This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-813

 

Brett Owen Gottlieb, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 24, 2002

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 00035012

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy J. Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant).

 

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

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Brett Owen Gottlieb was convicted of first-degree aggravated robbery in violation of Minn. Stat. § 609.245 and was sentenced to 58 months in prison, a $1,000 fine, and $600 in restitution.  Appellant sought postconviction relief, but was denied.  Appellant now challenges the order denying postconviction relief, alleging that (1) appellant’s response to a police officer asking what was in appellant’s pockets should have been suppressed at trial because the question was not preceded by a Miranda warning, and (2) the trial court’s admission of appellant’s response to a police officer asking how much cash appellant had was not harmless error.  We affirm.

FACTS

On April 8, 2000, Julian Mendoza was outside his apartment building.  As he waited to enter the building, two men robbed him, one of whom Mendoza later identified as appellant Gottlieb.  Mendoza recognized appellant because they both worked at the Embassy Suites Hotel in Bloomington.

At trial, Mendoza testified that appellant threatened him and robbed him of his billfold, cell phone, and keys.  Mendoza also testified that when he went to work the next day, a coworker in the kitchen returned Mendoza’s billfold and cell phone.  The coworker told Mendoza that appellant had turned in the items.  Mendoza’s credit cards and driver’s license were still in the wallet, but all of the cash (approximately $600) was missing.

On April 10,2000,Richfield police investigator Greg Peterson supervised appellant’s arrest.  Officer Peterson testified that he booked appellant into jail.  As part of the booking process, Officer Peterson conducted an inventory search of appellant’s property.  Without warning appellant of his Miranda rights, Officer Peterson asked appellant what was in his pockets.  Appellant responded that he had some cash.  Officer Peterson then asked how much cash.  Appellant replied that he had $46.  Officer Peterson searched appellant and found $46 in one of appellant’s pockets and two $100 bills in another pocket.

The jury found appellant guilty of first-degree aggravated robbery.  The court sentenced him to 58 months in prison.  Appellant filed a petition for postconviction relief in the district court seeking a new trial.  Appellant challenged the trial court’s refusal to suppress the answers he gave to Officer Peterson during the booking process.  Appellant contended that his answers to Officer Peterson's questions should have been suppressed because appellant had not been warned of his Mirandarights prior to being questioned.  Respondent argued that Officer Peterson’s questions were simply routine booking questions used for inventorying purposes and to ensure the officer’s safety.

The postconviction court denied relief, finding that the first of the two questions was a routine booking question, which did not require a Miranda warning. The court found that the second question was not a routine booking question, but concluded that the admission of appellant’s response to the second question was harmless error.  The postconviction court found that there was sufficient evidence to conclude that the jury did not base its verdict on this error because the jury was left to base its decision on the veracity of the witnesses.  This appeal followed.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).  A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted).  

The denial of a new trial by a postconviction court will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postconviction court’s findings.

 

State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000) (citation omitted).

 

            Appellant argues that his response to Officer Peterson’s first question, asking what was in appellant’s pockets, was erroneously admitted at trial because:  (1) the officer failed to give appellant a Mirandawarning; (2) the question was open-ended and went beyond the purpose of ensuring the officer’s safety; and (3) the officer should have known the question was reasonably likely to elicit an incriminating response from appellant.  The postconviction court held that asking what was in appellant’s pockets was a routine booking question because the question was posed for inventorying purposes and to ensure the officer’s safety.  The postconviction court also found that appellant’s response was admissible at trial because routine booking questions are exempted from the Mirandarule.  On these facts, we agree.

[T]he prosecution may not use statements, whether Exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Miranda v. Arizona,384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).  Custodial interrogation is defined as

questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

 

Id. at 444, 86 S. Ct., at 1612.

            However, a Mirandawarning is not necessary before asking routine booking questions because “booking questions have value to the criminal process independent of any tendency to uncover admissions.”  State v. Widdell, 258 N.W.2d 795, 797 (Minn. 1977) (citation omitted).  To move from routine booking questions to custodial interrogation, the test is whether the police should have known they were reasonably likely to elicit an incriminating response from the suspect.  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980).

            Asking appellant what was in his pockets had independent value to the criminal process.  Officer Peterson testified at appellant’s trial that booking a detainee into jail entails gathering general information, such as the detainee’s home phone number and home address.  The booking procedure also includes inventorying the detainee’s property, including jewelry, cash, or anything else that might be in the detainee’s pockets or anywhere else on his person.  Officer Peterson’s question regarding the contents of appellant’s pockets was posed to assist in this inventorying process.  Additionally, appellant concedes that to protect the officer’s safety, an officer may ask a detainee what is in his pockets to prevent being cut by a needle or some other sharp object while searching the detainee’s pockets.

            We disagree with appellant’s argument that the contents of a detainee’s pockets are so directly linked to aggravated robbery that a reasonable officer should have known that asking appellant what was in his pockets was reasonably likely to elicit an incriminating response.  See United States v. Reyes, 225 F.3d 71, 77 (1st Cir. 2000) (holding that seemingly innocuous questions regarding a suspect’s name, date of birth, or social security number fall outside of the routine booking exception and are subject to the Miranda rule if the information sought is directly linked to the suspected offense).  Here, Officer Peterson booked appellant on charges of aggravated robbery.  We can find no hidden nexus or subterfuge on the part of Officer Peterson that would preclude him from asking appellant about the contents of his pockets unless he first preceded the question with a formal reading of the Miranda warning.

            We disagree with appellant’s argument that the contents of appellant’s pockets are an essential element of aggravated robbery.[1]  See United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir. 1983) (holding that Immigration and Naturalization Service agent’s questions about defendant’s citizenship were not routine booking questions where defendant’s alienage was essential element of crime agent had reason to suspect).  We conclude that it was not an abuse of discretion for the postconviction court to determine that appellant’s response to the first question asking what was in his pockets was properly admitted at his trial.

            Appellant next contends that the admission of his response to Officer Peterson’s second question asking how much cash he had was not harmless error.  Appellant argues that the admission of appellant’s apparent concealment of the money is evidence of his consciousness of guilt and that the jury may have relied on this evidence in finding appellant guilty of aggravated robbery.  Appellant claims that it is simply impossible to conclude with confidence that the jury’s verdict was surely unattributable to this evidence and, therefore, he is entitled to a new trial.

            The postconviction court found that Officer Peterson’s question about how much cash appellant had was not as innocuous as the first question because the officer knew that a large amount of money had been stolen, including the denomination of the bills, and the officer should have known that the question was reasonably likely to elicit an incriminating response from appellant.  The postconviction court determined that appellant’s response to Officer Peterson’s second question was erroneously admitted at trial because the second question was not a routine booking question, but that this admission was harmless error.

            We conclude that Officer Peterson’s second question also falls under the routine booking exception to the Miranda rule.  Officer Peterson’s question asking how much cash appellant had did not prejudice appellant.  Appellant could have simply replied that he did not know how much money was in his pockets.  People often carry loose bills on their person without knowing exactly how much money they are carrying.  Alternatively, appellant could have responded to the officer’s question by telling the truth.  There would have been no prejudice to appellant if he would have asserted that he had $246 in his pockets.  In this day and age, $246 is hardly enough money to raise an inference that it has to be ill-gotten money.  It was appellant’s decision to lie to the officer.

            Additionally, no matter what appellant said to the officer in response to the second question, the money would have been discovered through the booking procedure.  Before appellant was booked, he would have had to empty his pockets under the standard rules of checking people into jail.  At that time, Officer Peterson would have discovered the two $100 bills.  Regardless of appellant’s response to the question, the officer was required to record the amount of cash that he found on appellant’s person.  This is not a case of a police officer deliberately using the information he knows to ask a detainee a series of questions specifically to elicit an incriminating response.  In such a case, a Miranda warning would be required.  This case is simply one of an officer using the booking process to inventory a detainee’s property.  That routine questions occasionally turn up relevant evidence does not, by itself, prove that the questions were not routine.  Also, the relevancy of the evidence, by itself, is no proof that the questions were unethical and underhanded.

The postconviction court found that Officer Peterson’s question asking how much cash fell outside of the routine booking exception to the Mirandarule.  While we disagree with the postconviction court’s analysis on this issue, we agree with the postconviction court’s ultimate decision to deny appellant postconviction relief.  The postconviction court found that the admission of appellant’s response to the second question was harmless error. Because we find that asking appellant how much cash he had on his person during the booking process also falls under the booking-question exception to the Miranda rule, there was no error.

            In summary, the postconviction court did not abuse its discretion when it denied appellant’s petition for postconviction relief.

Affirmed.