This opinion will be unpublished and
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,
Gregory George Schroenghamer,
Filed July 21, 1998
Crow Wing County District Court
File No. K2-96-2508
Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
Dennis M. Lothspeich, 804 Laurel Street, Suite 2B, P.O. Box 552, Brainerd, MN 56401 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Peterson, Judge, and Amundson, Judge.
Appellant argues that his detention after the initial motor vehicle stop was unconstitutional and that he did not voluntarily consent to the search of his person. Appellant therefore claims that the district court erred by not suppressing the evidence underlying his conviction. We affirm.
While on routine patrol, Deputy Sheriff Bradley Wittwer noticed a commercial plumbing truck driving erratically. The truck swerved onto the shoulder three or four times, one time by almost three feet. The deputy also observed the truck cross over the centerline by a foot or more.
After stopping the vehicle, Deputy Wittwer asked appellant Gregory George Schroenghamer if he had been drinking. Schroenghamer said no and explained that he was eating his lunch while driving. Deputy Wittwer obtained Schroenghamer’s driver’s license, returned to his squad car, and called in for a driver’s license check. Approximately five to ten minutes after the initial stop of Schroenghamer’s vehicle, the police department informed Deputy Wittwer that it had information that Schroenghamer was a user and seller of methamphetamine and was usually high on methamphetamine when he was working.
Deputy Wittwer asked Schroenghamer if he had taken any drugs that day or if he had any drugs in his possession and Schroenghamer said no. The deputy then asked Schroenghamer if he could look in is pockets, and Schroenghamer said, "Sure, go ahead." Deputy Wittwer found a film canister that contained what appeared to be a quantity of methamphetamine, and Schroenghamer admitted that it was his. Deputy Wittwer arrested Schroenghamer, finished searching him, and placed him in the back of the squad car.
Deputy Wittwer went back to the truck and found a fanny pack in the front seat area. Inside the pack were more bags of what appeared to be methamphetamine, marijuana, marijuana seeds, hashish, and prescription drugs. The substance in the film canister and the items taken from the pack were subsequently tested, and a number of them were found to be marijuana and methamphetamine.
Schroenghamer moved to suppress the evidence, arguing that his detention for questioning following the traffic stop was unlawful and that he did not voluntarily consent to the search of his person. Schroenghamer claimed that he did not recall the deputy asking him if he could search his front pockets, nor did he recall responding "Sure, go ahead." According to Schroenghamer, the deputy said something to the effect of "I’m going to search your pockets" or "I’m going to search you." Schroenghamer testified that he thought the deputy was making a demand and was going to search him regardless of what he said.
After the district court denied Schroenghamer’s motion, the state agreed to amend the complaint to a charge of simple possession of methamphetamine, and Schroenghamer agreed to waive a jury and be tried on a stipulated record. The district court found Schroenghamer guilty. This appeal followed.
D E C I S I O N
In deciding whether to suppress evidence, if the facts are not in dispute, this court independently reviews the facts and determines, as a matter of law, whether the evidence needs to be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). If the district court’s findings of fact are challenged on appeal, they are accepted by this court unless found to be clearly erroneous. Minn. R. Civ. P. 52.01. Furthermore, the credibility determinations of a district court judge, sitting as a finder of fact, should not be disturbed on appeal. State v. Fisler, 374 N.W.2d 566, 569 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985).
Schroenghamer concedes that the initial stop of his vehicle was justified, but he claims that the duration of his subsequent detention was unconstitutional. The detention which follows a lawful stop may last "as long as reasonably necessary to effectuate the purpose of the stop." State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985)). Neither the Minnesota Supreme Court nor the United States Supreme Court has imposed a rigid time limitation on the permissible duration of a stop. Id. "[A]s long as the reasonable suspicion for the detention remains, the police may continue the detention provided they act diligently and reasonably." State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990). Whether the duration of a detention is justifiable depends on the particular facts and circumstances involved. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).
Here, the duration of Schroenghamer’s detention following the initial stop was justifiable. Deputy Wittwer stopped Schroenghamer because he was concerned about Schroenghamer’s ability to drive and wanted to determine why he was swerving. The record is not specific about the amount of time that elapsed, but Schroenghamer approximated that five to ten minutes had passed after the deputy went back to his squad car to call in a driver’s license check and returned to question him about his use or possession of drugs. The amount of time between the initial stop and the discovery of methamphetamine in Schroenghamer’s pocket was relatively brief, and throughout that time, Deputy Wittwer diligently attempted to determine the cause of Schroenghamer’s careless driving.
Schroenghamer argues that Deputy Wittwer should have allowed him to leave immediately after noticing that he did not appear intoxicated and after he provided an explanation for the swerving (that he was eating his lunch while driving). Deputy Wittwer testified that while Schroenghamer did not appear to be under the influence of alcohol, he did not know the cause of Schroenghamer’s erratic driving. The deputy testified that Schroenghamer’s explanation--that he was merely eating his lunch--was not plausible because eating may cause one to swerve once, but not as many times as Schroenghamer did. Having initially ruled out alcohol impairment, it was imperative for the deputy to explore possible alternative explanations for Schroenghamer’s observed inability to drive in a safe and prudent manner.
Given the particular facts and circumstances of this case, the duration of Schroenghamer’s detention was justifiable.
A warrantless search does not violate the Fourth Amendment if it is conducted with consent. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). "[C]onsent to search need only be voluntary, that is, uncoerced, and need not be knowing or intelligent." State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990), cert. denied, 498 U.S. 1049, 111 S. Ct. 757 (1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)). Whether consent is voluntary is a question of fact determined based on the totality of the circumstances. Id. Like all factual determinations, a district court’s determination of voluntary consent will not be overturned unless clearly erroneous. Id.
Here, the district court specifically found that the search of Schroenghamer’s person "was based on consent, which was freely and voluntarily given." This finding is amply supported by the record. According to Deputy Wittwer, when he asked Schroenghamer if he could look in his pockets, Schroenghamer replied, "Sure, go ahead." This is clearly voluntary consent.
At the omnibus hearing, Schroenghamer testified that he felt that the deputy was going to search him regardless of what he said. Schroenghamer, however, failed to state any facts to support his claimed intimidation or provide any explanation of why he felt intimidated by the deputy. As the supreme court wrote:
Questioning by the police, for the innocent as well as the criminally-implicated, even under benign circumstances, can be an intimidating experience; but reasonable persons understand that this is part of the "accommodation of the complex of values" involved. Consequently, involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned.
Dezso, 512 N.W.2d at 880. In the absence of any explanation by Schroenghamer as to why he felt intimidated, the district court reasonably decided not to credit Schroenghamer’s conclusory statement that his consent was not voluntary.
The district court’s determination that Schroenghamer voluntarily consented is not clearly erroneous. The district court properly declined to suppress the evidence found as a result of that search.