This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Salvador Montes-Chacon,


Filed January 26, 1999


Shumaker, Judge

Renville County District Court

File No. K1-96-755

Michael A. Hatch, Attorney General, James Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131; and

Thomas J. Simmons, Renville County Attorney, Commerce Building, P.O. Box D, Olivia, MN 56277 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.



Appellant Salvador Montes-Chacon alleges that his constitutional rights were violated during a warrantless police search undertaken with coerced consent and that the trial court erred when it admitted appellant's statements made after he was in custody but without the protection of Miranda warnings. We affirm.


The Renville County Police had appellant Salvador Montes-Chacon's home under surveillance from mid-July to October 5, 1996. They suspected appellant was involved in drug trafficking because neighbors complained about frequent short-term visitors to appellant's home and because he was involved in a controlled substances incident in 1995. On October 5, 1996, the number of short-term visitors to the house led the police to suspect drugs were on the premises. On October 6, 1996, drug task force agents brought a police dog to appellant's home to investigate. Appellant's brother opened the door and summoned appellant from the bedroom. When appellant appeared, the task force agent identified himself as a police officer and showed his badge. After appellant consented to a search, the task force agent discovered cocaine, showed it to appellant, who admitted it belonged to him and that he used and sold cocaine. At the conclusion of the search, the officers arrested appellant.

The trial court ruled the search and interrogation of appellant constitutional and admitted the drugs and appellant's statements into evidence. The jury convicted appellant of second-degree controlled substance crime. Appellant appeals his conviction.


"In reviewing factual determinations by the trial court bearing on a motion to suppress on Fourth Amendment grounds, we follow the `clearly erroneous' standard." State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quoting State v. Kwam, 336 N.W.2d 525, 528-29 (Minn. 1983)).

Generally, the police are required to have a warrant to conduct a search of a person's home. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980). However, the police may conduct a search without a warrant with the homeowner's consent. State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (citing Payton, 445 U.S. at 576, 590, 100 S. Ct. at 1374, 1382). Whether consent is voluntary is a fact question to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059 (1973).

First, appellant contends that he was coerced into giving his consent, and therefore, evidence obtained in the search should be suppressed. The trial court found that appellant consented to the search without duress and, therefore, the items were legally seized.

A review of the record shows that the arresting officers had appellant's voluntary consent to search his home. The officers made three separate requests to search the home and then appellant consented. Appellant alleges that his equivocal responses were an effort to fend off the search. But a review of the tape transcript does not support appellant's position because much of appellant's responses to these questions was inaudible. Cf. State v. Dezso, 512 N.W.2d 877, 880-81 (Minn. 1994) (search is not voluntary where motorist's responses to trooper's request to search were equivocal and in the nature of an effort to fend off a search). Furthermore, it is just as likely that the agents were merely confirming that the search was voluntary. Because credibility issues are beyond the scope of our review, we defer to the fact-finder. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).

Second, appellant points to the number of officers in his home as being coercive. But appellant has failed to establish that his consent was coerced due to the presence of more than one officer and a police dog. Third, appellant testified that he was unaware of his right to refuse to consent to the search. However, it is not necessary for appellant to know that he had a right to refuse to consent to the search of his home. See Schneckloth, 412 U.S. at 249, 93 S. Ct. at 2059. Fourth, appellant argues that, because he is a Spanish-speaking immigrant with limited English skills and the equivalent of a high school education, he was particularly susceptible to coercive actions. But the record shows the agents spoke to appellant in both Spanish and English. In reviewing factual determinations made by the trial court, we find that the findings of the trial court are reasonably supported by the evidence. Where a trial court uses the proper legal standard and makes a fact-specific determination, we give considerable, but not unlimited, deference to the trial court's ruling. Minnesota v. Olson, 495 U.S. 91, 100-01, 110 S. Ct. 1684, 1690 (1990).

Finally, appellant argues that the police violated his Fifth Amendment rights by failing to read the Miranda advisory once he was in custody. But, on-the-scene questioning, where the officers are simply trying to get a preliminary explanation, does not require a Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S. Ct. 1602, 1629-30 (1966). See, e.g., State v. Martin, 297 Minn. 470, 212 N.W.2d 847 (1973); State v. England, 409 N.W.2d 262 (Minn. App. 1987). Miranda uses an objective test to determine custody: would a reasonable person, in the same circumstances, believe that he or she was either under formal arrest or that their freedom of movement was restricted to a degree associated with formal arrest. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998) (citing Stansbury v. California, 511 U.S. 318, 324, 114 S. Ct. 1526 (1994)) .

When appellant made incriminating statements he was not in custody. He was not handcuffed or physically restrained when the officers searched his home. Appellant was arrested after the cocaine was discovered and after he admitted the cocaine belonged to him. Furthermore, appellant failed to point to any factor that would give a reasonable person grounds to believe he was in custody prior to his arrest.

We find that appellant was not entitled to a Miranda warning when he made the statements because he was not in custody. Therefore, we conclude that the trial court did not clearly err.