may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William Edward Jackson,
Filed March 18, 1997
Ramsey County District Court
File No. K1951819
Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.
Contending that he involuntarily consented to the search of his person, appellant claims that he was entitled to suppression of methamphetamine evidence seized during the search. We affirm the trial court's decision to admit this evidence.
After the trial court denied appellant's motion to suppress, appellant was convicted of fifth-degree possession of a controlled substance.
Although appellant does not dispute the lawfulness of the initial stop, he asserts that he did not voluntarily consent to the search because he merely acquiesced to a search already in progress. Whether a consent to a search is voluntary is determined by examining the totality of the circumstances. Dezso, 512 N.W.2d at 880 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S. Ct. 2041, 2059 (1973)). Consent is voluntary where given without coercion or submission to an assertion of police authority. Id. In addition, consent to a police request is not involuntary "simply because the circumstances of the encounter are uncomfortable for the person being questioned." Id. The trial court found that appellant voluntarily consented to the search, and the record permits that finding.
Appellant primarily relies on Dezso. In that case, the Minnesota Supreme Court concluded that the defendant did not voluntarily consent to a search of his wallet where the officer officially and persistently questioned the defendant while the defendant was seated in the officer's vehicle, the officer moved toward the defendant while questioning him, there was no indication that the defendant knew he could refuse the officer's request, and the defendant's answers to the officer's requests seemingly did not indicate a willingness to allow a search. Id. at 881.
Unlike the defendant in Dezso, appellant unequivocally consented to the officer's request to search his person by telling the officer to "go ahead." Furthermore, Dezso is distinguishable because it represents the special scrutiny given to the concept of consent to search in the context of routine traffic stops. See State v. George, 557 N.W.2d 575, 580 (Minn. 1997) (requiring in those circumstances that there be sufficient proof that the consent to search was "truly express, clear and voluntary"). The search of appellant occurred in circumstances that do not involve the risks observed in traffic stops, where citizens are stopped for slight cause, sometimes pretextual, and where police may impermissibly target members of groups. See id at 579-80.
Appellant also contends that his consent was involuntary because the officer obtained his consent through a show of official authority, but the circumstances in this case do not rise to that level. Although appellant believed that the officer would search him anyway and felt intimidated because the officer carried a gun in his holster, appellant's mere discomfort is not sufficient to destroy voluntariness. Dezso, 512 N.W.2d at 880. Unlike the circumstances in Dezso, the officer did not repeatedly ask appellant for his consent. See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (distinguishing Dezso and finding no showing of official authority where officer made only a single request), review denied (Minn. Mar. 14, 1995); cf. State v. Lembke, 509 N.W.2d 182, 183-84 (Minn. App. 1993) (finding no voluntary consent where defendant stopped for speeding handed officer an incriminating bag only after the officer twice demanded to see it). Finally, the officer never drew his gun or otherwise threatened appellant with force. Cf. State v. Armstrong, 292 Minn. 471, 473, 194 N.W.2d 293, 294 (1972) (stating that a police request "accompanied by force or threat of force" renders consent involuntary); In re Welfare of D.A.G., 474 N.W.2d 419, 423 (Minn. App. 1991) (holding that unannounced entry of police with weapons drawn established "acquiescence in the face of claimed authority," not voluntary consent), aff'd, 484 N.W.2d 787 (Minn. 1992). Rather, the officer testified that he was "nice" to appellant and that appellant was "very cooperative." Thus, under the totality of the circumstances, the police obtained a valid consent from appellant before the search.
The trial court did not err by finding that appellant's consent to a search of his person was voluntary and deciding to deny appellant's motion to suppress evidence seized during the search.
In his pro se brief, appellant questions the existence of "off limits" areas that invite police interference. Inferring from this statement that appellant personally challenges the initial police approach to the occupants of his car in this case, we observe that the arrival of a person at a site where police are executing a search warrant provides a basis for the police to stop that person when he indicates an intent to visit the site. See State v. Gobely, 366 N.W.2d 600, 602-03 (Minn.) (holding that police had justification to stop and frisk defendant who entered an apartment during an execution of a search warrant for stolen property), cert. denied, 474 U.S. 922 (1985). Evidence in the record shows that appellant and his passenger motioned toward the house while they were in the parked vehicle, that appellant left the vehicle, proceeded toward the house, and then stopped and returned to the vehicle, and that police observed appellant was carrying a knife. The police stop was lawful.