This opinion will be unpublished and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

C9-95-2687

State of Minnesota,

Respondent,

vs.

Lazaro Sanchez Chavarria,

Appellant.

Filed November 19, 1996

Reversed

Amundson, Judge

Ramsey County District Court

File No. K6-95-1363

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Steven C. Decoster and Mark N. Lystig, Assistant Ramsey County Attorneys, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant Lazaro Sanchez Chavarria challenges the trial court's denial of his motion to suppress evidence flowing from a protective sweep that was not conducted incident to an arrest. Sanchez Chavarria also challenges the trial court's conclusion that the state proved beyond a reasonable doubt that he had constructively possessed or exercised dominion and control over marijuana with intent to sell. We reverse.

FACTS

On April 24, 1995, a man was shot to death in West St. Paul. During the course of the investigation, the police learned that the suspect had been seen driving a black Ford Taurus. They tracked the car to an apartment building in St. Paul. On April 28, 1995, two officers went to the apartment building and spoke with the manager. From that conversation, they learned that the car was parked in the stall adjacent to the one belonging to Victor Villegas, someone the police thought might be able to provide them with information about the homicide. The police believed that two individuals were involved in the homicide, but Villegas was not one of those suspects.

After locating the car, the officers went to the apartment rented by Villegas and knocked on the door. The officers heard doors closing and people moving inside the apartment. Appellant Lazaro Sanchez Chavarria answered the door. He was wearing jeans but not a shirt and looked like he had just awakened. Sanchez Chavarria does not speak any English, so one of the officers, who is fluent in Spanish, spoke to him in Spanish. The officer asked if the apartment was the residence of Villegas and if Villegas was at home. Sanchez Chavarria told the officer that Villegas lived there, but that he was not at home. Sanchez Chavarria told the officer that he was staying in the apartment. The officer then asked Sanchez Chavarria if he would be willing to talk to them about the investigation. He said he would and invited the officers in.

Before stepping into the apartment, the officers saw a second person in the doorway of what appeared to be a bathroom. That person looked from the doorway and then disappeared. When the officers asked the second person to come out, he did so. The officers stated that neither of the individuals in the apartment fit the description of the suspect. Sanchez Chavarria was asked if there was anyone else in the apartment. He said that there was not and, according to the testimony of one of the officers, told the officers to look around.

Before being told to look around, however, one of the officers had begun to conduct a protective sweep of the apartment. The officers testified that they believed the sweep was necessary for their safety. One of the officers stated that he believed that one of the homicide suspects might be in the apartment, that the apartment appeared to be used by transients, and that he had heard noises before entering the apartment. The officer looked into a closet in the bedroom and saw a bag containing approximately one pound of marijuana, several other bags of similar size, and a triple beam scale. The officer also saw cellular phones, pagers, a cartridge box, and some marijuana residue in plain view in the bedroom.

After making these observations, the officer wrote a note to his colleague telling him that there were "pounds" of marijuana in the bedroom. The officers froze the scene, advised both individuals of their rights, and called for assistance and a search warrant.

The search of the apartment revealed keys for the Ford Taurus, a storage locker on Eaton Street, and the residence where the homicide took place. There was also another single key for the Taurus, a second triple beam scale, ammunition, papers, cellular phone bills, a wallet, and freezer bags. The search did not reveal any papers with Sanchez Chavarria's name, but some of the clothes that were found in the closet on the end opposite the marijuana belonged to him. Clothes belonging to other individuals were also found in the closet. The search warrant also allowed the officers to search the Taurus, where they found the rental agreement for the storage locker. The officers then obtained a search warrant for that locker. The locker contained approximately forty-four pounds of marijuana and more freezer bags.

Sanchez Chavarria was charged with two counts of controlled substance crime. The trial court denied his motion to suppress evidence flowing from the protective sweep, which Sanchez Chavarria contended was unconstitutional because it was not incident to a lawful arrest and there were no exigent circumstances. The trial court found that the storage locker was a place under Sanchez Chavarria's control and to which other people did not normally have access. The court made a similar finding with regard to the bedroom at the apartment. The trial court then concluded that Sanchez Chavarria possessed the marijuana at the apartment and at the storage locker. Sanchez Chavarria was convicted of both counts. This appeal followed.

DECISION

On an appeal from a pre-trial order suppressing evidence, where the district court's decision was a question of law, this court may review the facts independently and determine whether the evidence should be suppressed. See State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Sanchez Chavarria contends that the trial court erred in denying his motion to suppress the evidence that flowed from the protective sweep as "fruit of the poisonous tree" because the protective sweep was not conducted incident to an arrest and there were no exigent circumstances to justify the search. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963).

A protective sweep is permitted by the Fourth Amendment in conjunction with an in-home arrest when an "officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 337, 110 S. Ct. 1093, 1099-1100 (1990). The Eighth Circuit has adopted Buie's standard for allowing protective sweeps based on a police officer's reasonable perception of danger. See Griener v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).

The trial court found that two of the officers thought a protective sweep was necessary for their safety "in light of the homicide investigation, the observation of the second person, and the noise that they heard."

The record indicates that: (1) the officers were going to the apartment to talk to Villegas, who was not a suspect in the homicide investigation; (2) the second person in the apartment came into the living room when asked to do so and presented identification; (3) the two individuals did not fit the description of the suspect; and (4) the officers did not "frisk" either person. In addition, the testimony about whether the officers heard noise in another room after entering the apartment is inconsistent and not part of the police reports. The officer who conducted the sweep stated that he believed the suspect might be at the apartment, the apartment appeared to be used by transients, and he had heard noises before entering the apartment. However, the only link between the homicide and the apartment was the black Ford Taurus, which had been towed from the apartment building. The officers were not going to the apartment to arrest anyone and did not approach the apartment with their guns drawn.

Because the officers were not going to the apartment to arrest Villegas or any other residents and because there was no evidence that anyone else was in the apartment, there is not a legal justification for conducting a protective sweep search and the evidence flowing from that search should have been suppressed.

Because we are reversing the case based on the illegal search, we need not reach the issue of whether the evidence supports the trial court's conclusion that Sanchez Chavarria constructively possessed the marijuana.

Reversed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.