This opinion will be unpublished and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
Maximiano Becerra Montanez,
Stearns County District Court
File No. K604229
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 448
Administration Center, 705 Courthouse Square, St. Cloud,
John M. Stuart, Minnesota Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Willis, 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 first-degree controlled substance crime, arguing that the district court erred by failing to suppress evidence obtained in an illegal search of a bag in his car. Because the district court did not err in concluding that the evidence would have inevitably been discovered in an inventory search of appellant’s vehicle, we affirm.
Zirbes found the bag and looked inside for weapons. He testified that, “[s]itting right on top of the bag was a little smaller than a tennis ball size of white powdery substance,” that appeared to be methamphetamine. Zirbes left the bag in the vehicle and then asked appellant if “everything in the vehicle belonged to him.” Appellant replied “Yes.” Zirbes advised appellant that he was under arrest for possession of a controlled substance. Zirbes did not ask appellant for permission to search his vehicle and never asked appellant to sign a consent form after the search.
Appellant was charged by complaint with controlled-substance crime in the first degree pursuant to Minn. Stat. § 152.021, subds. 2(1) and 3(a) (2002). Appellant moved to suppress all of the evidence seized and all derivative evidence, including his statements. After a hearing, the district court granted appellant’s motion to suppress his statements and denied his motion to suppress the drugs found in the vehicle, reasoning that the drugs would inevitably have been discovered during an inventory search of the vehicle. A jury found appellant guilty of first-degree controlled substance crime. Appellant was given the presumptive sentence of 86 months. 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 (
searches are generally per se unreasonable and prohibited by the
determining whether an inventory search is reasonable, the threshold inquiry
involves the propriety of impounding the vehicle because the act of impoundment
gives rise to the need for and justification of the inventory search. Goodrich,
256 N.W.2d at 510 (
Appellant argues that (1) the search of the bag in his vehicle was not a valid inventory search; (2) impoundment of his vehicle was improper, unnecessary, and not conducted under an established policy; and (3) the district court erred when it found that the drugs would have been inevitably discovered in an inventory search and denied his motion to suppress.
“The purpose of the inevitable discovery rule is to block
setting aside convictions that would have been obtained without police
misconduct.” Nix v. Williams, 467
In this case, the police department’s written towing policy leaves the decision of whether to have a vehicle towed to individual officers. The district court credited Zirbes’s testimony that among all officers there is an understanding as to which vehicles will be towed, and unattended vehicles are not left on the roadway even when there is no public-safety issue. Zirbes testified that when a vehicle is impounded he inventories the interior of the vehicle, glove box, trunk, and all containers in the vehicle to prevent allegations of missing items in the event the vehicle is broken into. Zirbes testified that it was his understanding that if appellant had offered to have a valid driver pick up the vehicle, Zirbes would have been obligated to help appellant make the arrangements in a timely manner, but appellant did not make such an offer.
The district court concluded that the impoundment was proper, the bag would have been legally located within the vehicle, and the methamphetamine would have been discovered during the inevitable inventory search. Because the evidence supports the finding that the impoundment was consistent with the Melrose Police Department’s policy, and the policy is designed to protect the property interests of the driver as well as to limit the department’s liability, we conclude that the district court did not err.
Appellant’s insistence that Zirbes’s search of the bag in his vehicle was not pursuant to an inventory search misses the point that the district court agreed with him on this issue. The district court specifically found that Zirbes did not have consent to retrieve or search items from appellant’s vehicle and did not justify Zirbes’s actions on any other basis. Because Zirbes did not have consent to remove the bag from the vehicle, it should have remained in the vehicle. The district court’s decision is based on the valid conclusion that if Zirbes had not searched the bag as he did, he, or another officer, would inevitably have searched the bag and discovered the drugs in connection with an inventory due to impoundment of the vehicle.
For the first time on appeal, appellant argues that
Zirbes failed to satisfy Minn. Stat. § 169.041, subd. 2 (2001), which requires
a written towing report and a four-hour waiting period before towing. Generally, a reviewing court “will not decide
issues which were not raised before the district court.” Roby v.
State, 547 N.W.2d 354, 357 (
Appellant also argues for the first time on appeal that Zirbes unlawfully expanded the scope of the stop when he pat-searched appellant. Although appellant asserts that the scope of his argument in the district court covered this issue, the record does not support his assertion. In the district court, appellant challenged the legality of the stop, the search of the vehicle, and questioning that occurred before police read appellant his Miranda rights. We decline to address the legality of the pat-down because appellant did not raise this issue in the district court. But we note that appellant has failed to demonstrate how this claim had any effect on the outcome of the trial. Appellant was convicted for possessing methamphetamine which was located in his vehicle. There is no reason to believe that the prosecutor’s one reference to the cash discovered in appellant’s wallet during the pat-search affected the verdict.