This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-797

State of Minnesota,
Appellant,

vs.

Wesley James Berntson,
Respondent.

Filed December 7, 1999
Affirmed; motion granted
Shumaker, Judge

Itasca County District Court
File No. K1981874

Mike Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

John J. Muhar, Itasca County Attorney, Heidi M. Pertlicek, Assistant County Attorney, Itasca County Courthouse, 123 N.E. Fourth Street, Grand Rapids, MN 55744 (for appellant)

K. Scott Belfry, 6 Thirteenth Street, Cloquet, MN 55720 (for respondent)

 

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant State of Minnesota challenges the district court's suppression of evidence and dismissal of drug charges against respondent Wesley James Berntson. Appellant concedes that the police illegally obtained marijuana, a pipe, and admissions from respondent during a traffic stop. Nevertheless, appellant contends that the illegality did not taint other incriminating evidence the police obtained from searching respondent's car. We disagree with appellant's contention, and we affirm. We also grant respondent's motion for attorney fees.

FACTS

Law enforcement officers received a tip from an informant that Wesley James Berntson would be driving with a revoked driver's license from Grand Rapids to Duluth and would have methamphetamine in his possession.

Officers saw Berntson driving his car. On the pretext of stopping him because of his revoked license, they stopped him so that they could search for illegal drugs. After noting that Berntson's driver's license was under revocation, a deputy sheriff had him step out of his car. The deputy frisked him and felt a hard object in his pocket. When the deputy inquired about the object, Berntson said it was a pipe and some marijuana. The deputy then placed Berntson in the back seat of the squad car, told him he was not under arrest, and questioned him about drugs in the car. Berntson initially denied and then later admitted that he had drugs in the car.

The deputy summoned a police canine unit to the scene. Berntson agreed that officers could search the car with the unit's dog. The dog sniffed various areas of the car and indicated that drugs were present. When officers opened the trunk, they found a small safe inside. The dog signaled the presence of drugs in the safe. The officers then towed and locked the car and obtained a warrant to search it. The search produced methamphetamine and drug paraphernalia.

The state charged Berntson with three controlled-substance crimes and with driving after revocation of his driver's license. He moved to suppress the evidence and to dismiss the drug charges. After an omnibus hearing, the district court granted the motions, ruling that the pat-down and vehicle search were unlawful and that the police illegally obtained admissions from Berntson.

The state moved for a reconsideration of the court's ruling. In doing so, the state conceded that the pat-down was illegal and that Berntson's admission as to the presence of drugs in his car and his permission to search with the dog were unlawful. Nevertheless, the state argued that information obtained from the trained drug-detection dog was sufficient, independently of the tainted evidence, to support the issuance of a search warrant. The court disagreed and reaffirmed its previous order suppressing evidence and dismissing the drug charges. The state challenges the ruling on its reconsideration motion.

D E C I S I O N

"When reviewing the legality of a seizure or search, an appellate court will not reverse the trial court's findings unless clearly erroneous or contrary to law." In re G.M., 560 N.W.2d 687, 690 (Minn. 1997). A trial court's determinations of reasonable suspicion as it relates to limited investigatory stops conducted under the authority of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and probable cause as it relates to warrantless searches are subject to de novo review. Id.

The pat-down led to the deputy's discovery of a hard object in Berntson's pocket. This led to Berntson's admission that he had marijuana in his pocket. This admission, in turn, led to the deputy's questions and Berntson's eventual admission that he had drugs in the car. The state concedes that all of this is tainted evidence.

The state would have us overlook the tainted evidence and instead focus solely on the activities of the drug-detection dog. The state's contention is that the dog's sniff was not a search, but rather was information that reliably led to a proper warrant and a lawful search.

However, the critical question is whether the dog's sniff, the information derived from the sniff, and the drugs uncovered in the search were fruits of the poisonous tree.

The "fruits of the poisonous tree" doctrine requires the exclusion of evidence obtained after a violation of the Fourth Amendment, unless routine investigative procedures independent of the violation would have led the police to that evidence. United States v. Crews, 445 U.S. 463, 470-72, 100 S. Ct. 1244, 1249-50 (1980). The sanction of suppression applies to any "fruits" of a constitutional violation. The primary purpose of the exclusionary doctrine is to deter police misconduct. State v. Warndahl, 436 N.W.2d 770, 776 (Minn. 1989). By excluding tainted evidence, courts "seek to eliminate the temptation for a police officer with less than probable cause to attempt an illegal search." State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998).

The test used in applying this doctrine is whether the police obtained the later evidence by exploiting the primary illegality or by independent means unfettered by the primary taint. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963). Many factors bear on the application of this test, including

the temporal proximity of the illegality and the fruit of the illegality, the presence of intervening circumstances, the purpose and flagrancy of the misconduct, [and] the likelihood that the evidence would have been discovered by legal means.

State v. Seefeldt, 292 N.W.2d 558, 560 (Minn. 1980).

The evidence seized after the dog sniffed Berntson's car was part of an unbroken chain stemming directly from the primary illegality. There were no intervening circumstances to purge the primary taint. The police summoned the canine unit after the illegal pat-down, the discovery of drugs, and the questioning of Berntson. There is no evidence that the presence of the dog was coincidental with or separate from the taint. There is no evidence from which to infer that the drugs and paraphernalia would have been discovered independently by legal means. Under these facts, the evidence did not have an independent, untainted source. The district court did not err in suppressing the evidence.

Respondent requests attorney fees and expenses incurred in defense of this appeal. See Minn. R. Crim. P. 28.04, subd. 2(6) (defendant responding to pretrial prosecution appeal entitled to reasonable attorney fees and expenses). There has been no response to the motion. In light of the documentation submitted by counsel and the awards made by this court in similar cases, respondent is awarded $1,700 for attorney fees.

Affirmed; motion granted.