This opinion will be unpublished and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
Filed May 17, 2005
Kandiyohi County District Court
File No. K8-01-551
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Stoneburner, Presiding Judge, Willis, Judge, and Crippen, Judge.
Following his conviction of a controlled-substance offense, appellant challenges the district court’s denial of his motion to suppress evidence obtained subsequent to an illegal search by police. Because the record sustains the district court’s determination that the evidence was not fruit of the poisonous tree, we affirm.
Kveene then talked to the front-desk employee and
learned that, contrary to appellant’s statement, appellant had rented a
room. Kveene returned to the parking lot
and asked appellant why he had lied about the room. Appellant admitted renting the room but
insisted he rented it for his brother,
Kveene informed appellant that he did not intend to arrest him for the paraphernalia nor cite him for the expired tabs and alcohol, but asked appellant for permission to search his motel room. Appellant again said that it was his brother’s room and that he had not been in it. Kveene told appellant that as renter of the room, he could grant permission for the search or decline to provide consent. Kveene informed appellant that law enforcement could bring a dog to the site and obtain a warrant that way. Approximately five minutes after Kveene’s inquiry at the front desk and repeated requests for appellant’s permission to search the room, appellant permitted entry into the room.
Once inside the room, Kveene found equipment and supplies consistent with the manufacture of methamphetamine. Kveene arrested appellant and advised him of his Miranda rights. After taking incriminatory statements and conducting further searches with warrants, appellant was charged with drug offenses. A jury found appellant guilty of conspiracy to commit a controlled-substance crime in the first degree in violation of Minn. Stat. §§ 152.021, subd. 2(a), 3, .096, subd. 1 (2000). The district court stayed appellant’s 86-month prison sentence.
his first appeal, appellant questioned the district court’s judgment that he
waived any suppression claims based on the pat-down search, arguing further that
the pat-down search violated his right to be free from unreasonable search and
seizure. This court remanded with
instructions that the district court address the pat-down search and the
fruit-of-the-poisonous-tree claims. State v.
remand, the district court issued a supplemental omnibus order concluding that
the pat-down search was not based on a reasonable, articulable suspicion and
was thus improper. But the court also
determined that evidence obtained from the search of the motel room and
subsequent incriminating statements and searches were not fruit of the
poisonous tree. Because the evidence
discovered during the pat-down search—methamphetamine paraphernalia and
appellant’s conversation with
exclusionary rule provides that “evidence discovered by exploiting previous
illegal conduct is inadmissible.” State v. Olson, 634 N.W.2d 224, 229
(Minn. App. 2001) (citing Wong Sun v.
United States, 371
district court recognized, several factors determine whether evidence is fruit
of the poisonous tree: “(1) the purpose
and flagrancy of the officer’s misconduct, (2) the presence of intervening
circumstances, (3) whether it is likely the evidence would have been obtained in
the absence of the illegality, and (4) the temporal proximity of the illegality
and the evidence alleged to be the fruit of the illegality.” State
v. Bergerson,659 N.W.2d 791, 797
(Minn. App. 2003) (citing State v.
Warndahl, 436 N.W.2d 770, 776 (
contends that the district court erred in its application of the Bergerson factors. “When reviewing pretrial orders on motions to
suppress evidence, we 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.
Presence of Intervening Circumstances
primarily argues that the district court erred by identifying his consent as an
intervening circumstance. If consent is
“manifestly voluntary and is not a product of an illegal arrest, it will not be
deemed tainted by the arrest and will fall outside the bounds of the
exclusionary rule.” State v. Hoven, 269 N.W.2d 849, 854 (
The district court found that appellant’s consent to search the room was “manifestly voluntary” and constituted an intervening circumstance that weighed heavily against suppression. The court noted that appellant “was outside, near his own vehicle, and had been told that he was free to leave,” and when Kveene asked for consent, appellant “had not been arrested, handcuffed, or otherwise confined.” The court took into consideration appellant’s youth and inexperience with the criminal justice system. The court also noted that Kveene told appellant he would not be arrested for the methamphetamine residue and paraphernalia found on his person and stated at least twice that he did not have to consent to the search.
response to appellant’s coercion argument, the district court characterized
Kveene’s attempt at obtaining consent as “trying to make the situation less threatening by disregarding the
fruits of the pat-down, and being extra careful to make sure that [appellant’s]
consent was voluntary.” Appellant
contends that Kveene’s statement that a dog sniff could be performed was
coercive. But a threat to obtain a
warrant supported by probable cause does not necessarily invalidate otherwise
voluntary consent. United States v. Larson, 978 F.2d 1021, 1024 (8th Cir. 1992); see also State v. Hanley, 363 N.W.2d
735, 739 (
Purpose and Flagrancy of Officer’s Misconduct
The district court stated that the flagrancy of Kveene’s conduct weighed “only slightly in favor of suppression,” finding no reason to doubt that Kveene performed a pat-down because he “honestly, if unreasonably, feared that [appellant] would try to harm him.” With respect to the purpose and flagrancy of Kveene’s misconduct, appellant contends that Kveene committed flagrant misconduct that makes application of the exclusionary rule “particularly appropriate.” Appellant asserts that the court erred by basing its analysis of this factor on two clearly erroneous factual findings: (1) that Kveene was afraid of appellant, and (2) that Kveene did not initiate contact with appellant.
The district court found that
appellant made no threats against Kveene and appellant claims that Kveene never
testified that he had any fear of appellant.
But Kveene testified that when he performed the pat-down “to determine
any bulges that might be weapons,” he already suspected “that there was a
possibility there could be a relationship to the methamphetamine here” and that
“people that use methamphetamine can be very paranoid.” The district court found that Kveene’s
suspicions were not sufficiently reasonable to justify the pat-down in light of
appellant’s constitutional rights, but the record permits the district court’s
inference that Kveene’s subjective intent in performing the pat-down was
officer safety. Regarding the court’s
second questioned finding, Kveene testified that after talking with
Likelihood of Obtaining Evidence in Absence of Illegality
contests the district court’s determination that the evidence would have been
discovered without fruit of the pat down because Kveene did not use the illegal
search to obtain consent and because the illegal search did not uncover
probable cause to enter the motel room.
The state responds that appellant’s argument erroneously applies the
inevitable discovery doctrine, which is distinct from the third factor in
fruit-of-the-poisonous-tree analysis. See State v. Bale,267 N.W.2d 730, 732 (
The court noted that, prior to the pat-down search, Kveene had already determined that appellant had rented the room. The court’s findings of fact also confirm Kveene’s awareness that appellant was lying to him about having rented the room for his brother, Kveene’s knowledge that appellant’s brother had an outstanding arrest warrant, and that appellant’s present companion was suspected of involvement in a methamphetamine lab. All of this knowledge preceded the discovery of methamphetamine residue and paraphernalia resulting from Kveene’s pat-down of appellant. These facts permit the conclusion that Kveene would have pursued a dog sniff of the door of the motel room regardless of what Kveene discovered on appellant’s person or whether appellant provided consent to search.
Temporal Proximity of Illegality and Subsequent Discovery of Evidence
The district court stated that the fact that the request for consent and the resulting search immediately followed the illegal pat-down favored suppression of the evidence. Considering all of the factors, the court stated that “[w]hile it cannot be said that a violation of one’s constitutional rights is ever insignificant, the pat-down . . . was . . . not flagrant misconduct,” and Kveene did not use the fruit of the pat-down “as probable cause to search the motel room, or as a bargaining tool in coercing consent.”
Because appellant’s “manifestly voluntary” consent and the likelihood of the discovery of the evidence absent the illegal conduct outweighed the other factors, the district court found that the evidence obtained from the motel room was sufficiently distinguishable to be purged of the primary taint of the illegality. Notwithstanding the weight of the factors which favored suppression in the court’s estimation, its decision is sound in light of the legal standard. See Bergerson, 659 N.W.2d at 797 (stating that factors must be balanced and no single factor is dispositive).
In light of the record below, the district court’s decision not to suppress the evidence obtained following the illegal search was not erroneous. We affirm the court’s denial of appellant’s motion to suppress evidence obtained from the search of the motel room and subsequent statements and searches.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.