Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Thomas Phelps,
Filed May 19, 1998
Becker County District Court
File No. K7-96-1259
Joseph A. Evans, Becker County Attorney, P.O. Box 743, Detroit Lakes, MN 56502 (for respondent)
John H. Erickson, Erickson Law Offices, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Foley, Judge.*
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
On appeal from a conviction for fifth-degree controlled substance crime, appellant Scott Thomas Phelps challenges the district court's denial of his motion to suppress evidence discovered during a search of a vehicle in which he was a passenger, and the statement he made to police following his arrest. We affirm.
Phelps was a passenger in a pick-up truck being driven by his friend. While conducting bicycle patrol, Officer Scott Fox saw a full case of beer in the back of the truck. The beer was visible through the open door of the truck's topper. Fox rode his bicycle alongside the truck until he was next to the driver's window, through which he observed Phelps and the driver.
Because Phelps and the driver appeared to Fox to be under age 21, Fox stopped the truck. While standing next to the driver's window, Fox smelled an odor of alcohol coming from within the truck and saw what appeared to be a wet area on the floor of the truck's passenger side. Fox testified that based on his experience, because it was not raining, the wet area indicated the possibility of open beer cans in the truck.
After Phelps and the driver produced identification that showed both were under age 21, Fox searched the truck for alcohol. In the front passenger area, between the passenger seat and the driver seat, Fox found a partially full, open beer can; he also found a couple of empty beer cans in the passenger area. Fox next searched the truck's box, where he found four cases of beer and some wine coolers.
Finally, Fox searched the back seat of the truck's passenger area. He found a cooler behind the driver's seat and opened it to look for more beer. In the cooler, Fox found beer cans and, on top of some ice, a clear baby food jar with a film canister inside. Fox testified that certain types of drugs are commonly transported in film canisters and on ice to keep them from deteriorating. In the film canister, Fox found four folded paper bindles, which are commonly used to transport powder narcotics. Fox opened a bindle and found a substance that looked like and was later identified as methamphetamine.
Fox arrested Phelps and the driver for underage possession of alcohol and possession of a controlled substance. Phelps made a voluntary statement to police, admitting that the methamphetamine belonged to both him and the driver.
D E C I S I O N
When the material facts are undisputed, the district court's decision on a motion to suppress is a question of law subject to de novo review. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996); State v. Schauer, 501 N.W.2d 673, 674 (Minn. App. 1993).
It is unlawful for a person under age 21 to
possess any alcoholic beverage with the intent to consume it at a place other than the household of the person's parent or guardian. Possession at a place other than the household of the parent or guardian creates a rebuttable presumption of intent to consume it at a place other than the household of the parent or guardian.
Minn. Stat. § 340A.503, subd. 3 (1994).
Phelps argues that Fox's observation of beer in the truck's box did not support a reasonable suspicion that Phelps or the driver possessed alcohol. The state can prove possession by showing constructive possession. See State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610-11 (1975) (explanation of constructive-possessing doctrine); Minn. Stat. § 169.122, subd. 2 (1996) (definition of possession). If police find a substance in a place to which more than one person had access, to prove constructive possession, the state must show that "there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it." Florine, 303 Minn. at 105, 226 N.W.2d at 611. Dominion and control can be shared with others. State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972).
Fox saw a full case of beer in the truck's box. The topper's rear door was open, so the beer was accessible to Phelps and the driver. Under the doctrine of constructive possession, the facts were sufficient to support a reasonable suspicion that Phelps or the driver possessed the beer.
Citing the open bottle law, Phelps argues that the underage possession law should be construed as inapplicable to vehicle areas not normally occupied by the driver and passengers. We disagree. Unlike the underage possession law, the open bottle law expressly sets forth an exception for vehicle areas not normally occupied by the driver and passengers. Minn. Stat. § 169.122, subd. 2.
Phelps also argues that the stop was based on Fox's mere hunch that Phelps and the driver were under age 21. Fox's testimony that he observed Phelps and the driver through the window of the truck and they appeared to be under age 21 was sufficient to support a reasonable suspicion that they were not old enough to legally possess alcohol. See Cripps, 533 N.W.2d at 392 ("officer can justify an investigative seizure of a person who is in a bar if that person appears to the officer to be under the legal age to consume alcohol"). The evidence was sufficient to support a reasonable suspicion that Phelps or the driver was violating Minn. Stat. § 340A.503, subd. 3.
[P]olice may search a vehicle without a warrant, including any closed containers within the vehicle, if they have probable cause to believe the search will result in a discovery of evidence or contraband.
State v. Search, 472 N.W.2d 850, 852 (Minn. 1991). Probable cause means a reasonable belief based on the totality of the circumstances considered in light of the officer's experience and observations. State v. Nace, 404 N.W.2d 357, 360 (Minn. App. 1987), review denied (Minn. June 25, 1987).
Phelps does not dispute that Fox had probable cause to search the truck's passenger area for beer or that Fox had probable cause to look in the cooler for beer. Phelps argues that Fox lacked probable cause to search the baby food jar and the film canister because he was searching them for a controlled substance, not alcohol. If an officer gains probable cause to search for a controlled substance during a legal search for alcohol, the scope of the search can be expanded to include places where there is probable cause to believe the controlled substance will be found. See State v. Veigel, 304 N.W.2d 900, 901-02 (Minn. 1981) (when officers discovered marijuana in vehicle's passenger area while conducting lawful search for alcohol, probable cause to search locked glove compartment for alcohol was not necessary because there was probable cause to search for controlled substances).
When Fox opened the cooler to look for more beer, he saw a clear baby food jar with a film canister inside. Fox testified that certain types of drugs are commonly transported in film canisters and on ice to keep them from deteriorating. Fox's observation
of the film canister in the baby food jar on top of ice in the cooler, considered in light of his experience and training, was sufficient to provide him with probable cause to search the film canister and the baby food jar.
the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed [by the suspect].
In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).
Phelps appeared to Fox to be under age 21. Fox smelled a strong odor of alcohol coming from the truck; he observed a wet spot on the floor of the front-seat passenger area, indicating the possibility of open beer cans in the truck; in the front seat of the truck's passenger area, between the passenger seat and the driver's seat, Fox found a partially-full, open beer can; Fox also found a couple of empty beer cans in the truck's passenger area; and in the extended-cab area of the truck, Fox found a cooler containing beer cans. These facts were sufficient to support a probable cause determination that Phelps was exercising dominion and control over the beer in the passenger area of the truck and, thus, had violated Minn. Stat. § 340A.503. Because Fox had probable cause to arrest Phelps, Phelps' statement to police was admissible.