This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Donald Perkins,


Filed November 4, 1997


Randall, Judge

Winona County District Court

File No. K9-97-61

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Charles E. MacLean, Winona County Attorney, Steven L. Schleicher, Assistant Winona County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for appellant)

Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Ave. SE, Suite 600, Minneapolis, MN 55414 (for respondent)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.



The state challenges the district court's suppression of evidence obtained during search and seizure and requests a remand to the district court for further proceedings on the issue of the legality of the arresting officers' entry into respondent's hotel room. The state also challenges the district court's dismissal of respondent's fifth degree controlled substance crime charge. We affirm.


In the early morning of January 12, 1997, several police officers arrived at the Riverport Inn Hotel in Winona, responding to a call by the hotel management requesting removal of the occupants of a room that had generated several complaints of excessive noise. The officers accompanied the hotel manager to the room, the manager knocked on the door, and respondent Donald Perkins opened it.

According to the officers, when Perkins opened the door they smelled a strong odor of marijuana coming from the room and noted that Perkins appeared to be wearing a long shirt and no pants. The officers asked Perkins to identify himself, and Perkins gave a name that the officers believed to be false. The officers then asked whether any females were in the room, and if so, whether they were dressed. Someone from inside the room responded that there were females in the room and that they were not dressed. The officers instructed them to get dressed while the officers paused before entering the room.

As the officers entered the room, they informed all seven occupants, including five males and two juvenile females, that they were under arrest for suspicion of possession of marijuana. Once inside the room, the officers saw a bra on the floor and noted that the females were not wearing shoes or socks. The officers also observed numerous alcohol containers and conducted a complete search of the room. During the search, the officers discovered a small amount of marijuana in the bathroom sink, seven "rocks" of crack cocaine in a plastic bag under a comforter, and two rocks of crack hidden in a Cincinnati Reds baseball cap. Based on later investigation, the police determined that Perkins owned the baseball cap containing the crack and charged him with a controlled substance crime in the fifth degree.

At the omnibus hearing, Perkins challenged the validity of his arrest and whether probable cause supported the charge. The court found that the search producing the cap was not a valid search incident to arrest, and that "[n]o other theory advanced by the state supports the search that produced the cap." As a result, the court suppressed the evidence of the crack contained in the baseball cap. The court also found that, without the crack contained in the cap, the officers did not have probable cause to arrest Perkins for possession of a controlled substance and, accordingly, dismissed the charge against Perkins.


In a pretrial appeal, a reviewing court will reverse the district court's decision only if the state demonstrates clearly and unequivocally that the court erred in its judgment and that such error had or will have a critical impact on the outcome of the case. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).


The state argues the district court erred by considering the legality of the officers' entry into the hotel room and requests a remand for further development of the record on this issue. The state asserts that it lacked notice that the legality of the officers' entry into the hotel room was in question and that as a result, it lacked the opportunity to adequately develop a record on that issue. Perkins counters that because his arrest was illegal, the burden was on the state to justify the entry and search on other grounds, such as valid entry. Because the state failed to do so, Perkins reasons, the entry and search were unconstitutional.

A pretrial motion to suppress should specify with particularity "the grounds advanced for suppression in order to give the state as much advance notice as possible" of the issues the defendant will address at the hearing. State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992). In practice, however, defense counsel often makes merely a general statement of the issues. Id.

Here, the state claims that it had no notice either in Perkins' filings or at the omnibus hearing that the legality of the officers' entry was at issue. It is true that Perkins did not specify in his written motion or at the omnibus hearing that he was challenging the legality of the officers' entry, and the district court did state at the omnibus hearing that it was focusing on the legality of the arrest. However, because Perkins challenged the validity of his arrest, which occurred after the officers' entry, it is self-evident he would challenge the validity of the officers' entry in hopes of having the evidence obtained as a result of that entry excluded from the determination of whether probable cause supported his arrest. Accordingly, the state had adequate notice at the omnibus hearing that the legality of the officers' entry would be in question.

This case is distinguishable from Needham, where the court ordered the omnibus hearing reopened to give the state a "full and fair opportunity" to oppose the defendant's motion to suppress his confession. 488 N.W.2d at 296-97. In that case, the state claimed inadequate notice of the defendant's challenge to the sufficiency of a Miranda warning. Id. at 294. The testimony at the omnibus hearing focused on issues relating to defendant's request for counsel and on medication defendant was taking when he gave the confession, rather than on the Miranda warning. Id. at 296. The Miranda warning issue was not raised until defendant addressed it in his omnibus hearing brief after the hearing's conclusion. Here, in contrast, the record contains substantial evidence on the circumstances surrounding the officers' entry into the room, including one officer's report and the testimony of two other officers. This evidence eliminates the need for a remand for further development of the record.

On the merits, we conclude the district court did not unequivocally err by suppressing the evidence discovered in the hotel room search. Generally, an officer may make a warrantless arrest where a felony has been committed and the officer has probable cause to believe that the individual arrested committed it. Minn. Stat. § 629.34, subd. 1(c)(3) (1996). An officer may also arrest an individual without a warrant if the individual commits a public offense, including a misdemeanor, in the officer's presence. Minn. Stat. § 629.34, subd. 1(c)(1) (1996); Smith v. Hubbard, 253 Minn. 215, 220, 91 N.W.2d 756, 761 (1958). But the state must justify a warrantless entry of a dwelling to make an arrest on either consent or probable cause and exigent circumstances. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996). Hotel room guests are protected by these same Fourth Amendment rights. State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). Here, the state makes no claim that the officers entered the room with consent or that exigent circumstances justified a warrantless entry.

Additionally, the entry cannot be justified as a search incident to Perkins' arrest for providing a false name. We agree it may be a misdemeanor to give a false name to a police officer, but it must be given with the "intent to obstruct justice." See Minn. Stat. § 609.506 (1996). Officers may make a limited search pursuant to a lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969) (requiring no independent justification for limited search incident to valid arrest). Here, however, the officers did not arrest Perkins for providing a false name. Even if they had, the search of the entire sleeping area and bathroom exceeded the permissible scope of a search incident to an arrest for a false name given in a doorway. The district court, in concluding that Perkins' rights had been violated under Article 1, Section 10 of the Minnesota Constitution and under the Fourth Amendment to the United States Constitution, stated:

[O]n the record presented, the search producing the hat and the contraband secreted therein cannot be justified as incident to the arrest of Perkins or any other individual in the room. Although the police would be justified in arresting Perkins for the misdemeanor offense of providing a false name, the offense occurred in the doorway (threshold) of the hotel room. Generally, absent consent or exigent circumstances and probable cause, a private home, which would include a hotel room, is protected from police entry to effect an arrest without a warrant. Since the police entered the hotel room without first announcing their intention to arrest Perkins, Perkins had not forfeited his privacy interest to the hotel room, and entry to effect his arrest cannot be upheld.

Without a valid arrest in a place whereby the cap could be identified as being within the immediate control of Perkins or some other individual properly arrested, the record does not support the notion that the cap was discovered and seized as incident to arrest. No other theory advanced by the State supports the search that produced the cap. Therefore, the cap was seized without justification and all that it yielded must be suppressed. Without that evidence, probable cause for the charge against Perkins is lacking.

(citations omitted).

We conclude that it is unnecessary to remand this case to the district court for further development of the record. We further conclude that the district court did not err in considering the legality of the entry, nor did it err in suppressing evidence obtained in the search following that entry.


The state contends that Perkins' arrest was supported by probable cause. Because the officers lacked consent or exigent circumstances to justify their entry into the room, and warrantless entry can be based only on consent, or probable cause and exigent circumstances, and the arrests that followed the entry were unconstitutional. See State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).

Further, the record is not even clear that Perkins' arrest was supported by probable cause. The existence of probable cause turns on the facts of each case. State v. Cox, 294 Minn. 252, 256, 200 N.W.2d 305, 308 (1972). The test for probable cause to arrest is whether

the officers in the particular circumstances, conditioned by their own observations and information and guided by the whole of their police experience, reasonably could have believed that a crime had been committed by the person to be arrested.

State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989) (citation omitted); see also State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (probable cause exists where the objective facts would lead person of ordinary care and prudence to entertain an honest and strong suspicion that an individual has committed a crime).

Here, the state cites certain facts in support of a finding of probable cause to arrest respondent, but most of the facts relied upon by the state were not yet known to the officers at the time the officers entered the hotel room. At that point in time, the officers did not know that the females in the room were juveniles or that the room contained alcoholic beverage containers. Before reaching the hotel room, the officers knew only that the hotel manager had received several excessive noise complaints concerning a particular room and wanted the occupants of that room removed. When Perkins opened the door, he did not appear to be wearing any pants, and the officers believed he had given them a false name. The officers also claimed to have smelled marijuana, We note that this claim by the officers is not as strong as it appears. On cross-examination one of the officers admitted that he did not smell marijuana when Perkins first opened the door.

Based on this evidence, the officers "might" have had reason to suspect someone in the room was engaged in criminal activity. With the limited information available to the officers before the entry, however, only the false name and possibly the smell of marijuana[1] related to the existence of probable cause supporting Perkins' arrest. As previously stated, the officers did not arrest Perkins for giving a false name, and they did not attempt to arrest him until after they began entering the room. Further, the police had been informed by the hotel staff that there were multiple occupants in the room. Thus, any marijuana smell could have stemmed from any one of the other occupants.

Although different on the facts, we get guidance from State v. Martin which states that "under the [R]ules [of Criminal Procedure], an officer ordinarily may not arrest a person without a warrant for a petty misdemeanor." State v. Martin, 253 N.W.2d 404, 406 (Minn. 1977). Here, the officers had little, if any, evidence, as they first entered the room and before the search, that anyone in the room possessed more than a small amount of marijuana. And that evidence did not point to Perkins. The officers claimed only that they observed a "strong smell" of marijuana. They did not see any drugs or drug paraphernalia before announcing that Perkins and the other hotel room occupants were under arrest. Nor did the officers know that, if the room did contain more than a small amount of marijuana, Perkins, rather than the others in the room, possessed it. On this record, the district court did not err by concluding the officers lacked probable cause to arrest Perkins.

There are valid points argued here by the state. This is a close case, but taking into account all of the facts, and a district court's discretion in weighing evidence in pretrial hearings, we cannot say the district court unequivocally erred in suppressing the evidence in this case. Thus, the state did not meet its burden of showing clear and unequivocal error. Further, we cannot say the court erred in finding that no probable cause supported Perkins' controlled substance charge.


Perkins requests attorney fees on appeal. A defendant, compelled to respond to a pretrial appeal by the state, is entitled, as a matter of law, to reasonable attorney fees and costs. Minn. R. Crim. P. 28.04, subd. 2(6). Perkins' counsel moved for modest attorney fees of $800. That figure is well within the range of awards granted by appellate courts under Minn. R. Crim. P. 28.04, subd. 2(6). We, therefore, grant Perkins $800 in attorney fees.


[ ]1 We also note that the record does not indicate that the officers had any specific training in differentiating the odor of burning marijuana, sight unseen, from other substances.