may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Rodney Henkemeyer,
Filed July 27, 1999
Ramsey County District Court
File No. K5983037
Barry V. Voss, Timothy J. Hickman, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.
Appellant challenges the district court's refusal to suppress evidence found during a search of appellant and his car. We affirm.
In the early morning hours of August 18, 1998, two St. Paul Police officers, who were responding to a reported domestic altercation, saw a car speeding away as they approached the scene. They followed the vehicle and observed that it failed to stop at a stop sign. They stopped the vehicle, and Officer O'Reilly approached the car to talk to the driver, appellant James Rodney Henkemeyer. The officer reviewed appellant's driver's license and asked him if he had anything illegal in the car. He responded that he did not. The officer then asked appellant if she could search him. There is conflicting testimony as to appellant's response.
O'Reilly asked appellant to step out of the car, searched him, and found drugs in his pocket. The officers then searched the car and found drug paraphernalia.
Appellant was charged with a fifth-degree controlled substance crime. Minn. Stat. § 152.025, subd. 2 (1) (1998). He moved to suppress the drugs and paraphernalia as fruit of an illegal search. Appellant and his passenger testified at the omnibus hearing that appellant did not consent to the search. The police officers testified that appellant did consent. The district court, weighing the evidence, found that appellant validly consented to the search and, therefore, refused to suppress the evidence.
Appellant was convicted of a fifth-degree controlled substance crime and sentenced. This appeal followed.
The constitutions of the United States and Minnesota prohibit unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. The remedy for violations of this rule is to suppress evidence illegally obtained. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). A warrantless search is not reasonable unless it meets a recognized exception by being incident to an arrest, accompanied by exigent circumstances, or granted by consent. State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).
The district court refused to suppress the evidence because it found that appellant gave valid consent to the search. The parties agree that consent is the only valid basis for this search. Whether there was free and voluntary consent to a search is a factual question based on the totality of the circumstances and will not be reversed unless clearly erroneous. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994); State v. Vail, 274 N.W.2d 127, 133 (Minn. 1979); see also United States v. Heath, 58 F.3d 1271, 1276 (8th Cir. 1995) (Minnesota federal district court's finding of consent to search subjected to clearly erroneous standard).
The district court's finding is supported by the testimony of the two police officers. Their testimony conflicted with that of appellant and the passenger in his car, who both testified that appellant did not consent. This is a classic case of a controversy in testimony that requires the district court to determine the credibility and weight of testimony. This court gives due regard to credibility determinations in an omnibus hearing. State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989).
Appellant argues that police testimony alone is not sufficient evidence to support a finding of consent when it is contradicted by the defendant's testimony because, in his words, "[i]t is easy to determine who will be believed." But the district court has traditionally had to weigh conflicting testimony when determining whether there was consent by a criminal defendant. See State v. Blacksten, 507 N.W.2d 842, 847 (Minn. 1993) ("In our view, consent is a credibility issue."). The district court's finding of consent is supported by the record and was not clearly erroneous.
There is no indication from the record, and appellant does not appear to allege, that consent was coerced or otherwise involuntary. See State v. Lotton, 527 N.W.2d 840, 843 (Minn. App. 1995) (consent must be voluntary), review denied (Minn. Apr. 18, 1995).
The drugs found on appellant were the fruit of a reasonable search and gave the police probable cause to search the car. See State v. Darnall, 498 N.W.2d 295, 295 (Minn. App. 1993) (lawful discovery of contraband in vehicle gave probable cause to search entire vehicle); State v. Johnson, 277 N.W.2d 346, 349 (Minn. 1979) (probable cause to search exists if there are sufficient facts and circumstances for reasonable person to believe vehicle contains contraband).
In his brief, appellant argues that the recording requirement of State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), should be applied in situations where police are attempting to obtain consent for a search. We do not consider this argument because it was not made to the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.