This opinion will be unpublished and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
State of Minnesota,
Peter Edward Lee,
Filed December 4, 2007
Lake County District Court
File No. 39-CR-06-801
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Russell H. Conrow, Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN 55616 (for appellant)
Reid M. Goldetsky, Phillip S. Resnick, 527 Marquette Avenue South, Suite 1925, Minneapolis, MN 55402 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Crippen, Judge.
Appellant, by its prosecutor, argues that the district court erroneously determined that police officers failed to obtain valid consent to search from respondent Peter Edward Lee. Because the record confirms the court’s determination that the alleged consent was involuntary, we affirm.
Police personnel responded to an emergency call about a naked and unruly woman at a campsite in Tettegouche State Park. When they arrived at the park, two deputy sheriffs noticed the campsite was in chaos: the tent was askew, and there were women’s undergarments lying on the ground, along with a pipe, or “bong,” which is typically used to smoke marijuana. En route to the campsite, a third deputy spotted a naked woman on the side of Highway 61, accompanied by respondent and Justin Hage, who were trying to restrain her. The deputy approached the group and tried to get some information. The woman was screaming incoherently. The deputy asked the men what had caused her erratic behavior, and they replied, after more questions from the deputy, that she had been smoking marijuana. They told the deputy that the marijuana was in the woman’s purse and gave him the purse.
The other two deputies arrived at the highway scene, followed by more officers and a park manager. Eventually, there were a total of seven uniformed police officers. The woman was taken to a mental health facility in Duluth. The deputies questioned respondent and Hage, learning that they had camped in the park with the woman the previous evening. When asked, both men denied that they had smoked marijuana; the deputies testified that both men seemed to be coherent and did not seem to be under the influence of any illegal substance.
On the request of the deputies, respondent and Hage agreed to return to the campsite with the officers. The deputies drove the men to the campsite in separate police cars, although the campsite was only a quarter of a mile from the scene on Highway 61. During the ride, respondent was not read his Miranda rights, nor was he told he was under arrest. Deputy DeRosier, one of the first two responding officers, vaguely recalled talking again about marijuana during the trip but said he wasn’t sure about this.
At the campsite, responding to further questions, respondent and Hage denied that they owned the bong. Hage said he owned the tent and a bag visible inside the tent, which contained belongings of all three of the campers. After the men agreed to a search of their “belongings,” the deputies searched the bag in the tent and found in it a pipe commonly used to smoke marijuana; the men asserted that their female companion owned the pipe. Upon finding the pipe, the search of the bag was interrupted with a pat search of both men for weapons, but none were found. Respondent removed a bag slung on his shoulder and placed it on a picnic table, and he was then asked if this bag could be searched. Respondent did not object to this further search, and incriminating drug evidence was found in the bag. Respondent’s arrest was then announced.
Respondent was charged with two counts of fifth-degree possession of a controlled substance and one count of possession of a small amount of marijuana. The district court held a contested omnibus hearing, at which the three deputies testified. The court granted respondent’s motion to suppress evidence obtained as a result of the search and seizure from his bag, finding the consent to be involuntary and, thus, no basis for an arrest. The three charges were dismissed.
Warrantless searches are per se unreasonable under the United States and Minnesota Constitutions. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). Absent either consent or probable cause combined with exigent circumstances, a warrantless search is an invasion of a person’s reasonable expectation of privacy. State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998). In order to be valid, consent must be given voluntarily. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).
Whether consent was given voluntarily is a question of fact determined from the totality of the circumstances. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990). The Minnesota Supreme Court has determined that the absence of verbal protest does not necessarily establish that consent was voluntary. See Dezso, 512 N.W.2d at 880 (failure to object not the same as consent). Additionally, “[m]ere acquiescence on a claim of police authority or submission in the face of a show of force is, of course, not enough” to prove voluntary consent. State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (citing Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 1792 (1968)). On appeal, we review the district court’s determination that there was voluntary consent for clear error. Alayon, 459 N.W.2d at 330. This court will not reverse a district court’s findings absent a “firm conviction that a mistake was made.” State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).
The district court found that respondent’s consent for the final bag search was not given voluntarily because (1) respondent was questioned after being approached by seven uniformed police personnel; (2) respondent and Hage repeatedly told officers that they had not used drugs and police found no indication to the contrary and, despite this, the officers escorted the men to the campsite; (3) respondent and Hage were first questioned on the side of the highway and, in spite of the absence of any admission of illegal drug use, they were questioned again at the campsite; (4) the officers testified that the men were not free to leave; (5) the officers, persistent in spite of the absence of evidence of wrongdoing by respondent or Hage, once or twice asked for consent to search the tent, engaged in that search, as well as a pat down search, and finally asked if they could look in respondent’s bag; and, (6) respondent gave vague responses with respect to permission for the searches, and there was a possibility that he was under the impression that the search of the bag was part of the pat down search of his body.
The record supports the district court’s overall finding that respondent did not voluntarily consent to the search of his personal bag. We are to defer to the district court’s determination unless we feel strongly that a mistake was made, which is not evident here. There was no error.
Appellant also argues that the district court went astray in its findings regarding the absence of a Miranda warning and the lack of a Scales recording. But it is not evident from the record that the court used the Miranda consideration as anything other than a natural part of its unease at the continued questioning of respondent. Similarly, the record does not show that the district court’s Scales concern was part of anything other than a part of its finding that the requests and responses on consent were vague and difficult to determine. There was no error in the court’s discussion of these topics as part of its consent findings.
Appellant additionally questions whether the district court erred in further determining that the search occurred in the course of an unlawful arrest, and that respondent was arrested without cause at the time of his transport back to the campsite. Appellant argues that the search occurred incidental to a temporary investigative detention but elects to make no argument that the district court erred in its findings that the officers acted without cause.
A seizure of a person, or arrest, occurs when a police officer restrains an individual’s freedom of movement. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984). “The ultimate test to be used in determining whether a suspect was under arrest is whether a reasonable person would have concluded, under the circumstances, that he was under arrest and not free to go.” State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984). “[D]eterminations of reasonable suspicion and probable cause as they relate to searches and seizures should be reviewed de novo on appeal,” and “the findings of fact should be reviewed for clear error.” State v. Lemieux, 726 N.W.2d 783, 787 (Minn. 2007) (quotation omitted).
The state characterizes the police control in this case as a continuing investigative detention, not an arrest. In Terry v. Ohio, the Supreme Court held that investigatory stops are reasonable and not in violation of the prohibition against unreasonable search and seizure when the officer has a reasonable, articulable suspicion of criminal activity. 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). An officer may restrain a person’s movement during an investigative detention. State v. Moffat, 450 N.W.2d 116, 119 (Minn. 1990). And the police may continue the detention as long as the reasonable suspicion for the detention remains and the police act diligently and reasonably. Id. But “the officer’s [reasonable] suspicion must be based on specific, articulable facts.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).
Because extension of an investigative detention requires reasonable suspicion, id., it is determinative that the district court found that there was no cause for the control exercised by officers in this case. Appellant does not question that the record permits these findings. Any police suspicion of illegal drug use was directed at the female companion, but she was removed from the scene almost immediately. The officers learned nothing by questioning or observation to suggest that the men used or possessed drugs. This remained the case throughout the police conduct of transporting the men back to the camp, questioning them further, searching the tent and a bag in the tent, and a pat search of both men, all before the moment when respondent was asked to permit the search of his personal bag. Because the district court’s findings are adequately supported by this record, the continued control of the officers, whether by arrest or detention, was unjustified. There is no occasion in these circumstances to determine whether the officers arrested or otherwise detained the men in the events leading to the search of respondent’s bag.
Because the district court appropriately determined that any consent given by respondent was involuntary, and that a resulting search also was not incident to a lawful detention, we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.