This opinion will be unpublished and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

A04-1585

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Richard Meyer,

Appellant.

 

 

Filed May 17, 2005

Affirmed
Crippen, Judge*

 

Kandiyohi County District Court

File No. K8-01-551

 

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Theodora K. Gaïtas, Assistant State Public Defenders, Emerald Gratz, Certified Student Attorney,2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Following his conviction of a controlled-substance offense, appellant challenges the district court’s denial of his motion to suppress evidence obtained subsequent to an illegal search by police.  Because the record sustains the district court’s determination that the evidence was not fruit of the poisonous tree, we affirm.

FACTS

            In April 2001, Sergeant Randall Kveene of the Kandiyohi County Sheriff’s Department and Officer Kris Kolstad of the Willmar Police Department were investigating a revoked-license offense in the parking lot of a motel in Willmar when Jeremy Peterson came out of the motel.  Peterson was upset over their arrest of the suspect and began shouting at the officers before entering a black pick-up truck with expired license-plate tabs.  Kveene informed Peterson that the tabs were expired and asked Peterson to identify himself.  Kveene recognized Peterson by name because earlier that day another deputy had asked him if he knew where Peterson lived.  Kveene then contacted the deputy and learned that Peterson was suspected of involvement in a methamphetamine operation.

Appellant Jason Richard Meyer then came out of the motel, indicated that the pick-up truck belonged to him, and told the officers not to worry about Peterson. Kveene informed appellant that the tabs were expired, and appellant said he did not intend to drive the truck. Appellant then opened the tailgate to retrieve something, at which point Kveene noticed two bottles of alcoholic beverages in the bed of the truck.  When Kveene asked appellant his age, appellant gave Kveene his date of birth which indicated he was 18 years old.  Kveene began to question appellant about the alcohol and why he was at the motel.  Appellant said that he had inquired into renting a room but had not done so.

Kveene then talked to the front-desk employee and learned that, contrary to appellant’s statement, appellant had rented a room.  Kveene returned to the parking lot and asked appellant why he had lied about the room.  Appellant admitted renting the room but insisted he rented it for his brother, Justin Meyer, and had not been in the room himself.  Kveene recognized Justin Meyer by name as the subject of an outstanding arrest warrant.  Kveene then patted down appellant and felt what he believed to be drug paraphernalia in apellant’s pants pocket.  Kveene asked appellant what it was, and appellant responded, “Something very bad.”  Appellant then removed from his pocket a small vial containing a residue of white powder that proved to be methamphetamine.

Kveene informed appellant that he did not intend to arrest him for the paraphernalia nor cite him for the expired tabs and alcohol, but asked appellant for permission to search his motel room.  Appellant again said that it was his brother’s room and that he had not been in it.  Kveene told appellant that as renter of the room, he could grant permission for the search or decline to provide consent.  Kveene informed appellant that law enforcement could bring a dog to the site and obtain a warrant that way.  Approximately five minutes after Kveene’s inquiry at the front desk and repeated requests for appellant’s permission to search the room, appellant permitted entry into the room. 

            Once inside the room, Kveene found equipment and supplies consistent with the manufacture of methamphetamine.  Kveene arrested appellant and advised him of his Miranda rights.  After taking incriminatory statements and conducting further searches with warrants, appellant was charged with drug offenses.  A jury found appellant guilty of conspiracy to commit a controlled-substance crime in the first degree in violation of Minn. Stat. §§ 152.021, subd. 2(a), 3, .096, subd. 1 (2000).  The district court stayed appellant’s 86-month prison sentence. 

            In his first appeal, appellant questioned the district court’s judgment that he waived any suppression claims based on the pat-down search, arguing further that the pat-down search violated his right to be free from unreasonable search and seizure.  This court remanded with instructions that the district court address the pat-down search and the fruit-of-the-poisonous-tree claims.  State v. Meyer, No. CX-02-2279, 2004 WL 61122, at *5 (Minn. App. Jan. 13, 2004), review denied (Minn. Mar. 30, 2004).

            On remand, the district court issued a supplemental omnibus order concluding that the pat-down search was not based on a reasonable, articulable suspicion and was thus improper.  But the court also determined that evidence obtained from the search of the motel room and subsequent incriminating statements and searches were not fruit of the poisonous tree.  Because the evidence discovered during the pat-down search—methamphetamine paraphernalia and appellant’s conversation with Officer Kveene—had not been in evidence at trial, the district court affirmed appellant’s conviction.  Appellant now challenges this order.

D E C I S I O N

            The exclusionary rule provides that “evidence discovered by exploiting previous illegal conduct is inadmissible.”  State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)), review denied (Minn. Dec. 11, 2001).  Such evidence is “fruit of the poisonous tree,” and for evidence discovered subsequent to illegal conduct to be admissible, the state must prove that the evidence was obtained “by means sufficiently distinguishable to be purged of the primary taint.”  Id. (quotation omitted). 

            As the district court recognized, several factors determine whether evidence is fruit of the poisonous tree:  “(1) the purpose and flagrancy of the officer’s misconduct, (2) the presence of intervening circumstances, (3) whether it is likely the evidence would have been obtained in the absence of the illegality, and (4) the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality.”  State v. Bergerson,659 N.W.2d 791, 797 (Minn. App. 2003) (citing State v. Warndahl, 436 N.W.2d 770, 776 (Minn. 1989)).  The court analyzed each of these factors in light of its factual findings and determined that the evidence seized in the motel room was not tainted by the illegal pat-down search. 

            Appellant contends that the district court erred in its application of the Bergerson factors.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            Presence of Intervening Circumstances

            Appellant primarily argues that the district court erred by identifying his consent as an intervening circumstance.  If consent is “manifestly voluntary and is not a product of an illegal arrest, it will not be deemed tainted by the arrest and will fall outside the bounds of the exclusionary rule.”  State v. Hoven, 269 N.W.2d 849, 854 (Minn. 1978).  “[T]he question whether a consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all of the circumstances.”  State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (emphasis omitted) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047 (1973)).  Therefore, we will reverse a district court’s finding of consent only if it is clearly erroneous.  State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).

            The district court found that appellant’s consent to search the room was “manifestly voluntary” and constituted an intervening circumstance that weighed heavily against suppression.  The court noted that appellant “was outside, near his own vehicle, and had been told that he was free to leave,” and when Kveene asked for consent, appellant “had not been arrested, handcuffed, or otherwise confined.”  The court took into consideration appellant’s youth and inexperience with the criminal justice system.  The court also noted that Kveene told appellant he would not be arrested for the methamphetamine residue and paraphernalia found on his person and stated at least twice that he did not have to consent to the search. 

            In response to appellant’s coercion argument, the district court characterized Kveene’s attempt at obtaining consent as “trying to make the situation less threatening by disregarding the fruits of the pat-down, and being extra careful to make sure that [appellant’s] consent was voluntary.”  Appellant contends that Kveene’s statement that a dog sniff could be performed was coercive.  But a threat to obtain a warrant supported by probable cause does not necessarily invalidate otherwise voluntary consent.  United States v. Larson, 978 F.2d 1021, 1024 (8th Cir. 1992); see also State v. Hanley, 363 N.W.2d 735, 739 (Minn. 1985) (finding statement that a warrant would or could be obtained not coercive).  The record reveals adequate support for the district court’s factual determination that appellant voluntarily consented to the search of the motel room.

            Purpose and Flagrancy of Officer’s Misconduct

            The district court stated that the flagrancy of Kveene’s conduct weighed “only slightly in favor of suppression,” finding no reason to doubt that Kveene performed a pat-down because he “honestly, if unreasonably, feared that [appellant] would try to harm him.”  With respect to the purpose and flagrancy of Kveene’s misconduct, appellant contends that Kveene committed flagrant misconduct that makes application of the exclusionary rule “particularly appropriate.”  Appellant asserts that the court erred by basing its analysis of this factor on two clearly erroneous factual findings:  (1) that Kveene was afraid of appellant, and (2) that Kveene did not initiate contact with appellant.  

The district court found that appellant made no threats against Kveene and appellant claims that Kveene never testified that he had any fear of appellant.  But Kveene testified that when he performed the pat-down “to determine any bulges that might be weapons,” he already suspected “that there was a possibility there could be a relationship to the methamphetamine here” and that “people that use methamphetamine can be very paranoid.”  The district court found that Kveene’s suspicions were not sufficiently reasonable to justify the pat-down in light of appellant’s constitutional rights, but the record permits the district court’s inference that Kveene’s subjective intent in performing the pat-down was officer safety.  Regarding the court’s second questioned finding, Kveene testified that after talking with Jeremy Peterson, “Jason Meyer came out of the [motel] and told me that this was his vehicle.” The court’s challenged findings were not clearly erroneous.

            Likelihood of Obtaining Evidence in Absence of Illegality

            Appellant contests the district court’s determination that the evidence would have been discovered without fruit of the pat down because Kveene did not use the illegal search to obtain consent and because the illegal search did not uncover probable cause to enter the motel room.  The state responds that appellant’s argument erroneously applies the inevitable discovery doctrine, which is distinct from the third factor in fruit-of-the-poisonous-tree analysis.  See State v. Bale,267 N.W.2d 730, 732 (Minn. 1978) (rejecting “but for” test for determining whether evidence would have been discovered).  The district court properly deliberated on the question as to whether cause for the room search developed independent of the fruit of the prior pat down.  

            The court noted that, prior to the pat-down search, Kveene had already determined that appellant had rented the room.  The court’s findings of fact also confirm Kveene’s awareness that appellant was lying to him about having rented the room for his brother, Kveene’s knowledge that appellant’s brother had an outstanding arrest warrant, and that appellant’s present companion was suspected of involvement in a methamphetamine lab.  All of this knowledge preceded the discovery of methamphetamine residue and paraphernalia resulting from Kveene’s pat-down of appellant.  These facts permit the conclusion that Kveene would have pursued a dog sniff of the door of the motel room regardless of what Kveene discovered on appellant’s person or whether appellant provided consent to search.

            Temporal Proximity of Illegality and Subsequent Discovery of Evidence

              The district court stated that the fact that the request for consent and the resulting search immediately followed the illegal pat-down favored suppression of the evidence.  Considering all of the factors, the court stated that “[w]hile it cannot be said that a violation of one’s constitutional rights is ever insignificant, the pat-down . . . was . . . not flagrant misconduct,” and Kveene did not use the fruit of the pat-down “as probable cause to search the motel room, or as a bargaining tool in coercing consent.” 

            Because appellant’s “manifestly voluntary” consent and the likelihood of the discovery of the evidence absent the illegal conduct outweighed the other factors, the district court found that the evidence obtained from the motel room was sufficiently distinguishable to be purged of the primary taint of the illegality.  Notwithstanding the weight of the factors which favored suppression in the court’s estimation, its decision is sound in light of the legal standard.  See Bergerson, 659 N.W.2d at 797 (stating that factors must be balanced and no single factor is dispositive).

            In light of the record below, the district court’s decision not to suppress the evidence obtained following the illegal search was not erroneous.  We affirm the court’s denial of appellant’s motion to suppress evidence obtained from the search of the motel room and subsequent statements and searches.

            Affirmed.