This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Kirk Lenell Munson,


Filed February 24, 1998


Foley, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Ramsey County District Court

File No. K7-96-3746

Hubert H. Humphrey III, 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 Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.


FOLEY, Judge

Appellant challenges his conviction of controlled substance crime in the first degree, arguing the district court erred in refusing to suppress the evidence. The record supports the trial court's findings. We affirm.


On November 17, 1996, investigator Robert Kosloske received a call from a confidential, reliable informant (CRI) informing him that a Jeep-type vehicle, carrying a substantial amount of crack cocaine, would be arriving in St. Paul on I-94 and would be stopping at 468 Case Avenue. Officer Matthew Toupal and his partner Jerry Vick drove to the area of 468 Case to wait for a vehicle that matched the description given by the CRI. Soon thereafter, the vehicle, carrying three males, pulled in front of 468 Case and stopped. The officers then activated their lights, pulled behind the vehicle, and ordered the occupants out of the car. The last individual removed from the vehicle was appellant Kirk Munson.

After the occupants were secured in the squad cars, the officers called for a narcotics dog to search the vehicle. The dog immediately alerted the officers to the glove compartment, where they recovered a small amount of suspected marijuana. Meanwhile, Officer Thomas Bergren went to the rear of the vehicle and discovered what he believed to be cocaine. At this time, appellant was placed under arrest and transported to police headquarters.

Once appellant arrived at the St. Paul headquarters, he was read his Miranda rights and interrogated. The officers used a microcassette recorder to tape the entire interview. Appellant initially told officers that he "would rather talk to a lawyer." Soon thereafter, however, appellant revoked his right to an attorney and assumed responsibility for transporting the drugs to Minnesota.

The St. Paul Crime Lab confirmed that the substance the officers removed from the back of the vehicle was cocaine, totaling 2.81 pounds (1,279 grams). Appellant waived his right to a jury and was tried by the court on stipulated facts. After taking the matter under advisement, the trial court found appellant guilty of violation of controlled substance crime in the first degree.


A trial court's determination of probable cause as it relates to warrantless searches is subject to de novo review by this court. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citations omitted). Appellant claims the trial court committed reversible error when it refused to suppress the evidence seized from the vehicle in which appellant was a passenger. We disagree.

Officers are justified in searching a vehicle without a warrant if they have "probable cause to believe that the vehicle contains evidence of a crime" and "face the exigency that the vehicle may disappear by the time a warrant is obtained." State v. Hiler, 376 N.W.2d 760, 762 (Minn. App. 1985) (citing Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S. Ct. 1975, 1980-81 (1970)). Moreover, if officers have probable cause to search a vehicle, they are justified in searching every part of a vehicle that may contain evidence of a crime. United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 2173 (1982). Probable cause is determined by objective facts that would lead a reasonable person to believe that a crime has been committed and that the defendant committed it. State v. Evans, 373 N.W.2d 836, 838 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985). Furthermore, probable cause can be created by hearsay information that an informant supplies to a police officer. Illinois v. Gates, 462 U.S. 213, 246, 103 S. Ct. 2317, 2336 (1983).

In this case, the CRI, whose information proved reliable in the past, gave Kosloske detailed facts about the incident in question. The information contained a description of the vehicle, its licensing, and its ownership status. The occupants were described and identified by name. Furthermore, the vehicle's destination was provided, as well as the time of delivery. The officers corroborated and verified all of this information.

Thus, the informant's proven reliability, the contemporaneous corroboration, and the exigency created as a result of the vehicle's mobility, clearly established probable cause to search the vehicle. Id. The trial court did not err in denying appellant's motion to suppress the cocaine seized from the vehicle.

Next, appellant claims his statements made at police headquarters must be suppressed because his right to counsel was violated. The trial court found the statements were admissible because appellant had reinitiated the conversation after he waived his right to counsel. Upon review, this court will reverse a trial court's findings leading to the admissibility of statements if they are clearly erroneous. State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988).

It is well established that an interrogation must stop once the individual in custody exercises the right to remain silent or the right to speak with an attorney. State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989). If the accused, however, initiates further "communication, exchanges, or conversations" with police, he essentially waives his right to counsel. State v. Campbell, 367 N.W.2d 454, 459 (Minn. 1985) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981)). Nevertheless, courts indulge in every reasonable presumption against waiver unless the state can show that the defendant understood his right to counsel and voluntarily waived that right. Giddings v. State, 290 N.W.2d 595, 597 (Minn. 1980).

In this case, appellant was aware of his right to counsel and what it meant to revoke that right. After signing a form indicating that he understood his rights, officers asked appellant if he wanted to talk. Appellant replied, "I think I'd rather talk to a lawyer." At this point the officers stopped talking to appellant. While appellant was still in the room, however, the officers discussed the next steps of their investigation. At no point did the officers direct their statements at appellant. Appellant then interrupted and asked a question. The officers advised appellant that he must revoke his right to counsel in order for them to be able to speak to him. The officers then informed appellant exactly what it meant to revoke his right to counsel, emphasizing that it was appellant's decision. Soon thereafter, appellant agreed to talk with the officers, stating, "I'll talk to you, I revoke it." As a result, even though appellant initially stated that he wanted counsel, he effectively waived that right.

Alternatively, appellant argues that his statements should have been suppressed because the officers violated the recording requirement of State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Whether a substantial Scales violation has occurred is a legal question that this court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

Scales requires that all custodial interrogations be recorded. Scales, 518 N.W.2d at 592. Statements will be suppressed, however, only if the Scales violation is deemed substantial. Critt, 554 N.W. 2d at 95-96 (holding "gap" in recording of defendant's statement did not violate Scales requirement because it did not significantly deprive trial court of accurate record and "gap" in tape was not done intentionally); see also, State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995) (holding defendant's confession admissible even though officers failed to record entire conversation.).

In this case, portions of the recording of appellant's statement are unintelligible. Nevertheless, the majority of what appellant said can be transcribed and understood. The problems with the recording in no way hindered the trial court's findings. Furthermore, no

evidence suggests that the unintelligible parts of the recording were done intentionally. Based on these facts, no Scales violation occurred.