STATE OF MINNESOTA

COURTS OF APPEALS

A03-1669

State of Minnesota,

Respondent,

vs.

Daniel Conley,

Appellant.

Filed October 12, 2004

Affirmed in part and remanded

Gordon W. Shumaker, Judge

Ramsey County District Court

File No. K8-03-1055

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Melissa M. Saterbak, certified student attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

Michael C. Davis, Special Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Harten, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

GORDON W. SHUMAKER, Judge

On appeal from his conviction and sentence for first-degree criminal sexual conduct, soliciting to practice prostitution, and second-degree assault, appellant argues that the district court erred in denying his motion to suppress evidence he asserts was taken in violation of his constitutional rights and that the district court abused its discretion in sentencing. Appellant also asserts in his pro se brief that the probable cause determination was made in violation of caselaw and that respondent’s disclosure practice violated Minn. R. Crim. P. 9.01 as untimely. Because the district court did not err in its evidentiary ruling, the probable cause determination was appropriate, and appellant fails to show how respondent violated Minn. R. Crim. P. 9.01, we affirm. Because Blakely v. Washington, 124 S. Ct. 2531 (2004), may apply to sentencing in this case, we remand for consideration of this matter.

FACTS

Appellant Daniel Conley lived with C.M.J. and her two daughters in C.M.J.’s St. Paul apartment. C.M.J. testified that on Saturday, March 22, and Sunday, March 23, 2003, Conley attempted to force her into prostitution, threatened to kill her and her family members, held her hostage, and abused her repeatedly.

Eventually, C.M.J. went to the police station, told them what happened and that Conley was at her apartment with her children. The police then went with C.M.J. to her apartment. At C.M.J.’s apartment, the police knocked, a male inside the apartment asked who was there, and the police identified themselves as police officers. Conley opened the door to the apartment, and the police arrested him. After the arrest, the police seized evidence from C.M.J.’s apartment.

The district court denied Conley’s pretrial motion to suppress the evidence as being unlawfully seized. The jury found Conley guilty of third-degree criminal sexual conduct, solicitation to practice prostitution, second-degree assault, and first-degree criminal sexual conduct. This appeal followed.

D E C I S I O N

1. Suppression of Evidence

Conley argues that the district court erred in denying his motion to suppress evidence allegedly obtained through an illegal search. When reviewing a pretrial order on a motion to suppress evidence, this court may independently review the facts and determine whether, as a matter of law, the district court erred in suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). A district court’s findings of fact are not disturbed unless they are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Both the Fourth Amendment to the United States Constitution and Article 1, Section 10 of the Minnesota Constitution guarantee the “right of the people to be secure in their persons, houses, papers, and effects” against “unreasonable searches and seizures.” U.S. Constitution, Amend. IV; Minn. Const. art. I, § 10. Warrantless searches and seizures are per se unreasonable, subject to only a few established exceptions. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). The recognized exceptions include (1) a search conducted incident to a lawful arrest, (2) a search conducted because of exigent circumstances, and (3) a search conducted with consent. State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). In addition, a third party, who has common authority over a dwelling, may consent to a search in the absence of others who share authority. State v. Martin, 261 N.W.2d 341, 344 (Minn. 1977).

The record shows that the police knocked on the apartment door, a male inside the apartment asked who was there, the police identified themselves, Conley opened the door, the police entered the apartment, placed Conley under arrest and led him out of the apartment.

Here, Conley concedes that C.M.J. had authority to consent to a search of the apartment, actually consented, and that C.M.J. entered the apartment with the police after Conley had been arrested. Thus, Conley’s consent to the search is irrelevant and the district court did not err in ruling that the evidence was admissible because it was obtained from a lawful search.

2. First-degree Criminal Sexual Conduct Sentence

Conley argues that his sentence should be reduced to the presumptive guidelines sentence of 158 months. The district court found aggravating circumstances and imposed an upward durational departure to 300 months. The United States Supreme Court has recently held that a sentence that exceeded the presumptive guidelines sentence under Washington’s sentencing guidelines was unconstitutional unless the facts upon which the departure was based were found beyond a reasonable doubt by a jury. Blakely v. Washington, 124 S. Ct. 2531, 2537-38 (2004). If Blakely applies to the Minnesota sentencing guidelines, Conley would be entitled to the benefit of the rule established in that case. The applicability of Blakely, the relief it affords,and any further sentencing determination are appropriately decided by the district court. Thus, we remand the sentencing issue.

3. Probable Cause

Conley argues that the probable-cause determination was made in violation of County of Riverside v. McLaughlin, 111 S. Ct. 1661, 500 U.S. 44 (1991). McLaughlin requires that judicial determinations of probable cause be made as to persons arrested without a warrant within 48 hours of arrest. Id. at 1664, 500 U.S. at 45. Here, Conley was arrested on March 24, 2003, the complaint was signed on March 25, 2003, and Conley appeared in court on March 26, 2003. Thus, Conley fails to show how his probable-cause determination was unreasonably delayed under McLaughlin.

4. Disclosures

Conley argues that the prosecutor did not provide timely discovery under Minn. R. Crim. P. 9.01, and thatall evidence untimely disclosed must be suppressed. The prosecuting attorney on request of defense counsel shall allow access to all matters within the prosecuting attorney’s possession or control before the omnibus hearing. Minn. R. Crim. P. 9.01, subd. 1. Based on assertions in his pro se brief, Conley fails to point to specific disclosures that allegedly were untimely and thus fails to show any error on this issue.

Affirmed in part and remanded.