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,
Juan Juarez Ortiz,
Filed August 6, 1999
Reversed and remanded
Dissenting, Harten, Judge
Todd County District Court
File No. K9-97-756
Mike Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gaylord A. Saetre, Todd County Attorney, Todd County Courthouse, 212 Second Avenue South, Long Prairie, MN 56347 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant seeks reversal of district court's denial of his motion to suppress evidence, arguing that the cash seized from him was the fruit of an illegal search. We reverse and remand.
Appellant Juan Juarez Ortiz was arrested during the execution of a search warrant obtained in connection with an investigation of a methamphetamine distribution ring by the West Central Minnesota Drug Task Force. As part of the investigation, an undercover officer made a controlled buy from two members of the distribution ring using $600 in "buy money." All of the cash used in the controlled buy was photocopied to provide a record of the serial numbers.
After completing the controlled buy, a no-knock warrant was obtained for an apartment in Long Prairie shared by two of the alleged drug dealers. The warrant permitted a search for narcotics, for U.S. currency, and for other evidence related to narcotics distribution and a search of the person of one of the alleged drug dealers, J.F.
Todd County Sheriff's Deputy Don Burns and Long Prairie Police Officer Duane Breiter arrived at the apartment building to execute the search warrant and saw, parked outside, the blue Camaro in which one of the alleged drug dealers had arrived at the site of the controlled drug buy earlier that evening. The officers entered the apartment and discovered a man asleep on the couch. The officers handcuffed him, "patted him down" for weapons, and secured the apartment. The officers then asked the man to identify himself and he answered, "Juan Ortiz." Nothing in the record suggests that the officers believed Ortiz gave them a false name. Deputy Burns asked Ortiz if he had any identification and he responded, "It's in my coat pocket, my wallet," and he looked down toward the front pocket of the coat he was wearing. Officer Breiter removed the wallet from Ortiz's coat pocket, an action to which Ortiz neither consented nor objected, and Deputy Burns testified that he was able to see a large amount of money protruding from the wallet even before Officer Breiter opened it. Deputy Burns also testified that seeing the money in the wallet made him suspicious because the $600 from the controlled buy had not yet been recovered. Further, he testified that the name "Juan Ortiz" or "Juano" was familiar to him because during the course of the investigation the officers had learned that Ortiz was possibly the supplier for the methamphetamine distribution ring.
Deputy Burns counted the money in Ortiz's wallet, found that it totaled $620, and retrieved the list of serial numbers from the buy money and compared it with the money from Ortiz's wallet. After determining that the serial numbers matched, Ortiz was arrested and charged with conspiracy to sell a controlled substance. Ortiz moved to have the evidence that led to his arrest suppressed as the fruit of an illegal search and seizure. The district court denied his motion, and a jury found him guilty of the charge. The court sentenced him to 86 months in prison.
Where the facts are not in dispute, we independently review the facts and determine, as a matter of law, whether the evidence should have been suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted); see also State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The fruits of an illegal search and seizure must be suppressed. State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992).
Ortiz argues that the state violated his right to be free from an illegal search and seizure when the officers removed his wallet from his coat pocket without his consent and without probable cause to believe he had violated the law. The state argues that the district court properly concluded that the officers had a right to search Ortiz for identification because he was found in suspicious circumstances. It is well-settled that officers may ask persons found in suspicious circumstances to identify themselves, but this right does not extend to a right to search in the absence of probable cause. State v. Fox, 283 Minn. 176, 178-79, 168 N.W.2d 260, 262 (1969) (concluding that officers had right to ask individual for identification but did not have right to search him without probable cause where he was found at apartment for which officers had search warrant). And being at a residence for which the police have a search warrant does not, in itself, create probable cause to search. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979) (providing that search or seizure of person must be supported by probable cause particularized with respect to that person). As the district court noted, (1) the blue Camaro's presence near the apartment and the earlier sighting of it in the area of the drug buy; (2) Ortiz's presence in the apartment of alleged drug dealers; and (3) the officer's recognition of the name "Juan Ortiz" as the possible supplier for the methamphetamine distribution ring raised the officers' suspicions. But without objective facts sufficient to lead the officers to believe that they would find items described in the warrant on Ortiz's person, we conclude that they did not have probable cause to search him. See Ybarra, 444 U.S. at 90-91, 100 S. Ct. at 342.
The district court also concluded that even if the officers did not have probable cause to search Ortiz, his "downward, sideways nodding gesture effectively constituted authorization or `consent'" to the search. "Consent must be received, not extracted." State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). This court, therefore, must ask "`whether a reasonable person would have felt free to decline the officer['s] requests.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991)). Here, Ortiz was handcuffed and lying on the floor at the time of the request. A reasonable person in this situation would not have felt free to decline the officers' request for identification. And "[f]ailure to object is not the same as consent." Id. (citation omitted). Further, "consent may not be lightly inferred, lest the exception to the warrant requirement emasculate the general rule." Watts v. State, 305 N.W.2d 860, 862 (Minn. 1981). Appellant's non-verbal response to the officers' question could be construed as mere acquiescence or an acknowledgment that he possessed identification, but it cannot be construed as consent to a search. See State v. George, 557 N.W.2d 575, 581 (Minn. 1997) (concluding that acquiescence is not synonymous with consent).
In cases where consent to a search is at issue, this court uses a totality-of-the-circumstances test. Dezso, 512 N.W.2d at 880. In Dezso, the supreme court stated that (1) although the officer's tone was civil, the officer persistently asked questions that were official in nature, while leaning toward Dezso; (2) the officer did not inform Dezso that he had a right to refuse the search; (3) the officer had no reasonable articulable suspicion of criminal activity relating to Dezso's wallet; and (4) Dezso's answers were ambiguous and did not clearly indicate that he consented to the search and seizure. Id. at 881. Based on these facts, the court concluded that under the totality of the circumstances, the consent given was not voluntary. Id.
In this case, (1) Ortiz was handcuffed and lying on the floor; (2) neither officer informed Ortiz that he had the right to refuse the search; (3) the officer did not have a reasonable, articulable suspicion of criminal activity pertaining to Ortiz's wallet; and (4) Ortiz's non-verbal response was ambiguous and did not clearly indicate that he consented to the search. We conclude, therefore, that under a totality-of-the-circumstances test, Ortiz did not consent to the search.
The district court reasoned that even if Ortiz did not consent to the search of his wallet, the officers could have searched him legally. See State v. Flynn, 285 N.W.2d 710, 719-20 (Wis. 1979) (holding that where officer approached individual engaged in suspicious activity and asked for identification and individual refused, officer could constitutionally search him for identification); see also 4 Wayne R. LaFave, Search and Seizure § 9.5(g) (3d ed. 1996). But Flynn, a Wisconsin Supreme Court case, is not precedent binding on this court. And even if we found the reasoning of Flynn persuasive, it is inapplicable here because Ortiz did not refuse to produce identification. See Flynn, 285 N.W.2d at 719-20 (limiting search to those circumstances in which suspect is first given opportunity to produce identification but refuses to do so). Further, both the United States Supreme Court and the Minnesota Supreme Court have explicitly refused to address the issue of whether a limited search for the purpose of identification is permissible during an investigatory detention. Flynn, 285 N.W.2d at 720, cert. denied, 449 U.S. 846, 101 S. Ct. 130 (1980); State v. White, 489 N.W.2d 792, 794 (Minn. 1992) (declining to decide search-for-identification issue); see also State v. Frazier, 318 N.W.2d 42, 44 n.1 (Minn. 1982) (stating that even if police could conduct limited identification search of person lawfully stopped for temporary investigative detention, it would not be justified without first giving defendant opportunity to produce identification).
The state argues, in the alternative, that even if there is a requirement that a person be given an opportunity to produce identification before an officer can conduct a limited identification search, the cash is admissible under the inevitable-discovery exception. See Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511 (1984) (adopting inevitable-discovery exception to exclusionary rule). The state reasons that if the officers had removed the handcuffs from Ortiz and requested that he produce identification, there would have been only two possible outcomes. First, if he refused, the officers would have proceeded as they did, and their actions would have been upheld under a Flynn analysis. But again, Flynn is not binding precedent here. Second, if Ortiz complied with the officers' request to produce identification, he would have been unable to do so without bringing the cash into plain view. See State v. Zanter, 535 N.W.2d 624, 632 (Minn. 1995) (stating that police have probable cause to seize items in plain view when facts available to officer would warrant person of reasonable caution to believe items may be evidence of crime). But this is pure speculation. We cannot conclude that the cash in Ortiz's wallet is admissible under the inevitable-discovery exception.
We conclude, based on our examination of the facts, that the officers did not have probable cause to search Ortiz and that he did not consent to the search for identification. The seized evidence, therefore, must be suppressed.
Reversed and remanded.
HARTEN, Judge (dissenting)
I believe that there was probable cause to arrest Ortiz for conspiracy to commit drug crimes before Officer Breiter took the billfold from Ortiz's jacket pocket.
The test of probable cause to arrest is whether 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.
State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999) (quotation and citation omitted). The following objective facts were known to the police before the wallet was seized. Collectively, these facts would have given a person of ordinary care and prudence an honest and strong suspicion that a crime had been committed.
1. The magistrate who issued the search warrant had already determined that there was probable cause to believe that someone in the subject apartment was engaged in illegal drug trafficking.
2. The two known occupants of the apartment had been named by a CRI as the local source and local distributor of methamphetamine in the Long Prairie area.
3. When the police approached the apartment to execute their search, they noticed a dark blue Camaro parked near the north entrance to the staircase leading up to the apartment. Earlier that day, that car had been in the area where an undercover agent had completed a controlled buy of methamphetamine from one of the residents of the apartment; in fact, that resident had been transported to site of the transaction in that car.
4. That resident had been arrested but the other resident was still at large.
5. The arrest of one resident and the obtaining of a search warrant resulted from a several months' police investigation. During that investigation, the police learned that the methamphetamine supplier for the apartment residents was a person named "Juano."
6. Upon entering the apartment pursuant to the warrant, the police discovered a man lying on the living room couch who apparently had been sleeping. When asked what he was doing there, the man said he was waiting for a friend. As the officers secured him, one officer asked the man his name. He responded, "Juan," or possibly, "Juan Ortiz."
These factors furnished probable cause to arrest Ortiz for conspiracy; the seizure of his billfold could be justified as incident to his arrest.
Courts have long recognized the constitutional reasonableness of searches subsequent to arrest. * * * The search "incident" to arrest has been extended to include a search "precedent" to arrest if the officer has probable cause to arrest at the time of the search.
Id. at 420. Because the district court correctly refused to suppress evidence of the billfold and its contents (albeit on different grounds), I respectfully dissent.