This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Julius Jones III,
Filed September 24, 1996
Ramsey County District Court
File No. KX951706
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Julius Jones III appeals from his criminal conviction for possession of cocaine. We affirm.
Appellant Julius Jones III was convicted under Minn. Stat. §subd. 2(1) (1994), of one count of controlled substance offense in the fifth degree, possession of cocaine. The district court denied Jones's motion to suppress evidence he claimed was the result of an illegal search.
At the omnibus hearing the arresting officer testified that when he stopped Jones for questioning, the officer requested--and was granted--Jones's permission to conduct a body search. The officer patted down Jones's outer clothing and searched his waistband and pockets. The officer then asked Jones to open his mouth and to lift his tongue. Jones opened his mouth, but refused to lift his tongue. He did, however, move his tongue back and forth and, in so doing, enabled the officer to see what the officer believed was crack cocaine. Jones was then placed under arrest. Jones argues that his consent to the search was involuntary and, even if voluntary, the search exceeded the scope of his consent.
D E C I S I O N
Police do not need articulable suspicion to question citizens and request consent to conduct a search. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.2382, 2388 (1991) (no seizure occurs when police question an individual, ask for identification, and request consent to search--so long as officers do not convey message that compliance is required); see also State v. O'Neill, 299 Minn. 60, 69, 216 N.W.2d 822, 828 (1974) (warrantless search may be conducted when subject of search voluntarily consents). But the state bears the burden in such cases to prove that the consent was voluntary and not coerced. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059 (1973); State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Whether or not the consent was voluntarily is a question of fact for the trial court and is determined by examining the totality of the circumstances. Bustamonte, 412 U.S. at 249, 93 S. Ct. at 2059; Dezso, 512 N.W.2d at 880. While a trial court's factual determinations are not given unlimited deference, they will not be reversed unless clearly erroneous. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).
In this case, Jones testified that he had been arrested before and was familiar with police procedures and that he did not say "no" when the police officer asked permission to search. The arresting officer testified, however, that Jones, in fact, affirmatively consented to the search by telling him to "go ahead," and that Jones neither objected nor withdrew his consent when the officer subsequently asked him to open his mouth. There was no evidence that the officer used force or threatened to use force to obtain Jones's cooperation. The district court--when it found that under the totality of the circumstances Jones consented to the search--chose to adopt the police officer's testimony and to reject defense testimony. Its decision to do so was not clearly erroneous. See State v. Alayon, 459 N.W.2d 325, 330-31 (Minn. 1990) (district court chose to credit police testimony rather than defense testimony regarding coerced consent), cert. denied, 498 U.S. 1049, 111 S. Ct. 757 (1991).
Jones also argues that, even if he voluntarily consented to the search, the search exceeded the scope of his consent. Jones analogizes the visual inspection of his mouth to a body-cavity search. But this was not a body-cavity search as those searches are typically defined. See, e.g., United States v. Nelson, 36 F.3d 758, 759 (8th Cir. 1994) (body-cavity search conducted by medical personnel in a clinical setting); cf. United States v. Torres, 921 F.2d 196, 197 (8th Cir. 1990) (unforced inspection of defendant's mouth that revealed bags of cocaine is only minor intrusion, not one implicating Fourth Amendment rights). This was merely a request by the officer for Jones to open his mouth, which he voluntarily did, exposing the crack cocaine to plain-view discovery.