This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-811

State of Minnesota,
Respondent,

vs.

Autumn Marie Ronning,
Appellant.

 

Filed May 10, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 03075558

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant Autumn Marie Ronning challenges her conviction of fifth-degree controlled-substance crime, arguing that the district court erred by denying her motion to suppress evidence of the controlled substances found in her possession.  Appellant asserts that the controlled substances are fruit of the poisonous tree because there was no probable cause or other constitutional basis for her arrest and search of her backpack.  Because there was probable cause to arrest appellant for shoplifting under Minn. Stat.     § 629.366, subd. 2, and the circumstances gave rise to the reasonable appearance that custodial arrest was necessary to prevent bodily harm, the arrest was legal, the search was valid as incident to a lawful arrest, and we affirm.

FACTS

 

Appellant Autumn Marie Ronning entered a Cub Foods store through the exit doors and picked up a plastic Cub Foods bag.  A loss prevention officer, Kathleen Haskell, saw appellant take the bag, found her behavior to be an “attention-getter,” and began watching appellant on closed-circuit television.  Haskell observed that appellant was in the store for “quite some time looking at many items.”  After observing appellant for about 20 minutes, Haskell was called away to deal with a shoplifting incident.  She resumed monitoring appellant later and saw appellant select some “facial products,” place them in the bag, “kind of close up the bag,” and walk past the cash registers to the exit.  As appellant was exiting the first set of doors, a uniformed store employee was also leaving the store.  Haskell observed that when appellant saw the store employee, she quickly turned around before exiting the last set of doors and walked to the women’s restroom, which is located inside the store about 10 feet from the first exit door.  Haskell followed appellant into the restroom and identified herself as store security.  Appellant was in the handicapped stall.  Haskell asked appellant to come out of the stall several times but appellant stayed in the stall for at least one hour and 20 minutes.  Appellant told Haskell that she was playing her Gameboy.  Haskell heard odd noises at one point and observed through a crack in the door-hinge area of the stall that appellant had taken her clothes off.  Appellant finally left the stall, fully clothed.  Haskell testified that she observed a razor blade in appellant’s hand, which appellant placed on the sink.[1]

At about this time, Brooklyn Park police officer Garrett Flesland arrived at the store in connection with an unrelated shoplifting incident.  The store security officer told him that appellant had been observed concealing merchandise and starting to leave the store before turning around and going into the restroom where she stayed for more than an hour, playing her Gameboy and completely disrobing at one point.  Officer Flesland testified that he was directed to arrest appellant for shoplifting.

Officer Flesland entered the women’s restroom and saw appellant washing her face in the sink.  When the officer asked her why she had been in the stall for more than an hour, appellant denied that she had been in the stall for more than an hour and told the officer that she “had just gotten there.”  Officer Flesland asked appellant if she had merchandise in the bag that she had not paid for and appellant told him that she was intending to pay for the merchandise when she left the restroom.  Officer Flesland testified that appellant was agitated, angry, and was threatening him by taking aggressive stances and pacing.

Officer Flesland pat-searched appellant for weapons and arrested her for shoplifting.  In a subsequent search of appellant’s backpack, the officer found substances that he believed to be cocaine, crystal methamphetamine, and heroin.  These substances tested positive for the suspected narcotics.  Appellant was charged with a controlled-substance crime.

Appellant moved to suppress evidence of the drugs, arguing that there was no probable cause to arrest her for shoplifting and that, in any event, a custodial arrest for a misdemeanor was not justified, making the search of her backpack unlawful.  The state argued that appellant’s arrest was lawful under the shoplifting statute, Minn. Stat. § 629.366, subd. 2, which provides that “[u]pon a charge being made by a merchant or merchant’s employee, a peace officer may arrest a person without a warrant if the officer has reasonable cause for believing that the arrestee has committed or attempted to commit [a shoplifting offense.]” 

Appellant argued that under the separation-of-powers doctrine, the shoplifting statute is a procedural statute that is invalid because it conflicts with the mandate of Minn. R. Crim. P. 6.01, subd. 1(a), requiring, in relevant part, an officer acting without a warrant in a misdemeanor to issue a citation unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm.  Appellant asserts that there is no evidence that her arrest was necessary to prevent bodily harm.  The state countered that the validity of the arrest provision of the shoplifting statute is statutorily preserved from conflicting-rule nullification and, alternatively, appellant’s behavior gave rise to a reasonable belief that she presented a danger to herself or others, justifying her detention under rule 6.01.  The district court found that the officer had probable or reasonable cause to believe appellant had engaged in theft or attempted theft and that it was reasonable under the circumstances for the officer to conclude that appellant might pose a danger to herself, justifying arrest under rule 6.01.  The district court did not reach the issue of whether Minn. Stat. § 629.366, subd. 2, is a procedural statute that conflicts with rule 6.01 or is void under the separation-of-powers doctrine.

            After a bench trial on stipulated facts, appellant was convicted of and sentenced for fifth-degree controlled-substance crime.  This appeal followed.

D E C I S I O N

 

I.          Standard of review

 

When reviewing pretrial orders on motions to suppress evidence, appellate courts may independently review the facts and determine, as a matter of law, whether the district court erred in not suppressing the evidence.  State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).  Where the facts are in dispute, an appellate court will not reverse the district court’s findings unless clearly erroneous or contrary to law.  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). 

In this case, the validity of the search that revealed the controlled substances in appellant’s backpack hinges on the legality of her custodial arrest.  Warrantless searches are presumptively unreasonable unless falling under one of a few limited exceptions.  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).  And, the exception for a search incident to a lawful arrest applies only when the crime for which there is probable cause to arrest is a crime for which a custodial arrest is authorized.  State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998).[2]
 

II.        Probable cause to suspect appellant of shoplifting

The district court found that Officer Flesland had reasonable cause to believe that appellant had committed shoplifting.  Minn. Stat. § 629.366, subd. 2, provides that “[u]pon a charge being made by a merchant or a merchant’s employee, a peace officer may arrest a person without a warrant, if the officer has reasonable cause for believing that the person has committed or attempted to commit [theft in a business establishment as defined in section 629.366, subd. 1].”  Appellant argues that the officer did not have probable cause to arrest her for shoplifting because the record does not show that a reasonable person would have had more than a mere suspicion that she was stealing or attempting to steal.  Appellant also asserts that, because she immediately turned around and entered the restroom, she may have been simply distracted and had inadvertently begun to leave.  Appellant also claims that her behavior of turning around before leaving the store demonstrated that “in good faith she abandoned any intent to steal.” 

An officer has probable cause to arrest a person if “the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.”  State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999) (quotation omitted).  Probable cause requires something more than mere suspicion of crime, but requires less than the evidence necessary for conviction.  State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000). 

Minn. Stat. § 609.52, subd. 2, provides in relevant part:

Whoever does any of the following commits theft . . .

(1)       intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable
            property of another without the other’s consent and with intent to deprive the owner permanently of possession of
            the property.

 

In Minnesota, there is no requirement that a defendant must have left or even attempted to leave a store to establish intent to commit theft under the statute.  Intent is generally determined from the defendant’s words and actions in light of the surrounding circumstances.  See State v. Duea, 414 N.W.2d 513, 515 (Minn. App. 1987) (citing State v. Hadimon, 310 N.W.2d 564, 566 (Minn. 1981)).  In this case, appellant’s actions of concealing merchandise in a bag, walking past the cash registers and through the first exit doors, turning back only when she saw a uniformed store employee near her and entering a restroom where she remained for more than an hour provided probable cause for the officer to believe appellant violated section 609.52, subd. 2.

            Appellant’s hypotheses that she passed the cash registers without paying for the merchandise in her possession due to distraction or that by reentering the store she evinced an abandonment of any prior intent to commit theft, do not negate the existence of probable cause.  When determining whether there is probable cause, the “ultimate inquiry is not whether there is some hypothesis of innocence which is reasonably consistent with the circumstances shown, for such an analysis is more appropriate to the ‘beyond a reasonable doubt’ standard used on the merits.”  State v. Hawkins, 622 N.W.2d 576, 580 (Minn. App. 2001) (quotation omitted).

III.       Arrest under Rule 6.01

Appellant argues that a custodial arrest was not warranted under Minn. R. Crim P. Rule 6.01 and that under the rule, the officer should have issued a citation for shoplifting and released her.  Minnesota Rules of Criminal Procedure, Rule 6.01, provides:

Subd. 1            Mandatory Issuance of Citation.

(1)              For Misdemeanors.

(a)       By Arresting Officers.          Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears necessary to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another. . . .

 

The district court found that appellant’s arrest could reasonably have appeared necessary to prevent bodily harm.  There is no caselaw or other authority brought to our attention that defines what constitutes a reasonable appearance that detention is necessary to prevent bodily harm to the accused or another.  Using a common-sense, totality-of-the circumstances approach, on this record, we conclude the district court’s finding is not clearly erroneous.  The officer was aware of appellant’s bizarre behavior, which included being in the store for a long period of time, being in the restroom for more than an hour, disrobing, talking loudly, being agitated, jittery, and taking what the officer perceived as aggressive stances.  The officer testified that he felt threatened by appellant’s behavior.  These facts support the district court’s finding that arrest reasonably appeared necessary to prevent bodily harm.  We conclude, therefore, that the district court did not err in holding that appellant’s arrest was consistent with Rule 6.01 and that the search of her backpack was lawful as incident to a valid arrest.

IV.       Arrest pursuant to Minn. Stat. § 629.366

Although the district court did not reach the issue of the legality of appellant’s arrest under Minn. Stat. § 629.366, subd. 2, we hold, in the alternative, that appellant’s arrest under that statute does not conflict with Rule 6.01 because section 629.366, subd. 2, is specifically excepted from any preemptive effect of the rule.  Minn. Stat. § 480.059, subd. 1.  Minn. Stat. § 480.059, subd. 7(f), states that provisions relating to extradition, detainers, and arrest found in sections 629.01 to 629.404 are excepted from the provision of section 480.059, subd. 7, which in turn, states that statutes conflicting with a rule have no force and effect.  See State v. Ronquist, 578 N.W.2d 4, 6 (Minn. App. 1998) (holding that a statute listed in exceptions to section 480.059 subd. 7, remained in full force and effect notwithstanding a conflicting procedural rule), review granted (Minn. Jun. 17, 1998), aff’d, 600 N.W.2d 444 (Minn. 1999).

 

V.        State constitutional challenge to arrest under State v. Askerooth

For the first time on appeal, appellant raises an argument that her arrest and search were unreasonable under the state constitution and State v. Askerooth, 681 N.W.2d 353 (Minn. 2004).  An appellate court generally will not decide issues that are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  Such issues may be heard and decided, on a discretionary basis, “when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party.”  Id.  Because the state has addressed this argument in its brief and not voiced any objection to consideration of the argument, consideration will not prejudice the state.  In the interests of justice, we therefore consider this argument. 

In Askerooth, the supreme court addressed the legality of a police officer’s confinement of a driver in the back seat of a squad car during a routine traffic stop.  681 N.W.2d at 359.  After telling the driver that he would be issued citations for misdemeanor traffic violations, the officer asked the driver for permission to search his vehicle, which was granted.  Id. at 357-58  Later, after the driver was allowed to leave the scene to walk home, the officer found a controlled substance in the back of the squad car.  Id. at 358.

The supreme court determined that evidence of the controlled substance should have been suppressed.  The court first affirmed that the reasonableness of a traffic stop is analyzed under Terry v. Ohio principles.  Id. at 359; see also Terry, 392 U.S. 1, 88 S. Ct. 1868 (1963).  The court then noted that, in light of a recent United States Supreme Court decision, it is questionable whether a traffic stop search and seizure can ever be unreasonable in violation of the Fourth Amendment when the stop is supported by probable cause.  Id. at 360-61 (discussing Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001)).  But the court determined that Article I, Section 10, of the Minnesota Constitution provides greater protection than the Fourth Amendment and announced a rule requiring an application of Terry-style “reasonableness” principles and balancing of privacy interests against law enforcement concerns to traffic stops triggered by probable cause that a minor traffic offense has been committed.  The court determined that the state constitution requires that “each incremental intrusion during a traffic stop be tied to and justified by one of the following:  (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.  Id. at 365.  The court ultimately held that the seizure of Askerooth and search of his car could not be upheld under any of the above three justifications.  Id. at 371.

The case before us is significantly different.  It does not involve a traffic stop and it does involve a statute specifically authorizing a custodial arrest.  We find no merit in appellant’s argument based on Askerooth.

Affirmed.