This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1122

 

 

State of Minnesota,

Respondent,

 

vs.

 

Antonio De Jesus Loera Carbajal,

Appellant.

 

 

Filed June 14, 2005

Affirmed

Toussaint, Chief Judge

 

Olmsted County District Court

File No. K0-03-3733

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, 151 S.E. Fourth Street, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Maria Villalva Lijo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

†††††††††† Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.


U N P U B L I S H E D† O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant Antonio de Jesus Loera Carbajal, who was convicted of second-degree controlled substance after submitting his case to the district court pursuant to a Lothenbach stipulation, challenges the district courtís denial of his motion to suppress narcotics evidence and his motion for a downward dispositional departure.† Because the narcotics evidence was recovered in a search incident to arrest, and the district court did not abuse its discretion in denying Carbajalís motion for a downward departure, we affirm.

D E C I S I O N

I.

Carbajal first argues that the district court erred in finding that he was properly searched incident to arrest and in denying his motion to suppress narcotics evidence recovered in the search.† On review of a pretrial suppression order, a district courtís factual determinations are given great, but not unlimited, deference.† State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), affíd, 508 U.S. 366, 113 S. Ct. 2130 (1993).† This court may independently examine the facts and determine as a matter of law whether the district court erred in its decision.† State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).†

At the omnibus hearing, Officer Matt Krambeck testified that when he arrived at the scene an off-duty officer identified Carbajal as the individual who punched a man in the face, causing visible injury. †This assault occurred following an argument between Carbajal and the other man in a store parking lot.† The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures.† U.S. Const. amend. IV; Minn. Const. art. I, ß 10.† Warrantless searches are presumptively unreasonable unless they fall under one of a few limited exceptions.† State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).† An exception to the rule against warrantless searches is a search incident to an arrest, in which police may conduct a full search of an arrestee without any additional justification.† State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (citing United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467 (1973), Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488 (1973)).† This exception applies only when the crime for which there is probable cause to arrest is a crime for which a custodial arrest is authorized.† State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998).†

Carbajal concedes that there was probable cause to issue a citation for misdemeanor fifth-degree assault in violation of Minn. Stat. ß 609.224, subd. 1(2) (2002), but argues that custodial arrest was not appropriate.† He cites Minn. R. Crim. P. 6.01, which provides for mandatory issuance of a citation for misdemeanors:

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 or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.

 

Id. (emphasis added).

The officer arrested Carbajal after being informed that the victim was visibly injured. †Without knowing the extent of the injury, the assault to the face could result in substantial bodily harm, creating a felony assault that permitted immediate arrest.† See Minn. Stat. ßß 609.223, subd. 1, 629.34, subd. (c)(2), (3) (2002).

Also, upon arriving at the scene, the police officer observed that about nine people had gathered, requiring de-escalation of the situation by arresting Carbajal and placing him in the squad car.† But when the officer called Carbajal over, Carbajal hesitated, shook his head, and exhibited body language that the officer perceived as aggressive.† Moreover, as the officer began to frisk Carbajal for weapons before placing him in the squad car, Carbajal took his hand off the hood of the squad car and reached toward his right front pants pocket.† Officer Krambeck grabbed Carbajalís right arm, placed him in handcuffs, and continued to search, finding 6.1 grams of a substance containing methamphetamine.† Based on the totality of these circumstances, the district court did not err in holding that it was reasonably necessary for the officer to arrest Carbajal.† Because we affirm the search incident to arrest, we do not address whether the search was a valid Terry frisk.† See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

 

II.

Carbajal argues that the district court abused its discretion in denying his motion for a downward dispositional departure.† The decision to depart from the sentencing guidelines rests within the district courtís discretion and will not be reversed absent a clear abuse of that discretion.† State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).† It is a rare case that warrants reversal of the refusal to depart.† State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).† Simply because arguments exist for departing downwardly does not mean the district court must depart; it is a discretionary decision.† Id.at 8.†

A district court should impose the presumptive sentence unless substantial and compelling circumstances warrant a departure. †Minn. Sent. Guidelines II.D. †ďSubstantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.Ē† State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).† A district court may use several mitigating factors to justify a decision to depart downward from the sentencing guidelines. †Id.; Minn. Sent. Guidelines II.D.2.a. †But a district court is not obligated to grant a dispositional departure just because a mitigating factor is present. †State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).

A dispositional departure in the form of probation may be imposed instead of an executed sentence if a defendant is particularly amenable to probation. †State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). †Amenability to probation depends on numerous factors, including a defendantís age, prior record, remorse, cooperation, attitude while in court, and support of friends or family. †Id.†Carbajal claims that the district court should have granted his motion for a dispositional departure because he is amenable to treatment, remorseful, 18 years old, a first-time felon, and has a supportive family.

††††††††††† In ordering the presumptive sentence the district court judge stated,

Iím going to find that there is no basis for a downward departure in your case and it has absolutely nothing to do with the INS hold.† Iím really concerned about the amount of methamphetamine that was found in [your] possession and so accordingly Iím going to adopt the guidelines sentence.

 

While the district court did not explicitly articulate factors against departure, the court carefully reviewed Carbajalís criminal record, including one prior misdemeanor conviction as an adult and six prior misdemeanors as a juvenile.† Additionally, Carbajalís presentence investigation report (PSI) indicated that his risk of reoffending was high and recommended the presumptive sentence. †

Finally, although Carbajal expressed remorse at sentencing and has a supportive family, these facts do not mandate a dispositional departure. †See Kindem, 313 N.W.2d at 8 (stating that where district court has some reasons for departure and other reasons for not doing so, district court does not abuse its discretion by making decision not to depart). The district court has a great deal of discretion in denying a dispositional downward departure, and there is evidence in the record to conclude that the district court did not abuse that discretion.†

Affirmed.