This opinion will be unpublished and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

A05-989

 

State of Minnesota,

Appellant,

 

vs.

 

Andrew Read Halverson,

Respondent.

 

Filed November 1, 2005

Affirmed
Klaphake, Judge

 

Goodhue County District Court

File No. K6-04-1849

 

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

 

Christopher J. Schrader, Assistant Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN  55066 (for appellant)

 

David J. Hvistendahl, Mary L. Hahn, Brittney Ackerman, 331 South Water Street, P.O. Box 651, Northfield, MN  55057-0651 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The State of Minnesota brings this pretrial appeal challenging the district court’s decision to suppress physical evidence seized and statements obtained from respondent Andrew Read Halverson, as the fruits of an illegal seizure and search.  Because respondent was unlawfully under custodial arrest when the officer detained him for possession of drug paraphernalia, which is a petty misdemeanor, and refused to allow him to leave the detention area at the casino, we affirm the district court’s suppression order.

D E C I S I O N

            When reviewing a pretrial order suppressing evidence, appellate courts review the facts independently and “determine whether the district court erred in suppressing the evidence as a matter of law.”  State v. Fort, 660 N.W.2d 415, 417-18 (Minn. 2003).  We give deference to the district court’s findings of fact unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

            The federal and state constitutions prohibit unreasonable searches and seizures of “persons, houses, papers and effects.”  U.S. Const. Amend. IV; Minn. Const. art. I, § 10.  Warrantless searches and seizures are generally unreasonable, subject only to a few narrow exceptions, one of which is a search incident to a valid arrest.  See United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471 (1973); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993).

            An arrest occurs when police officers “restrain a suspect’s liberty of movement.”  State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984).  The test used to determine whether a suspect was under arrest is whether a reasonable person would have concluded under the circumstances that he was under arrest and not free to go.  State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984).  Here, the officer acknowledged that respondent was not free to leave.  The state concedes that although respondent was not under arrest, he was being detained pursuant to a Terry-like investigative stop.

            A fine line exists between an arrest and an investigative detention.  State v. O’Neill, 299 Minn. 60, 68, 216 N.W.2d 822, 827 (1974).  An officer may detain an individual during an investigative detention only as long as necessary to effectuate the purpose of the stop; the officer may not expand the scope or duration of the stop unless he or she is presented with sufficient reasonable suspicion to continue.  Fort, 660 N.W.2d at 418-19; State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).  At all times, the officer is required to act reasonably and diligently.  Id.

            The state insists that the officer here acted reasonably and diligently in his initial investigation of this petty misdemeanor drug paraphernalia case, which began after the officer observed a glass pipe on the center console of respondent’s vehicle, which was parked in the casino parking lot.  With the assistance of casino security, the officer detained respondent and his companion, who were found in the casino, placed them in separate detention rooms, and began to question them.  The state insists that once respondent’s companion voluntarily handed casino security a “green leafy substance” suspected to be marijuana, and once respondent began acting suspiciously in the detention room, the officer was justified in asking respondent for consent to search his person.  These additional observations, however, were not made until several minutes had passed and after respondent had repeatedly asked for permission to leave, during which time the officer continued to question him about whether there were drugs in his vehicle.

            After reviewing the surveillance tape of respondent’s detention, the district court determined that the officer was not conducting an investigatory detention and that respondent was under “full custodial arrest” when the officer placed him in the detention room.  In particular, the district court noted that the room had one door, that respondent was watched by the officer or by casino security at all times, and that respondent repeatedly asked if he could leave.  Under these circumstances, the district court did not err in concluding that a reasonable person would have believed that he was under arrest and not free to leave.

            A search incident to an arrest is valid only if the crime committed is one for which a custodial arrest is authorized.  State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998).  Here, respondent was initially detained for possession of drug paraphernalia, which is a petty misdemeanor.  Minn. R. Crim. P. 6.01, subd. 1(1) requires an officer to issue a citation to persons subject to arrest for misdemeanors not punishable by incarceration, “unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.”  See State v. Martin, 253 N.W.2d 404, 406 (Minn. 1977).

            As the district court determined, “no testimony was elicited to suggest that [respondent] would fail to appear . . . or that [he] was about to commit bodily harm against himself or others.”  Nor can respondent’s “consent” to the officer’s search of his person be deemed voluntary at that point.  See State v. George, 557 N.W.2d 575, 581 (Minn. 1997) (stating that “[e]quivocation as to consent in such intimidating circumstances is not enough” to show that a defendant voluntarily consented to a search).  We therefore conclude that the district court did not err in determining that respondent “was arrested illegally pursuant to a violation of a petty misdemeanor.”  The evidence obtained during his illegal detention, including his statements and the discovery of the pill bottle on his person, was properly suppressed under the exclusionary rule.  See Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 627 n.4 (Minn. 2000) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963)).

            The state alternatively argues that, even if the detention of respondent was illegal, the officer was still allowed to seize the glass pipe from his vehicle, which would have led to discovery of other contraband and the eventual arrest of respondent.  We disagree for several reasons.  First, the search of the vehicle was clearly tainted by the prior unlawful detention and arrest of respondent.  In addition, the evidence suggests that the remaining contraband discovered in respondent’s vehicle was not in plain view.  Finally, the officer never claimed that he saw any residue on the pipe, acknowledged that this type of pipe could be used to smoke tobacco, and admitted that he was merely “guessing” that the pipe was intended to be used for marijuana.  Under these circumstances, we cannot conclude that discovery of the glass pipe would have given the officer probable cause to believe that respondent had engaged in other criminal behavior so as to justify a search of the rest of the vehicle.

            We therefore affirm the district court’s suppression order and dismissal of the six counts against respondent, which included four counts of controlled substance crimes of various degrees, possession of a bullet-resistant vest, and carrying a weapon without a permit.

            Affirmed.