or attempting to steal. Appellant also asserts that, because she immediately turned around and entered the restroom, she may have been simply distracted and had inadvertently begun to leave. Appellant also claims that her behavior of turning around before leaving the store demonstrated that “in good faith she abandoned any intent to steal.”
officer has probable cause to arrest a person if “the objective facts are such
that under the circumstances a person of ordinary care and prudence would
entertain an honest and strong suspicion that a crime has been committed.” State v. Camp, 590 N.W.2d 115, 118 (
Minn. Stat. § 609.52, subd. 2, provides in relevant part:
Whoever does any of the following commits theft . . .
and without claim of right takes, uses, transfers,
conceals or retains possession of movable
property of another without the other’s consent and with intent to deprive the owner permanently of possession of
Appellant’s hypotheses that she passed the cash registers without paying for the merchandise in her possession due to distraction or that by reentering the store she evinced an abandonment of any prior intent to commit theft, do not negate the existence of probable cause. When determining whether there is probable cause, the “ultimate inquiry is not whether there is some hypothesis of innocence which is reasonably consistent with the circumstances shown, for such an analysis is more appropriate to the ‘beyond a reasonable doubt’ standard used on the merits.” State v. Hawkins, 622 N.W.2d 576, 580 (Minn. App. 2001) (quotation omitted).
Appellant argues that a custodial arrest was not warranted under Minn. R. Crim P. Rule 6.01 and that under the rule, the officer should have issued a citation for shoplifting and released her. Minnesota Rules of Criminal Procedure, Rule 6.01, provides:
Subd. 1 Mandatory Issuance of Citation.
(1) For Misdemeanors.
(a) By Arresting Officers. Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears necessary to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another. . . .
The district court found that appellant’s arrest could reasonably have appeared necessary to prevent bodily harm. There is no caselaw or other authority brought to our attention that defines what constitutes a reasonable appearance that detention is necessary to prevent bodily harm to the accused or another. Using a common-sense, totality-of-the circumstances approach, on this record, we conclude the district court’s finding is not clearly erroneous. The officer was aware of appellant’s bizarre behavior, which included being in the store for a long period of time, being in the restroom for more than an hour, disrobing, talking loudly, being agitated, jittery, and taking what the officer perceived as aggressive stances. The officer testified that he felt threatened by appellant’s behavior. These facts support the district court’s finding that arrest reasonably appeared necessary to prevent bodily harm. We conclude, therefore, that the district court did not err in holding that appellant’s arrest was consistent with Rule 6.01 and that the search of her backpack was lawful as incident to a valid arrest.
IV. Arrest pursuant to
Although the district court did not reach the issue of the legality of appellant’s arrest under Minn. Stat. § 629.366, subd. 2, we hold, in the alternative, that appellant’s arrest under that statute does not conflict with Rule 6.01 because section 629.366, subd. 2, is specifically excepted from any preemptive effect of the rule. Minn. Stat. § 480.059, subd. 1. Minn. Stat. § 480.059, subd. 7(f), states that provisions relating to extradition, detainers, and arrest found in sections 629.01 to 629.404 are excepted from the provision of section 480.059, subd. 7, which in turn, states that statutes conflicting with a rule have no force and effect. See State v. Ronquist, 578 N.W.2d 4, 6 (Minn. App. 1998) (holding that a statute listed in exceptions to section 480.059 subd. 7, remained in full force and effect notwithstanding a conflicting procedural rule), review granted (Minn. Jun. 17, 1998), aff’d, 600 N.W.2d 444 (Minn. 1999).
V. State constitutional challenge to arrest under State v. Askerooth
For the first time on appeal, appellant raises an argument
that her arrest and search were unreasonable under the state constitution and State
v. Askerooth, 681 N.W.2d 353 (Minn. 2004).
An appellate court generally will not decide issues that are raised for
the first time on appeal even if the issues involve constitutional questions
regarding criminal procedure. State
v. Sorenson, 441 N.W.2d 455, 457 (
In Askerooth, the supreme court addressed the legality
of a police officer’s confinement of a driver in the back seat of a squad car
during a routine traffic stop. 681
N.W.2d at 359. After telling the driver
that he would be issued citations for misdemeanor traffic violations, the
officer asked the driver for permission to search his vehicle, which was
The supreme court determined that evidence of the controlled
substance should have been suppressed.
The court first affirmed that the reasonableness of a traffic stop is
analyzed under Terry v. Ohio principles.
The case before us is significantly different. It does not involve a traffic stop and it does involve a statute specifically authorizing a custodial arrest. We find no merit in appellant’s argument based on Askerooth.
 At the Rasmussen hearing, Haskell admitted that she did not mention the razor blade in her written report made shortly after the incident. The arresting officer testified that, to his recollection, the razor blade was not mentioned to him and he did not recover a razor blade from the scene. The court did not make a finding about whether or not appellant had a razor blade.
If an arrest is valid, police may, without a warrant, conduct a full
search of the person of the arrestee without any additional justification. State v. Walker, 584 N.W.2d 763, 766 (