This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Brian C. Soules,




Filed August 30, 2005


Halbrooks, Judge



Nobles County District Court

File No. K9-03-800



Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Gordon L. Moore, III, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, #400, P.O. Box 337, Worthington, MN 56187 (for respondent)


John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of a second-degree controlled-substance offense, arguing that the seized methamphetamine should be suppressed because (1) he did not commit a misdemeanor offense in a police officer’s presence and (2) even if he did, the officer’s custodial arrest violated Minn. R. Crim. P. 6.01.  Because the search in question was performed incident to a lawful arrest, we affirm. 


            On November 17, 2003, appellant Brian Soules called the Worthington Police Department and reported that he had heard “screaming” from the residence of P.P.  After investigating the call, police officers determined that no such incident had occurred and warned appellant about “making unsubstantiated calls on 911.”  Before departing, one of the officers gave P.P. a squad car’s cell-phone number and instructed her to call directly if there were any further problems. 

            Prior to his shift, Officer William Bolt had been briefed about appellant’s 911 call from earlier in the day.  Later that evening, Officer Bolt received a “hysterical, very alarmed” call from P.P., who reported that appellant “was on her back step looking in her windows.”  Officer Bolt stayed on the phone with P.P. until he arrived at her residence.  Upon arrival, Officer Bolt “drew [his] service weapon and [] flash light and walked towards the back of the house” because he considered appellant to be “a threat.”  Bolt explained why he feared for his own safety:

[Appellant] had made 911 calls to the [p]olice [d]epartment describing shooting incidents that had not taken place.  [Appellant] had answered his door armed with a bat and had been reported to other officers [for] carrying weapons.


. . . .


Based upon the totality of my experience with [appellant], and the information given to me [earlier in the day] by senior officers, I felt that [appellant] was unstable.


Upon entering P.P.’s backyard, Officer Bolt announced his presence and saw appellant approaching from “an alcove adjacent to [P.P.’s] kitchen window.”  Because he considered appellant to be dangerous, Officer Bolt ordered appellant onto the ground and asked him to put his hands on his head.  Bolt testified that he arrested appellant for disorderly conduct because it was the police department’s procedure to arrest, rather than issue a citation for, a disorderly conduct violation.[1]  Bolt asked appellant whether he was armed and appellant responded that he “might have a knife.”  Officer Bolt then searched appellant and discovered two pieces of tin foil.  Bolt testified that appellant next claimed that “the stuff” that Bolt was about to find in his pocket did not belong to appellant.  Bolt ultimately discovered “a medium size[d] rock of a white, powdery substance,” which later tested positive as methamphetamine.

            The state charged appellant with second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subds. 2(1), 3(a) (2002), and harassment/stalking, in violation of Minn. Stat. § 609.749, subd. 2(2) (2002).  Appellant moved to suppress the seized methamphetamine and dismiss the harassment/stalking charge.  The district court granted appellant’s motion to dismiss, but denied his motion to suppress.  The court characterized appellant’s conduct as interference with privacy and found that appellant was “committing an offense in the presence of” Officer Bolt.  Because interference with privacy is an offense for which appellant could have lawfully been taken into custody, the district court held that the search was appropriate.  After the omnibus hearing, the state amended the complaint to add an interference-with-privacy charge, a violation of Minn. Stat. § 609.746, subd. 1(a) (2002).  Appellant waived his right to a jury trial and entered into a stipulation pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).  The district court found appellant guilty of the charged offense and sentenced him to the presumptive 48 months.  Execution of the sentence was stayed pending appeal.  After appellant was found to have violated the terms of his conditions of release, the district court executed his sentence.    


            Appellant argues that Officer Bolt did not have authority to arrest him because (1) appellant did not commit a misdemeanor offense in the officer’s presence and (2) the custodial arrest violated Minn. R. Crim. P. 6.01.  “[W]hen reviewing a pre-trial order [denying suppression] where the facts are not in dispute and the [district] court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

The federal and state constitutions prohibit unreasonable searches and seizures of “persons, houses, papers and effects.”  U.S. Const. Amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are generally unreasonable, subject only to a few narrow exceptions.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993).  One exception is a search incident to an arrest, when police may conduct a full search of an arrestee without any additional justification.  United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973).  But a search incident to arrest is valid only if the crime committed is one for which a custodial arrest is authorized.  State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998). 

A.        Presence Requirement

A police officer may arrest an individual without a warrant when a public offense, including a misdemeanor, has been committed or attempted in the officer’s presence.  Minn. Stat. § 629.34, subd. 1(c)(1) (2002); Smith v. Hubbard, 253 Minn. 215, 224, 91 N.W.2d 756, 764 (1958) (including misdemeanors in definition of public offense).  We have previously explained that “[t]he purpose of the presence requirement is to prevent warrantless misdemeanor arrests based on information from third parties.”  State v. Jensen, 351 N.W.2d 29, 32 (Minn. App. 1984).  Notably, a police officer “may not act on his own appraisal of the reasonableness of the information” received from a third party.  Id.(quotation omitted).  But here, the district court found that appellant’s “continued presence on the deck of [P.P.’s] house could well provide the basis for an ‘interference with privacy’ charge.” 

A person is guilty of a misdemeanor for interference with privacy if he or she:

                        (1)       enters upon another’s property;


(2)       surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another; and


(3)       does so with intent to intrude upon or interfere with the privacy of a member of the household.


Minn. Stat. § 609.746, subd. 1(a) (2002).  The record reflects that Officer Bolt observed appellant on P.P.’s deck and testified that appellant was located at an “alcove adjacent to her kitchen window, and [that] he was in [a] little nook area.”  While the record is unclear as to whether Bolt personally saw appellant gaze, stare, or peep into P.P.’s window, Bolt’s testimony that he observed appellant in an alcove adjacent to P.P.’s window adequately supports the district court’s finding that appellant had gazed into her window, thereby reasonably satisfying the presence requirement.  Accordingly, we conclude that the district court did not err by concluding that appellant had attempted to interfere with P.P.’s privacy in Officer Bolt’s presence. 

B.        Misdemeanor Arrest

While a police officer may ordinarily not arrest a person without a warrant for a misdemeanor, custodial arrests for misdemeanors are permitted under certain circumstances.  Varnado, 582 N.W.2d at 892.  For example, 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. 


Id.(emphasis added).  Thus, a police officer is specifically authorized to arrest a person for a misdemeanor if the arrest is “necessary to prevent bodily harm to . . . another.”  Id. 

            The facts make clear that, based on appellant’s previous interactions with law-enforcement officers in the community and coupled with P.P.’s “terrified” manner, it was reasonable for Officer Bolt to arrest appellant, based on his own personal belief that appellant was “a threat” and “dangerous.”  Officer Bolt’s conclusion, grounded in the totality of the circumstances before him, justified the misdemeanor arrest in order to “prevent bodily harm to . . . another,” which would include himself as well as others in the community, such as P.P.  Minn. R. Crim. P. 6.01, subd. 1(1)(a).  At this juncture, Officer Bolt had authority to search appellant, without a warrant, incident to a lawful arrest.  See State v. Martin, 253 N.W.2d 404, 405 (Minn. 1977) (explaining that if it is appropriate to make a custodial arrest of a defendant, then the search of defendant’s person is also appropriate); see also Varnado, 582 N.W.2d at 892 (“[I]t is reasonable for [an] arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or  . . . escape [and also] to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”) (emphasis and third variation added) (quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)).  And it was only when appellant admitted that he “might” have a knife, that Officer Bolt actually searched appellant.  Because the search was performed incident to a lawful arrest, our analysis need not go any further.  Accordingly, the district court did not err by denying appellant’s motion to suppress the methamphetamine seized incident to a lawful arrest. 

C.        Police Department Procedure to Arrest for Disorderly Conduct

Finally, Officer Bolt testified that it was the police department’s standard procedure that “everyone cited for disorderly [conduct] is placed under arrest and booked into the [county] jail and then released.”[2]  But disorderly conduct is a misdemeanor offense.  See Minn. Stat. § 609.72, subd. 1 (2004).  As such, police officers are not to arrest individuals for disorderly conduct, unless (1) 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 (2) there is a substantial likelihood that the accused will fail to respond to a citation.  Minn. R. Crim. P. 6.01, subd. 1(1)(a).  Had Officer Bolt simply arrested appellant without reasonable concern for the bodily safety of himself or others, then the arrest would have been improper under rule 6.01.  But here, the circumstances suggest otherwise.  Officer Bolt specifically testified that he arrested appellant because he “was by [him]self” at the time and that “based upon previous encounters with [appellant, he] considered him to be dangerous.”  As a result, under the bodily harm exception to Minn. R. Crim. P. 6.01, subd. 1(1)(a), Officer Bolt was justified in placing appellant under arrest.  We, therefore, conclude that the narcotics evidence recovered from the subsequent search need not be suppressed. 


[1] Officer Bolt also testified that he arrested appellant for disorderly conduct because P.P. “was terrified, alarmed, [and] extremely upset while [he] was enroute and stopping at [her] residence.”

[2] Even if Officer Bolt arrested appellant based on an improper police-department procedure, we evaluate the validity of an arrest based on an objective standard.  See, e.g., State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992) (an appellate court will not invalidate an arrest “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”).