This opinion will be unpublished and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

A05-29

 

State of Minnesota,

Respondent,

 

vs.

 

Joshua Lee Maley,

Appellant.

 

Filed ­­­January 31, 2006

Affirmed

Dietzen, Judge

 

Clay County District Court

File No. K8-04-645

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Lisa Nelson Borgen, Clay County Attorney, 807 N. Eleventh Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)

 

Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, #320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction of fifth-degree possession of a controlled substance (methamphetamine) in violation of Minn. Stat. § 152.025, subd. 2(1) (2002), arguing that the police exceeded the scope of the warrant to search the apartment by searching appellant; and that his consent to a pat-down search was involuntarily obtained.  Because the district court did not clearly err in determining that appellant voluntarily consented to the search, we affirm.

FACTS

 

In March 2004, police detective Toby Krone applied for and was granted a warrant to search the apartment of Maria Martinez, who, along with her boyfriend, was suspected of conducting illegal drug activity.  The search warrant was executed by detective Krone and other officers.  The officers, who were in uniform, knocked on the exterior door of the apartment, announced their presence, and stated that they had a warrant and demanded entry.  The officers stated loudly and repeatedly several times, “Police department, search warrant, open the door.” Nobody came to answer the door after 20 or 30 seconds. Another officer standing at a different location outside the apartment observed numerous people standing inside who were not opening the door.  Finally, the officers entered the apartment by force.

            Upon entry, detective Krone observed eight or more people in the apartment, including appellant Joshua Lee Maley.  The apartment was an efficiency apartment, with a large open room and a rear hallway leading to a bathroom and a rear entrance.  The officers secured the residence by ordering the people to lie on the floor and placing them in handcuffs.  Detective Krone indicated that this was done for safety reasons and that based on his experience, he could not assume that everyone in the apartment was unarmed.

The officers conducted pat-down searches of the persons in the apartment after first asking each of them for their consent.  The occupants were escorted individually to the bathroom, where an officer completed a pat-down search for weapons.  When detective Krone directed appellant to stand and walk toward the bathroom, appellant stated that he had a pipe in one of his pockets.  Detective Krone then asked appellant for his consent to be searched and informed appellant that he could refuse.  Appellant consented, and Krone searched appellant’s pockets and found a glass pipe and a small plastic bag that contained a clear crystal substance, which turned out to be .2 grams of methamphetamine.  

            Appellant was arrested and charged with fifth-degree possession of a controlled substance (methamphetamine) in violation of Minn. Stat. § 152.025, subd. 2(1) (2002), and possession of drug paraphernalia in violation of Minn. Stat. § 152.092 (2002).  At a pretrial omnibus hearing, appellant moved to suppress the evidence found in his pocket, arguing that it was the fruit of an illegal search that exceeded the scope of the search warrant.  The district court denied the motion.  Appellant then waived his right to a jury trial and stipulated to the facts, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  In exchange, the state dismissed the drug-paraphernalia charge.  The district court found appellant guilty of the controlled substance charge.  This appeal follows.

D E C I S I O N

Appellant contends that the district court erred by refusing to suppress the methamphetamine evidence found in appellant’s pocket.  “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).  This court reviews the validity of a warrantless search de novo.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). 

The United States and Minnesota constitutions prohibit unreasonable searches and seizures.  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).
“The state bears the burden of showing that at least one of the exceptions applies in order to avoid suppression of the evidence acquired from the warrantless search.”  State v. Johnson, 689 N.W.2d 247, 251 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  

Appellant does not challenge the police handcuffing him or his brief detention.  Instead, appellant argues that the police exceeded the scope of the warrant when they searched him.  The state does not dispute that the search exceeded the scope of the warrant.  But the state argues that the drug evidence was correctly admitted because appellant voluntarily consented to the search. 

“It is [] well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985).  “A consent is valid if it is given voluntarily and without coercion.” Pullen v. Comm’r of Pub. Safety, 412 N.W.2d 780, 782 (Minn. App. 1987) (citing United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984)).  Consent to search must only be voluntary; it need not be knowing or intelligent. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992). Whether consent is voluntary is a fact question to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248–49, 93 S. Ct. 2041, 2059 (1973). The totality of the circumstances includes “the nature of the encounter, the kind of person [appellant] is, and what was said and how it was said.” State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  “[I]nvoluntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned.”  Harris, 590 N.W.2d at 102 (quotation omitted).  The state bears the burden of showing by a preponderance of the evidence that consent was voluntarily obtained.  Id.

The district court found that appellant voluntarily consented to the search because there was no persistent questioning from the detective regarding whether he could search the defendant’s person, no evidence that the officers used excessive force against appellant, and the detective advised appellant that he had the right to refuse the search.  A district court’s finding of consent will only be reversed if it is clearly erroneous.  Hummel, 483 N.W.2d at 73.  

Here, we cannot say based on the totality of the circumstances that the district court clearly erred in finding that appellant voluntarily consented to the search.  The district court found, and the record shows, that detective Krone asked for appellant’s permission to search him and informed him that he had the right to refuse to be searched.  See Bustamonte, 412 U.S. at 249, 93 S. Ct. at 2059 (a subject’s knowledge of his right to refuse consent weighs in favor of a finding that consent was voluntary).  The mere fact that, prior to the search, appellant was briefly detained along with the others in the apartment to ensure officer safety during the execution of the search warrant does not signify that appellant’s consent was coerced, particularly when detective Krone informed appellant that he had a right to refuse to be searched.  Because the record supports the district court’s finding that appellant voluntarily consented to the search, the district court did not err in admitting the drug evidence.

The state also argues that the drug evidence was properly admitted because exigent circumstances provided an independent basis for the search, and the evidence would have inevitably been discovered in a lawful pat-down frisk of appellant.  Because we conclude that appellant knowingly and voluntarily consented to the search, it is not necessary for us to reach these issues.  But we believe that the state’s additional arguments have merit.

            Affirmed.