A04-1005

State of Minnesota,

Respondent,

vs.

William Daniel Winter,

Appellant.

Filed June 21, 2005

Affirmed

Willis, Judge

Ramsey County District Court

File No. K3-03-847

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

Susan Gaertner, Ramsey County Attorney, Colleen Timmer, Assistant County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

Barry V. Voss, 527 Marquette Avenue, Suite 1050, Minneapolis, MN 55402 (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

WILLIS, Judge

Appellant challenges his conviction of fifth-degree controlled-substance crime, arguing that the district court should have granted his motion to suppress evidence obtained when police entered his apartment to execute an arrest warrant without the necessary reasonable belief that he was on the premises. Because there was sufficient reason for the officers to believe that appellant was present when they entered his apartment, we affirm.

FACTS

On March 5, 2003, the St. Paul Police Department requested that North St. Paul police officers Scott Blasko and Scott Swenson go to appellant William Daniel Winter’s apartment in North St. Paul to execute a warrant for his arrest because Winter had failed to register as a sex offender under Minn. Stat. § 243.166, subds. 1(a), 5(a) (2002). The officers were provided with a photograph of Winter and a description of him and his vehicle. They were advised to use caution when approaching Winter because of his association with known drug offenders.

Upon their arrival at Winter’s apartment, but before knocking, the officers listened through the door and heard voices and television noise inside the apartment. On the basis of what he heard, Blasko testified that he believed that there were people in the apartment. Blasko then knocked, and Dakota Michelle Lee answered the door. Blasko identified himself as a police officer and announced that he was there to execute a warrant for Winter’s arrest.

Lee told the officers that they had the right address but that Winter was not at home and that the officers could not come in. Blasko testified that Lee appeared agitated and nervous, frequently repeating herself and looking back into the apartment as she spoke to Blasko. Blasko told Lee that based on “how nervous she was” and based on his knowledge that Winter may have evaded contact with police during a previous visit to the same address under similar circumstances, he “believed that she was lying.”

Lee attempted to prevent the officers from entering the apartment by closing the door on them, but they entered, and Blasko told Lee to sit on the couch while he searched for Winter in the apartment. While looking in the bedroom, Blasko noticed that the closet door was open, and he pushed aside clothing in the closet to determine if Winter was hiding there. When Blasko pushed the clothing aside, he noticed several baggies of what appeared to be marijuana on a closet shelf. Blasko also noticed another baggie of suspected marijuana on top of a dresser, along with some drug paraphernalia and two other small packages of what appeared to be controlled substances. Apart from pushing aside the clothing in the closet, Blasko testified that he did not touch or move anything in the apartment.

Winter then entered the apartment, and Blasko told him that he was under arrest for failing to register as a sex offender and for the drugs that Blasko had discovered in the bedroom. Blasko read Winter a Miranda warning, and Winter then admitted that the marijuana was his.

The state charged Winter with fifth-degree controlled-substance crime for possession of marijuana. At a Rasmussen hearing in September 2003, the district court denied Winter’s motion to suppress the marijuana seized at Winter’s apartment. In February 2004, Winter stipulated to the state’s case under Lothenbach. The district court found Winter guilty and sentenced him to 24 months in prison. This appeal follows.

D E C I S I O N

“[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The district court denied Winter’s motion to suppress, concluding that the officers had reason to believe that Winter was present because they heard voices and television noise coming from within the apartment and observed Lee’s nervous behavior when she answered the door. The district court also concluded that the marijuana that the officers seized after entry into the apartment was in plain view. Winter argues that the officers illegally seized the marijuana because they did not reasonably believe he was present when they entered to execute the warrant for his arrest.

A valid arrest warrant affords a law-enforcement officer limited authority to enter a suspect’s residence if the officer reasonably believes that the suspect is on the premises. State v. Williams, 409 N.W.2d 553, 555 (Minn. App. 1987) (following Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980)). The officers in Williams had information that the suspect was staying in a room at a particular hotel and confirmed with the hotel desk clerk that, in fact, he was registered as a guest at the hotel. Id. at 554. But the clerk told the officers that the suspect had been locked out of his room for failure to pay his bill. Id. This court held that the officers were not required to rely on the hotel employee’s representation that the suspect was not in his room and that they acted reasonably by entering the suspect’s room to determine if he was present. Id. at 555.

Similarly, the officers here had information that Winter lived in a North St. Paul apartment and confirmed with Lee that they had the right address. But Lee told the officers that Winter was not at home. Based on the officers’ observation of Lee’s nervous demeanor and their knowledge that Winter may have evaded contact with police on a previous visit, it was reasonable for the officers to believe that Winter was in the apartment. We conclude that the officers were not required to rely on Lee’s representation that Winter was not at home and that the officers acted reasonably by entering Winter’s apartment to determine if he was there.

Finally, Winter cites Williams for the proposition that “the arrest warrant did not justify a routine search of [his] rear bedroom.” But this court determined in Williams that “[a]n arrest warrant does not justify the routine search of a room through dresser drawers or through items of clothing.” Id. (emphasis added). And Winter concedes that “[o]nce inside, the officers may then lawfully search anywhere in the house that the suspect might be found.” See Payton, 445 U.S. at 602-03, 100 S. Ct. at 1388 (holding that when an officer enters a suspect’s residence believing that the suspect is present, the officer may lawfully search the residence in its entirety for the suspect).

Here, Blasko entered the bedroom of the apartment to look for Winter. Once in the bedroom, Blasko pushed aside clothing in the closet to see if Winter was hiding there and saw what appeared to be marijuana on a closet shelf. Blasko also saw what appeared to be marijuana on topof a dresser in the bedroom. Blasko did not search through either the clothing in the closet or the dresser drawers. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136-37 (1993) (holding that when officers are lawfully in a position to view an object that is incriminating by its appearance and they have lawful access to the object, “they may seize it”).

Because the officers had sufficient reason to believe that Winter was present when they executed the warrant for his arrest, they had the authority to enter into Winter’s apartment, and the subsequent seizure of the suspected marijuana was lawful.

Affirmed.

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