This opinion will be unpublished and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

A04-2076

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kevin Watson Hoidale,

Appellant.

 

 

Filed September 13, 2005

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 03063648

 

 

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

 

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

 

Stefan A. Tolin, 540 Wells Fargo-Midland Building, 401 Second Avenue South, Minneapolis, MN 55401-2307 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from his conviction of possession of pornography involving a minor, appellant Kevin Watson Hoidale challenges the district court’s pretrial order denying his motion to suppress the evidence against him.  We affirm.

FACTS

On July 14, 2003, Minneapolis police responding to a domestic-assault call entered appellant’s residence without a search warrant and observed drug paraphernalia, based on which they obtained a search warrant.  While executing the warrant, the police observed pornographic contraband and obtained a second warrant.  After the police executed the second warrant, appellant was charged with three counts of felony possession of pornography involving a minor, in violation of Minn. Stat. § 617.247, subd. 4(a) (2002).

            Appellant moved to suppress the evidence against him as obtained consequent to an illegal warrantless entry.  At the Rasmussen hearing, Minneapolis Police officer Mark Beaupre testified that on July 14, 2003, he responded to a domestic-assault call at appellant’s residence and arrived to discover that appellant was already detained in another police car.  Two women, who identified themselves to Beaupre as M.M.N. and C.F., were talking to another officer in front of the house.  Both women told Beaupre that they resided in appellant’s home.  M.M.N., who was wearing only a bra and shorts, stated that appellant had assaulted her on the deck and in the living room.

Beaupre testified that because M.M.N. appeared very uncomfortable about discussing the incident in front of C.F., he asked her if she would prefer to go inside the house to show him where the assault took place.  Beaupre testified that M.M.N. told him to come in the house with her.  When Beaupre entered the living room, he observed the drug paraphernalia that ultimately led to both warrants and the current charges.  Appellant testified that M.M.N. never resided with him and did not have authority to consent to a search.

            After the district court denied appellant’s motion to suppress, the parties submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the court found appellant guilty of two charged counts.  This appeal follows.   

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, an appellate court may review the facts independently to 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).  The district court’s factual findings will not be reversed, however, unless clearly erroneous or contrary to law.  State v. Gilbert, 262 N.W.2d 334, 340 (Minn. 1977).

I.

Appellant argues that M.M.N.’s statement to officer Beaupre that she resided in appellant’s house was inadmissible hearsay that Beaupre was prohibited from repeating in his testimony.  This argument lacks merit for at least three reasons.  First, it is unsupported by legal citation, an omission that generally precludes consideration by this court.  See Minn. R. Civ. App. P. 128.02, subd. 1(d) (providing that appellant’s argument must be accompanied by citations to relevant authority).  Second, Minn. R. Evid. 104(a) specifically provides that “[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the [district] court . . . .  In making its determination it is not bound by the rules of evidence except those with respect to privileges.”  Because the issue before the district court here concerned the admissibility of evidence and did not concern privileges, the court was not bound by hearsay rules.

            Third, Beaupre’s testimony was not hearsay because it was offered not to show the truth of the matter asserted – that M.M.N. lived at appellant’s house – but to show that M.M.N.’s statement contributed to Beaupre’s belief that M.M.N. was authorized to consent to the search.  “If a statement is offered to show something other than the truth of the matter asserted, . . . it is not hearsay.”  State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004).  There is no support for appellant’s argument that the state was required to call M.M.N. as a witness to validate Beaupre’s testimony concerning her statement.

II.

Appellant argues that the district court erred by concluding that M.M.N. gave effective consent to Beaupre’s entry into appellant’s house.  The Minnesota and United States Constitutions protect against unreasonable searches and seizures by the state.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  “Warrantless searches are presumptively unreasonable unless one of a few specifically established . . . exceptions applies.”  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (quotation omitted).  “Consent to entry is a well recognized exception to the warrant requirement.”  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).

A third party has apparent authority to consent to a search when, “under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.”  Id.  This court must determine whether, under the totality of the circumstances, there was a sufficient objective basis for the police to believe that the person consenting to the search had authority to consent.  Id.  We conclude that such a basis existed here.

            Beaupre testified that he believed M.M.N.’s statements to him that she lived at appellant’s house and slept on the couch.  The district court specifically found Beaupre’s testimony credible.  The district court also found that when Beaupre arrived at the house, M.M.N. was partly undressed and that the other woman present told Beaupre that M.M.N. was appellant’s girlfriend.

Where the consent involves a guest actually present inside the dwelling who merely invites the police into an area where visitors would normally be received, there is sound authority that, at least when the guest is more than a casual visitor and had the run of the house, his lesser interest in the premises is sufficient to render that limited consent effective.

 

Id. (quotation omitted).  Beaupre believed, after speaking with M.M.N., that she was more than a casual visitor who had been present inside appellant’s home when the police arrived to arrest appellant.  Beaupre reasonably concluded that M.M.N. had authority to consent to his entry into the home.

Appellant argues that Beaupre failed to sufficiently verify that M.M.N. was telling the truth about her identity, her relationship with appellant, and the nature of her presence in his home before concluding she was authorized to consent to his entry.  But the issue is not whether Beaupre was correct to believe M.M.N.’s statements and act accordingly, but whether his belief that her statements were true was reasonable:  “in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable.”  Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S. Ct. 2793, 2800 (1990).  Although appellant also objects to the district court’s findings concerning witness credibility and the weight to be accorded various evidence, those findings are supported by the record and are not clearly erroneous. 

Finally, appellant’s argument that the district court’s order denying his motion relied on evidence outside the Rasmussen record is not supported by specific reference to the court’s order or any explanation as to which of the district court’s findings are based upon evidence outside the record.  The district court’s findings are supported throughout by reference to testimony presented at the Rasmussen hearing. 

Under the totality of the circumstances here, Beaupre reasonably believed that M.M.N. was authorized to consent to his entry into the home.  The district court therefore did not err in concluding that M.M.N. had apparent authority to consent to the search and in denying appellant’s motion.

            Affirmed.