This opinion will be unpublished and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
Ramsey County District Court
File No. KX033390
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan E. Gaertner, Ramsey County Attorney, Mark Nathan
Lystig, Assistant County Attorney, Ramsey County Government Center West,
John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
Appellant Enrico Antonio Flemino challenges his conviction of a controlled-substance offense, arguing that the district court erred by denying his motion to suppress evidence obtained from a pat search incident to a traffic stop. We affirm.
Suchy then saw appellant leave the
residence and drive away in the van.
Suchy recognized appellant and knew his driver’s license was revoked and
that he was scheduled to appear in
The van was relocated in a business parking lot. Leonard and Henriksen blocked appellant’s exit with their squad car and approached the van. They saw appellant moving as if he was trying to hide or retrieve something. Henriksen yelled at appellant to put his hands on the wheel, but appellant continued to move about the van. Appellant briefly put his hands on the wheel, then took them off of the wheel and continued moving around the van. The deputies loudly instructed appellant to get out of the van. Appellant hesitated so the deputies opened the driver’s door, assisted appellant out of the van by pulling his shoulder and immediately handcuffed him. Leonard tried to escort appellant to the squad car, but appellant stood with his legs together and hopped, as if trying to keep his legs together. Leonard believed appellant was hiding something between his legs and ordered appellant to spread his legs. Appellant did not comply, and Leonard wrestled him to the ground where he continued to resist. Leonard heard Henriksen say, “That’s what you were hiding” and looked up to see Henriksen holding a large plastic bag filled with a white substance. No weapons were found on appellant, but a large amount of cash was found. Suchy arrived at the scene, and appellant was placed in a squad car and taken to the hospital because he complained of a sore wrist.
Appellant testified that he was going to get the van washed and had a large amount of cash because he had just won $6,000 at a casino; he noticed Suchy and recognized him as law enforcement despite the unmarked car because he saw Suchy’s badge on his coat; appellant drove onto I-35E and saw a marked squad enter the freeway behind him; and he knew they were going to stop him because he saw the squad make a U-turn to follow him. Appellant testified that he left the freeway so they could pull him over and denied trying to evade the deputies. He said he pulled into a restaurant parking lot where he thought there would be people who could see if the deputies tried to hurt him. Appellant testified that he had been roughed up by police in the past. Appellant said the deputies approached the van with their guns drawn and ordered him to put his hands up, not on the steering wheel. One deputy grabbed him and “snatched” him out of the van without asking him to get out. According to appellant, we was slammed up against the side of the van, pat searched, and cuffed while one officer had a gun at his back. Appellant testified that the officers took $5,700 from him but only reported that $2,700 was recovered. Appellant testified that he was ordered to take his shoes off and was accused of resisting when he was not. Appellant testified that he only resisted after a deputy ran his finger along his buttocks to check for drugs and did not find anything. He said the deputy slammed him to the ground, ripped off his shoes, swore at him, and used such force that appellant blacked out momentarily. Appellant denied that the deputies found drugs on him and testified that they probably planted the drugs on him. Appellant testified that he was told at the hospital that he had a hairline fracture of his shoulder. Medical records submitted to the court indicated that appellant had several contusions on his face, hand, and shoulder and a possible slight shoulder separation.
The district court found the deputies more credible than appellant and denied appellant’s motion to suppress evidence seized from appellant. The district court concluded that the stop was valid, the officers could arrest appellant for driving after revocation, search him incident to the arrest, and perform an inventory search of the van before having it towed. A jury convicted appellant of a controlled-substance crime, he was sentenced, and this appeal followed.
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. Harris, 590 N.W.2d 90, 98 (
Appellant concedes that the officers had a valid basis to stop him for driving after revocation, but argues that because the traffic stop was clearly a pretext to stop the van, the stop should be ruled invalid. Appellant also asserts that the district court erred in holding that appellant could be arrested for driving after revocation.
I. Search incident to arrest
Police officers are authorized to conduct a warrantless
search of a lawfully arrested individual and areas within his reach to secure
evidence of crime or discover weapons that may be used to harm the
Minn. R. Crim P. 6.01, subd. 1(1) (a), provides:
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 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. The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention.
Appellant argues that
because the deputies had no reason to suspect he would cause bodily harm or
that he would fail to respond to a citation, his custodial arrest was invalid
and any search incident to the arrest was unlawful. We disagree.
The district court found the deputies’ testimony credible, and the credibility
of witnesses and the weight to be given their testimony are determinations to
be made by the factfinder.
Additionally, when appellant resisted arrest and appeared
to be concealing something, the officers had another basis for arrest and search
incident to arrest. State v. Olson, 634 N.W.2d 224, 229-30 (Minn. App. 2001)
(reiterating that resisting arrest supplies probable cause for arrest, and,
even if prompted by illegal police conduct, is an intervening circumstance
sufficient to purge the illegality of its primary taint), review denied (Minn. Dec. 11, 2001). Appellant’s arguments based on State v. Askerooth, 681 N.W.2d 353 (
II. License violation as pretext for stop
The United States Supreme Court and the Minnesota Supreme Court have held that a stop supported by objective probable cause to believe a violation of law has been committed is legally valid regardless of improper subjective motivations of an individual police officer and without regard to the severity of the traffic violation. See, e.g., Whren v. United States, 517 U.S. 806, 814-19116 S. Ct. 1769, 1774-77 (1996) (holding that a stop for which an objective basis exists is valid under the Fourth Amendment, and the officer’s subjective intentions and whether the officer’s actions “deviated materially from the usual police practices” are irrelevant); State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (stating in dictum that “if there is an objective legal basis for an arrest or search, the arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.”). In this case, appellant concedes that the stop was based on probable cause, and Suchy’s candid admission that he wanted to stop the van for other reasons does not invalidate the stop.
III. Appellant’s pro se arguments
a. Evidentiary rulings
In his pro se brief, appellant argues that the district
court “erred by allowing false reports and hearsay from law enforcement
officers” and by violating “chain of custody rules by allowing evidence that
wasn’t photographed at the scene . . . to be introduced at trial. . . ” Appellant merely argues that there were
inconsistencies between the police reports and the testimony of the deputies at
trial. But the police reports were not
introduced into evidence, and counsel for appellant cross-examined the officers
about the inconsistencies. Appellant
does not explain his chain-of-custody claim.
“Trial court decisions on the admission of evidence are reviewed under
an abuse of discretion standard that is deferential to the trial court. Absent a clear abuse of discretion, the trial
court’s evidentiary ruling will stand.” State v. Williams, 586 N.W.2d 123, 126 (
b. Ineffective assistance of counsel
To prove ineffective assistance of counsel, appellant is
required to show that his attorney’s representation “fell below an objective
standard of reasonableness, and that a reasonable probability exists that the
outcome would have been different but for counsel’s errors.” Boitnott
v. State, 631 N.W.2d 362, 370 (