This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dirk Alan Hartwig,
Filed November 14, 2006
Affirmed; motion granted
Wabasha County District Court
File No. K4-04-203
Mike Hatch, Attorney General, Manuel J. Cervantes, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Nordstrom, Wabasha County Attorney, Wabasha County Courthouse, 625 Jefferson Avenue, Wabasha, MN 55981 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
Appellant Dirk Alan Hartwig challenges his conviction and sentence for first- and second-degree controlled substance offenses for manufacturing and possession of methamphetamine, arguing that the district court erred by refusing to suppress evidence found during a warrantless search and by treating the convictions as two separate behavioral incidents for sentencing purposes.
Because exigent circumstances existed to permit a warrantless search, we affirm the district court’s decision refusing to suppress the evidence. Because the offenses of which appellant was convicted were not part of a continuous and uninterrupted course of conduct or motivated by a single criminal objective, we affirm appellant’s sentence.
facts are not in dispute, the district court’s suppression decision is a
question of law; the appellate court independently reviews the facts and makes
a de novo determination of whether the evidence should be suppressed. State
v. Othoudt, 482 N.W.2d 218, 221 (
either consent or probable cause combined with exigent circumstances,
warrantless searches of a residence are per se unreasonable under the United
States and Minnesota Constitutions.
two tests to establish exigent circumstances:
(1) the single factor test; and (2) the totality-of-the-circumstances
test. State v. Gray, 456 N.W.2d 251, 256 (
The totality-of-the-circumstances test involves application of the following factors: (1) whether a grave or violent offense is involved; (2) whether the suspect is reasonably believed to be armed; (3) whether there is strong probable cause; (4) whether police have strong reason to believe the suspect is on the premises; (5) whether it is likely the suspect will escape if not immediately apprehended; and (6) whether police made a peaceable entry. Id. (citing Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)).
record here supports four of the Dorman
factors: (1) manufacturing methamphetamine is considered a grave offense; (2)
strong evidence connected appellant to the offense, based on the information
deputies received from the confidential reliable informant (CRI) that “Dirk was
cooking meth” and the strong odor associated with meth manufacture that
deputies smelled on the premises; (3) deputies had good reason to believe
appellant was on the premises, because of co-defendant Julie Miller’s evasive
conduct, the CRI’s information, the noises from the appellant’s trailer, and
the odor; and (4) deputies made peaceable entry to the residence. Not all of the Dorman factors need be present in order to justify a warrantless
search. State v. Johnson, 689 N.W.2d 247, 252 (
district court must also consider the time it would take to obtain a warrant
and whether the arrest was planned in advance or developed in the “field.” In re
Welfare of D.A.G., 484 N.W.2d 787, 791 (
Based on our review of the record, we conclude that the district court did not err by refusing to suppress evidence recovered after a warrantless search made under exigent circumstances.
appellant was charged with manufacturing methamphetamine, but he was also
charged with second-degree possession of more than six grams, because deputies
found a bag of methamphetamine within his reach. Possession of methamphetamine is not
necessarily a lesser included offense of its manufacture. State
v. Carr, 692 N.W.2d 98, 102 (
Strictly speaking, the two offenses here are not tied by time or a single criminal objective. Appellant was in the process of manufacturing methamphetamine when the search occurred, but he already possessed usable methamphetamine unrelated to the methamphetamine that he was manufacturing. Although appellant argues that the finished methamphetamine could well be related to the manufacturing process, courts are cautioned against interpreting the criminal objective too broadly. See Soto, 562 N.W.2d at 304.
The record supports the court’s determination that the offenses were not motivated by a single criminal objective or part of an uninterrupted course of conduct. The district court therefore did not err by sentencing appellant for both convictions.
Appellant’s Pro Se Issues
pro se supplemental brief raises several factual claims that he asserts would
change the result of the trial; these factual claims were not raised at
trial. This court may not consider evidence
outside the record. State v. Breaux, 620 N.W.2d 326, 334 (
Motion to Strike
Appellant moved to strike portions of the state’s brief that cite trial testimony in support of the district court’s omnibus ruling refusing to suppress evidence recovered during the warrantless search of appellant’s trailer. The district court based its omnibus ruling solely on police reports and related documentation; no testimony was taken at the omnibus hearing. We therefore grant appellant’s motion to strike those parts of the state’s brief that rely on trial testimony, as being beyond the scope of the evidence considered by the district court in making its suppression decision.
Affirmed; motion granted.