STATE OF MINNESOTA

IN COURT OF APPEALS

A05-117

State of Minnesota,
Respondent,

vs.

Maximiano Becerra Montanez,
Appellant.

Filed February 21, 2006

Affirmed

Stoneburner, Judge

Stearns County District Court

File No. K604229

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

Janelle Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

John M. Stuart, Minnesota Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges his conviction of first-degree controlled substance crime, arguing that the district court erred by failing to suppress evidence obtained in an illegal search of a bag in his car. Because the district court did not err in concluding that the evidence would have inevitably been discovered in an inventory search of appellant’s vehicle, we affirm.

FACTS

Melrose police officer Eric Zirbes lawfully stopped a vehicle driven by appellant Maximiano Becerra Montanez for speeding. Because appellant did not have a valid Minnesota driver’s license, Zirbes decided to have the vehicle towed, cite appellant for driving without a license, and give him a verbal warning for speeding. Zirbes pat-searched appellant for weapons and pulled out his wallet. Zirbes asked appellant if he could look inside his wallet and appellant consented. Zirbes did not find any weapons but found $900 in appellant’s wallet. Appellant explained that he always carried that much cash because he did not have a bank account. Appellant accepted Zirbes’s offer of a ride home. Zirbes asked appellant if he wanted anything out of his vehicle and appellant said he wanted to retrieve a bag of child’s clothing. Zirbes put appellant in the locked squad car and went to appellant’s vehicle to get the bag. Appellant testified that when the officer said that he would get the bag for appellant, appellant said, “No, forget it,” but Zirbes testified that he did not hear appellant tell him not to get the bag.

Zirbes found the bag and looked inside for weapons. He testified that, “[s]itting right on top of the bag was a little smaller than a tennis ball size of white powdery substance,” that appeared to be methamphetamine. Zirbes left the bag in the vehicle and then asked appellant if “everything in the vehicle belonged to him.” Appellant replied “Yes.” Zirbes advised appellant that he was under arrest for possession of a controlled substance. Zirbes did not ask appellant for permission to search his vehicle and never asked appellant to sign a consent form after the search.

Appellant was charged by complaint with controlled-substance crime in the first degree pursuant to Minn. Stat. § 152.021, subds. 2(1) and 3(a) (2002). Appellant moved to suppress all of the evidence seized and all derivative evidence, including his statements. After a hearing, the district court granted appellant’s motion to suppress his statements and denied his motion to suppress the drugs found in the vehicle, reasoning that the drugs would inevitably have been discovered during an inventory search of the vehicle. A jury found appellant guilty of first-degree controlled substance crime. Appellant was given the presumptive sentence of 86 months. This appeal followed.

D E C I S I O N

“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).

Warrantless searches are generally per se unreasonable and prohibited by the Minnesota and United States Constitutions. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). The state has the burden of proof to establish the existence of an exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). The inventory exception to the warrant requirement “permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation.” Id.at 628. “[A]n inventory conducted pursuant to a standard police procedure prior to lawfully impounding an automobile” is not unconstitutional under the Fourth Amendment. State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977). Inventory searches serve a caretaking purpose for the “protection of the owner’s property while it remains in police custody; the protection [of] the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 3097 (1976) (citations omitted).

In determining whether an inventory search is reasonable, the threshold inquiry involves the propriety of impounding the vehicle because the act of impoundment gives rise to the need for and justification of the inventory search. Goodrich, 256 N.W.2d at 510 (Minn. 1977). “The state’s interest in impounding must outweigh the individual’s Fourth Amendment right to be free of unreasonable searches and seizures.” Id. “If impoundment is not necessary, then the concomitant search is unreasonable.” Id. “The police will generally be able to justify an inventory when it becomes essential for them to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger.” City of St. Paul v. Myles, 298 Minn. 298, 304, 218 N.W.2d 697, 701 (1974). The impound is unreasonable where police assume custody of the vehicle “for no legitimate state purpose other than safekeeping, and where defendant had arranged for alternative means, not shown to be unreasonable, for the safeguarding of his property.” Goodrich, 256 N.W.2d at 507.

Appellant argues that (1) the search of the bag in his vehicle was not a valid inventory search; (2) impoundment of his vehicle was improper, unnecessary, and not conducted under an established policy; and (3) the district court erred when it found that the drugs would have been inevitably discovered in an inventory search and denied his motion to suppress.

“The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.” Nix v. Williams, 467 U.S. 431, 443 n.4, 104 S. Ct. 2501, 2509 n.4 (1984). “If the prosecution can establish by a preponderance of the evidence that the [evidence] ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.” Id. “Inevitable discovery doctrine ‘involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.’” State v. Licari, 659 N.W.2d 243, 255 (Minn. 2003) (quoting Nix, 467 U.S. at 444 n.5, 104 S. Ct. at 2509 n.5).

In this case, the police department’s written towing policy leaves the decision of whether to have a vehicle towed to individual officers. The district court credited Zirbes’s testimony that among all officers there is an understanding as to which vehicles will be towed, and unattended vehicles are not left on the roadway even when there is no public-safety issue. Zirbes testified that when a vehicle is impounded he inventories the interior of the vehicle, glove box, trunk, and all containers in the vehicle to prevent allegations of missing items in the event the vehicle is broken into. Zirbes testified that it was his understanding that if appellant had offered to have a valid driver pick up the vehicle, Zirbes would have been obligated to help appellant make the arrangements in a timely manner, but appellant did not make such an offer.

The district court concluded that the impoundment was proper, the bag would have been legally located within the vehicle, and the methamphetamine would have been discovered during the inevitable inventory search. Because the evidence supports the finding that the impoundment was consistent with the Melrose Police Department’s policy, and the policy is designed to protect the property interests of the driver as well as to limit the department’s liability, we conclude that the district court did not err.

Appellant’s insistence that Zirbes’s search of the bag in his vehicle was not pursuant to an inventory search misses the point that the district court agreed with him on this issue. The district court specifically found that Zirbes did not have consent to retrieve or search items from appellant’s vehicle and did not justify Zirbes’s actions on any other basis. Because Zirbes did not have consent to remove the bag from the vehicle, it should have remained in the vehicle. The district court’s decision is based on the valid conclusion that if Zirbes had not searched the bag as he did, he, or another officer, would inevitably have searched the bag and discovered the drugs in connection with an inventory due to impoundment of the vehicle.

For the first time on appeal, appellant argues that Zirbes failed to satisfy Minn. Stat. § 169.041, subd. 2 (2001), which requires a written towing report and a four-hour waiting period before towing. Generally, a reviewing court “will not decide issues which were not raised before the district court.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). We decline to address this issue because it was not raised in the district court. We note, however, that appellant has failed to provide any authority that a violation of Minn. Stat. § 169.041 triggers application of the exclusionary rule.

Appellant also argues for the first time on appeal that Zirbes unlawfully expanded the scope of the stop when he pat-searched appellant. Although appellant asserts that the scope of his argument in the district court covered this issue, the record does not support his assertion. In the district court, appellant challenged the legality of the stop, the search of the vehicle, and questioning that occurred before police read appellant his Miranda rights. We decline to address the legality of the pat-down because appellant did not raise this issue in the district court. But we note that appellant has failed to demonstrate how this claim had any effect on the outcome of the trial. Appellant was convicted for possessing methamphetamine which was located in his vehicle. There is no reason to believe that the prosecutor’s one reference to the cash discovered in appellant’s wallet during the pat-search affected the verdict.

Affirmed.