STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Basim Asmar Shakir-Bey,
Filed December 21, 1999
Hennepin County District Court
File No. 97080405
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant Basim Asmar Shakir-Bey was convicted of three counts of first-degree burglary pursuant to Minn. Stat. § 609.582, subd. 1(c) (1996), and multiple counts of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342 (1996), for the burglaries and sexual assaults of three women. He argues on appeal that the district court: (1) erred in refusing to suppress evidence because the police exceeded the scope of the search warrant; and (2) abused its discretion in sentencing him to consecutive terms and in sentencing him as a repeat sex offender. We affirm.
Police obtained a search warrant to search appellant's person and his residence. Appellant contends the police exceeded the scope of the warrant by approaching him at his place of employment. We disagree.
The police obtained a search warrant to search appellant's residence and appellant's person for certain clothing items, a butcher knife, a flashlight, and a "known photograph" of appellant. The warrant and supporting papers described appellant by name, birth date, and physical description. The plain language of the warrant did not require appellant to be at his residence when searched. It was reasonable to believe that appellant could possess the named items on his person, particularly the clothing, regardless of his location. The record indicates the police had probable cause to search appellant's person in addition to probable cause to search his residence, and executing the warrant at his place of employment was not used as a pretext for a warrantless search of the premises. Therefore, we conclude that approaching appellant at his place of employment was reasonably within the scope of the warrant.
Further, the warrant reasonably allowed the officers to detain appellant for the limited purpose of taking his photograph at the sheriff's office. Warrants to obtain "one known blood sample" allow the transportation of the defendant for the limited purpose of obtaining the sample. See King v. State, 562 N.W.2d 791, 793 (Minn. 1997) (stating that officers executed search warrant for blood sample by bringing defendant to local medical center). Similarly, the phrase "one known photograph" is a term of art allowing the officers to transport appellant for the limited purpose of taking a suitable lineup photograph.
Finally, the district court did not clearly err in determining that the search of appellant's backpack was a valid search for officer safety. In reviewing the propriety of a frisk, the trial court's findings will not be reversed unless they are clearly erroneous. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). The district court found that appellant asked to bring his backpack with him to the sheriff's office and that no one prompted him to request his bag. Thus, appellant invited the search by asking for his backpack. The police officer's uncontroverted testimony was that he searched the bag prior to entering the squad car to make sure there was nothing that could be used as a weapon. Because the search warrant indicated appellant had previously armed himself with knives, we conclude the search was a valid search for officer safety. See State v. Wynne, 552 N.W.2d 218, 222 (Minn. 1996) (stating that a search of defendant's purse may have been a valid search for officer safety if she had requested that the officers carry her purse).
Under the repeat sex offender statute, the court is required to impose a sentence of not less than 30 years for convictions under Minn. Stat. § 609.342, subd. 1, clause (c), (d), (e), or (f), if the court determines that:
(i) the crime involved an aggravating factor that would provide grounds for an upward departure under the sentencing guidelines other than the aggravating factor applicable to repeat criminal sexual conduct convictions; and
(ii) the person has a previous sex offense conviction under section 609.342, 609.343, or 609.344.
Minn. Stat. § 609.109, subd. 4 (1998).
Appellant argues that the district court erred in sentencing him under this statute because no aggravating factors are applicable to his conduct. We disagree. Generally, in determining whether to depart in sentencing, a court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). The district court is accorded broad discretion, and this court will not interfere absent a
strong feeling that the sanction imposed exceeds or is less than that "proportional to the severity of the offense of conviction and the extent of the offender's criminal history."
State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987) (citations omitted), review denied (Minn. Apr. 23, 1987).
Here, multiple aggravating factors supporting a departure are present. Both T.W.'s and M.W.'s privacy was invaded. See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (holding that invasion of victim's privacy supported upward departure where victim was sexually assaulted in her child's bedroom), review denied (Minn. Jan. 16, 1992). Appellant sexually assaulted T.W. while she slept in a bedroom in her aunt's home, where she was staying for the summer. M.W. was sexually assaulted in her own bed. A district court may consider invasion of privacy in burglary cases as long as the invasion is not an essential element of the charge. State v. Pierson, 368 N.W.2d 427, 436 (Minn. App. 1985) (holding entry into home invaded victim's privacy where statute only required invasion of a building, not a dwelling). Appellant's invasion was greater than that required for his burglary convictions.
The aggravating factors of multiple penetrations and particular cruelty also apply to appellant's conduct. See State v. Davis, 546 N.W.2d 30, 36 (Minn. App. 1996) (holding multiple penetrations and particular cruelty supported an upward departure), review denied (Minn. May 21, 1996). Appellant threatened to kill T.W. if she made noise, threatened to anally rape her if she was not quiet, asked her personal questions, performed multiple types of penetration, and told her that if she called the police he would kill her the next time he saw her.
Appellant argues that the consecutive sentences exaggerate the criminality of his conduct. We disagree. Multiple current felony convictions for crimes against different persons may be sentenced consecutively. Minn. Sent. Guidelines II.F.; State v. Cermak, 365 N.W.2d 238, 239 n.1 (Minn. 1985). The court may reverse or modify consecutive sentences that exaggerate the criminality of a defendant's conduct, but this limitation is generally applied only to sentences imposed for a single behavioral incident where there are multiple victims. See, e.g., State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (holding sentence for assaults against several victims in same incident exaggerated criminality). This is a case of consecutive sentencing for separate behavioral incidents against separate victims where concurrent sentences may understate the criminality of appellant's conduct. See State v. Cermak, 442 N.W.2d 822, 824 (Minn. App. 1989) (stating that concurrent sentences for defendant's five first-degree criminal sexual conduct charges would fail to recognize the severity of his separate assaults against each individual).