This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rodney A. Miller,
Filed September 4, 2007
Toussaint, Chief Judge
Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Rodney A. Miller challenges his conviction of fifth-degree controlled substance crime—possession and the order denying his postconviction petition. Because we see no error in the district court’s determinations that the evidence was properly admitted, that appellant’s confession was not involuntary, and that appellant was not denied the effective assistance or counsel, we affirm them. Because appellant’s waiver of his right to a jury trial violated Minn. R. Crim. P. 26.01, subd. 3, we reverse and remand.
D E C I S I O N
1. Denial of motion to suppress
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 (
The district court found that “Agents were outside the curtilage of [appellant’s] home when they viewed and seized [marijuana] plant samples on July 23, 2004” and concluded that “The information validly obtained on July 23, 2004, did not taint or otherwise invalidate the search warrant [for appellant’s property] executed on August 11, 2004.” Appellant’s motion to suppress the evidence obtained on July 23, 2004, was denied. He challenges the finding that the agents were outside the curtilage.
“[C]urtilage is generally the area so
immediately and intimately connected to the home that within it, a resident’s
reasonable expectation of privacy should be respected.” Garza
v. State, 632 N.W.2d 633, 639 (
Both the application for the search warrant and the agents’ testimony support the finding that they were not in appellant’s curtilage. The application stated that: (1) on July 15, 2004, an agent heard from a confidential informant that appellant was growing cannabis; (2) the agent drove past appellant’s residence and “observed . . . purported cannabis plants”; (3) on July 20, 2004, the agent received information from a concerned citizen who “believes that [appellant] is involved in the drug activity in the . . . area”; (4) on July 23, 2004, the agent “searched the surrounding wooded area around [appellant’s] residence . . . located and observed several purported cannabis plants growing on the edge of the yard . . . photographed what cannabis plants he could see . . . further located a single cannabis plant growing off the curtilage in the wooded area [and] took a sample of the cannabis plant that was taken as evidence”; and (6) the agent “observed the cannabis plants growing in what appeared to be a garden-type setting with garden tools lying around the plants.”
At the hearing on the motion to suppress, the agent testified that “we went up to the residence and did an off curtilage search. . . . [A]t no point did we step onto the yard part.” When asked, “From the roadway would you be able to see if marijuana was planted,” the agent answered, “With using binoculars, yes.” He stated that the plant from which he took a sample was growing outside the yard in “the wooded area” and that the plants were not covered in any way but were “out in the open.” On cross- examination, he testified: “This area where we took the sample of marijuana was in the weed area where there was weeds and trees” and that he did not go up to the other marijuana plants he could see.
The other agent involved testified that “while in the tree line we discovered one marijuana plant that had been planted in the brush, took a sample off that, then proceeded back out to our pick up point.” When asked if there was an attempt to hide the plants, he said the marijuana plants “outgrew the foliage that was planted in front of them.” He also testified: “We were still in the trees and couldn’t quite see it yet before we could start smelling the marijuana.” Both officers testified that there were no “private property” or “no trespassing” signs anywhere.
The district court did not err in finding that the agents did not obtain the marijuana sample that lead to the search warrant from the curtilage of appellant’s house, in concluding that the search warrant was valid, and in denying appellant’s motion to suppress the evidence.
In reviewing the
denial of a motion to suppress a confession on the ground that it was
involuntary, this court’s duty is “to independently determine, on the basis of
all factual findings that are not clearly erroneous, whether or not the
confession was voluntary.” State v. Thaggard, 527 N.W.2d 804, 807 (
The transcript of the police interview of appellant reads in relevant part:
[Officer]: I do need to read you your Miranda Warning. . . . Just so we understand everything, ok . . .Today’s date is 8-11-2004, time is approximately 7:00 p.m. . . . [Y]ou have the right to remain silent, anything you say can and will be used against you in the court of law. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand those rights . . . ?
[Appellant]: Yes I do.
[Officer]: Ok and uh there’s some things we need to talk to you about, uh, about your residence. Are you willing to talk to us with those rights in mind?
[Appellant]: Uh no.
[Officer]: This will conclude taped statement time is approximately 7:01 p.m.
[Appellant]: I’ve been honest all my life, I’ll just stay that way but I can’t uh I can’t say anything that would (inaudible).
[Officer]: I, I don’t want anything that can help me, I want something that can help you.
[Appellant]: Well what do you want to know that could have possibly help me?
[Officer]: What’s that? If, if.
[Appellant]: What do you want to know that could possibly help me?
[Officer]: Well, well you know you just told me you’re a marijuana smoker correct?
[Officer]: But before I ask any questions . . . About what’s going on and where you live and why I’m talking to you I need to make sure that you understand those rights I’ve explained to you.
[Appellant]: OK as long as you’re not gonna ask me about some of my neighbors.
[Officer]: No, I won’t.
[Appellant]: I’ll talk to you.
[Officer]: Ok, great and before, before I, I did just shut the tape off for a brief second, the time is approximately 7:01 still, did I threaten you at all?
[Officer]: Ok did I make any promises to you?
[Officer]: Ok did I tell you, you had to talk to us, and if, if you didn’t talk to us I was going to harm you in any way?
[Officer]: Um, what I, what I said to you was is this corrected, tell me if [t]his is incorrect, I, I turned the tape off and I told you it would be in your best interest to talk to us, is that all that I said to you?
The transcript shows that appellant first said he would not answer questions, then changed his mind and said he would answer questions that did not pertain to his neighbors.
reliance on Michigan v. Mosley, 423
The postconviction court did not err in determining that appellant’s confession was voluntary.
3. Ineffective assistance of counsel
postconviction court also determined that appellant was not denied effective
assistance of counsel. This
determination is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (
Our conclusion that appellant’s confession was voluntary defeats appellant’s argument that his attorney’s failure to move to suppress an involuntary confession was representation below an objective standard of reasonableness. In any event, appellant cannot show a reasonable probability that the outcome would have been different. If appellant’s confession had been suppressed as involuntary, the district court would still have had sufficient evidence of marijuana on his property to convict him of fifth-degree controlled substance crime—possession. It is not reasonably probable that suppressing appellant’s confession would have resulted in a different outcome.
4. Waiver of right to jury trial
As a threshold
matter, we note that this issue is not properly before us because appellant
raises it for the first time on appeal. This court does not generally consider
issues not raised to and considered by the district court. Roby v.
State, 547 N.W.2d 354, 357 (
the denial of his motion to suppress the evidence, appellant agreed to proceed
under State v. Lothenbach, 296 N.W.2d
By agreement of the defendant and the prosecuting attorney, [a case] . . . may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record.
A defendant in a stipulated-facts
trial must personally waive the rights listed in Minn. R. Crim. P. 26.01, subd.
v. Halseth, 653 N.W.2d 782, 786 (
Affirmed in part, reversed in part, and remanded.
 Appellant relies on Kyles v. Whitley, 514
Appellant moved first to stay his appeal, then moved to reinstate it. Our order granting the motion to reinstate said appellant could “address issues raised and decided in the postconviction petition and order as well as challenges to the proceedings preceding appellant’s conviction and to the sentence.” But this issue was not submitted to the postconviction court: appellant’s petition for postconviction relief raises only the issues of whether his confession was voluntary and whether he was denied the effective assistance of counsel. Nor was the issue raised in the original appeal, which challenged only the denial of appellant’s pretrial motion to suppress the evidence.
 Halseth did not involve a Lothenbach proceeding, but we see no reason to assume that a Lothenbach proceeding would have less-stringent waiver requirements than other stipulated-facts trials.