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,
Dawn Marie Hanes,
Filed December 15, 1998
Affirmed as modified
Dakota County District Court
File No. K3961098
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.
Dawn Marie Hanes appeals her conviction, arguing there was no probable cause for a search warrant, her statements to police officers should have been suppressed, and the trial court erred in denying a downward dispositional departure from the sentencing guidelines. We affirm as modified.
Police received information from a confidential informant that methamphetamine was being sold from a house on Smith Street in St. Paul, but the drugs were stored elsewhere. The informant agreed to make a controlled purchase under police surveillance. While the informant was in the Smith Street house, officers saw Hanes arrive. The officers followed Hanes as she left the Smith Street house, drove to her own residence, went inside, returned to her vehicle, and drove directly back to the Smith Street house. The informant completed the transaction after Hanes returned.
Police obtained a search warrant for Hanes's person and her house. The officers arrived at her house and requested that she remain on the couch while they searched the house. She was not told she was under arrest or read her Miranda rights. An officer asked Hanes to confine her pets to the bathroom. Hanes agreed and while en route to do so, Hanes told the officer that she wanted to "get this over with" and then led the officers to a cabinet in her basement, which was found to contain suspected methamphetamine. A further search revealed suspected methamphetamine on a shelf in the basement closet, along with drug paraphernalia, a scale, and over $9,000 in cash. Tests revealed that the bag that Hanes showed the officers contained caffeine, but the bag found in the closet contained 302.2 grams of methamphetamine.
Hanes was charged with controlled substance crime in the second degree in violation of Minn. Stat. § 152.022, subds. 1(3), 3(a) (1996) (possession with intent to sell more than 10 grams of methamphetamine) (Count I), and controlled substance crime in the second degree in violation of Minn. Stat. § 152.022, subds. 2(3), 3(a) (1996) (possession of 50 or more grams of methamphetamine) (Count II).
Hanes argued there was no probable cause for the search warrant and the statements she made to police were inadmissible because she was not read her Miranda rights. The district court found probable cause for issuance of the search warrant and refused to suppress the statement made by Hanes in which she volunteered to show officers what they were looking for, but suppressed other statements. Hanes waived a jury trial and the case was submitted on stipulated facts. The district court found Hanes guilty on both counts.
At sentencing, Hanes requested a downward dispositional departure. The court found no substantial and compelling circumstances to support a departure, and imposed a presumptive sentence on Count I, while staying the sentencing on Count II.
1. Hanes argues that the application for the search warrant failed to establish probable cause. A magistrate's determination of probable cause is paid great deference by reviewing courts and will be upheld if there is a substantial basis for its decision; it is not reviewed de novo. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995).
The purpose of the affidavit is to provide the magistrate with sufficient information to independently determine whether probable cause exists. State v. Kahn, 555 N.W.2d 15, 17 (Minn. App. 1996). Minnesota has adopted a "totality of the circumstances" approach. Zanter, 535 N.W.2d at 633. The information given to the magistrate need only establish a fair probability of finding contraband. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). The Fourth Amendment does not require an officer to have first-hand information that articles of a crime are located at the suspect's residence. State v. Yaritz, 287 N.W.2d 13, 15 (Minn. 1979). Probable cause is established if there is a sufficient connection between the illegal items and the place to be searched. State v. Cavegn, 356 N.W.2d 671, 674 (Minn. 1984).
In this case, the information provided was sufficient to establish a connection between the illegal drugs purchased by the confidential informant and the residence and person of Hanes. In light of the totality of the circumstances, including the informant's statement that the drugs were not stored at the Smith Street house, Hanes's brief return to her residence during the controlled buy, and the informant's statement that the transaction was not completed until Hanes returned, it was reasonable for the trial court to conclude that there was a fair probability that contraband would be found at Hanes's residence. We conclude there was a substantial basis for the finding of probable cause.
2. Hanes argues that her offer to show officers what they were looking for is inadmissible because she had not been read her Miranda rights. On review, this court will reverse a trial court's findings leading to the admissibility of statements if they are clearly erroneous. State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988). Suppression is required only if a suspect has been interrogated and is in custody. State v. Seekon, 392 N.W.2d 624, 627 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986). A statement will not be suppressed if it was given freely and voluntarily. Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966).
Although there is no dispute that Hanes was in custody, she has not established that she was being interrogated when she made the incriminating statement. She had only been asked to confine her animals. Her statement was not prompted by police questioning. Conversational comments that invite a response are not the functional equivalent of an interrogation. State v. Jackson, 351 N.W.2d 352, 355 (Minn. 1984). We conclude the statement was voluntarily made.
3. Hanes argues that the trial court abused its discretion in refusing a downward dispositional departure. A trial court has broad discretion in determining whether to depart from the guidelines and this court will rarely interfere with that discretion because we recognize that trial courts are in the best position to determine whether reasons for departing exist. State v. Sherwood, 341 N.W.2d 574, 577 (Minn. App. 1983).
Departures from the sentencing guidelines are warranted only when substantial and compelling circumstances exist. Williams v. State, 361 N.W.2d 840, 843 (Minn. 1985). As a general rule, a dispositional departure must be supported by offender-related factors. State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). Among the factors a sentencing court may consider in justifying a downward dispositional departure are a defendant's prior record, cooperation, attitude while in court, and remorse. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
In this case, the court properly considered Hanes's prior record, including her failure to do 60 hours of community service for a previous conviction, her failure to attend probation meetings, and her failure to show up for scheduled court appearances in connection with a previous conviction. Furthermore, the court did not find "substantial and compelling circumstances" justifying a downward dispositional departure. Therefore, the court did not abuse its discretion in sentencing Hanes to the presumptive 68 months on one count of a second-degree controlled substance violation.
4. The trial court found the defendant guilty of both counts, but only sentenced on Count I. A defendant "may be convicted of either the crime charged or an included offense but not both." Minn. Stat. § 609.04, subd. 1(1) (1996). The statute bars multiple convictions under different sections of the same statute for acts committed during a single behavioral incident. State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989).
Hanes was convicted of violating Minn. Stat. § 152.022, subds. 1(3), 3(a) (1996) (possession with intent to sell more than 10 grams of methamphetamine) (Count I), and Minn. Stat. § 152.022, subds. 2(3), 3(a) (1996) (possession of 50 or more grams of methamphetamine) (Count II), which constitute different subdivisions of the same statute. Both violations arose out of the same behavioral incident. Therefore, we modify the disposition by vacating Count II.
Affirmed as modified.