This opinion will be unpublished and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
Kevin Watson Hoidale,
Filed September 13, 2005
Toussaint, Chief Judge
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stefan A. Tolin, 540
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from his conviction of possession of pornography involving a minor, appellant Kevin Watson Hoidale challenges the district court’s pretrial order denying his motion to suppress the evidence against him. We affirm.
On July 14, 2003, Minneapolis police responding to a domestic-assault call entered appellant’s residence without a search warrant and observed drug paraphernalia, based on which they obtained a search warrant. While executing the warrant, the police observed pornographic contraband and obtained a second warrant. After the police executed the second warrant, appellant was charged with three counts of felony possession of pornography involving a minor, in violation of Minn. Stat. § 617.247, subd. 4(a) (2002).
Appellant moved to suppress the evidence against him as obtained consequent to an illegal warrantless entry. At the Rasmussen hearing, Minneapolis Police officer Mark Beaupre testified that on July 14, 2003, he responded to a domestic-assault call at appellant’s residence and arrived to discover that appellant was already detained in another police car. Two women, who identified themselves to Beaupre as M.M.N. and C.F., were talking to another officer in front of the house. Both women told Beaupre that they resided in appellant’s home. M.M.N., who was wearing only a bra and shorts, stated that appellant had assaulted her on the deck and in the living room.
Beaupre testified that because M.M.N. appeared very uncomfortable about discussing the incident in front of C.F., he asked her if she would prefer to go inside the house to show him where the assault took place. Beaupre testified that M.M.N. told him to come in the house with her. When Beaupre entered the living room, he observed the drug paraphernalia that ultimately led to both warrants and the current charges. Appellant testified that M.M.N. never resided with him and did not have authority to consent to a search.
After the district court denied appellant’s motion to suppress, the parties submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the court found appellant guilty of two charged counts. This appeal follows.
When reviewing pretrial orders on
motions to suppress evidence, an appellate court may review the facts
independently to 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 argues that M.M.N.’s
statement to officer Beaupre that she resided in appellant’s house was
inadmissible hearsay that Beaupre was prohibited from repeating in his
testimony. This argument lacks merit for
at least three reasons. First, it is
unsupported by legal citation, an omission that generally precludes
consideration by this court. See Minn. R. Civ. App. P. 128.02, subd.
1(d) (providing that appellant’s argument must be accompanied by citations to
relevant authority). Second,
testimony was not hearsay because it was offered not to show the truth of the
matter asserted – that M.M.N. lived at appellant’s house – but to show that M.M.N.’s
statement contributed to Beaupre’s belief that M.M.N. was authorized to consent
to the search. “If a statement is
offered to show something other than the truth of the matter asserted, . . . it
is not hearsay.” State v. Moua, 678 N.W.2d 29, 37 (
Appellant argues that the
district court erred by concluding that M.M.N. gave effective consent to Beaupre’s
entry into appellant’s house. The
A third party has apparent
authority to consent to a search when, “under an objective standard, an officer
reasonably believes the third party has authority over the premises and could
give consent to enter.”
Beaupre testified that he believed M.M.N.’s statements to him that she lived at appellant’s house and slept on the couch. The district court specifically found Beaupre’s testimony credible. The district court also found that when Beaupre arrived at the house, M.M.N. was partly undressed and that the other woman present told Beaupre that M.M.N. was appellant’s girlfriend.
Where the consent involves a guest actually present inside the dwelling who merely invites the police into an area where visitors would normally be received, there is sound authority that, at least when the guest is more than a casual visitor and had the run of the house, his lesser interest in the premises is sufficient to render that limited consent effective.
Appellant argues that Beaupre
failed to sufficiently verify that M.M.N. was telling the truth about her
identity, her relationship with appellant, and the nature of her presence in
his home before concluding she was authorized to consent to his entry. But the issue is not whether Beaupre was
correct to believe M.M.N.’s statements and act accordingly, but whether his
belief that her statements were true was reasonable: “in order to satisfy the ‘reasonableness’
requirement of the Fourth Amendment, what is generally demanded of the many
factual determinations that must regularly be made by agents of the government
. . . is not that they always be correct, but that they always be reasonable.”
Finally, appellant’s argument that the district court’s order denying his motion relied on evidence outside the Rasmussen record is not supported by specific reference to the court’s order or any explanation as to which of the district court’s findings are based upon evidence outside the record. The district court’s findings are supported throughout by reference to testimony presented at the Rasmussen hearing.
Under the totality of the circumstances here, Beaupre reasonably believed that M.M.N. was authorized to consent to his entry into the home. The district court therefore did not err in concluding that M.M.N. had apparent authority to consent to the search and in denying appellant’s motion.