This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ง 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-247

State of Minnesota,

Respondent,

vs.

Susan Ranae Jackson,

Appellant.

Filed ญญญFebruary 28, 2006

Affirmed

Dietzen, Judge

Itasca County District Court

File No. K1-03-2457

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

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

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

DIETZEN, Judge

Appellant challenges her convictions of second-degree controlled substance crime and child endangerment, arguing that (1) the search warrant used to seize evidence from her home lacked probable cause; (2) the search was conducted in violation of Minn. Stat. ง 626.14 (2002), which bars nighttime searches; (3) her statements taken at the county jail should have been suppressed because they were tainted by a Miranda violation that occurred the previous evening; (4) the district court erred by failing to obtain appellant’s waiver of trial rights under Minn. R. Crim. P. 26; (5) the district court improperly sentenced appellant because her convictions relate to a single behavioral incident; and (6) appellant should be permitted to challenge her criminal history score at a later date. Because we conclude that probable cause existed for the search warrant and that the statutory violation did not have a constitutional dimension, that appellant’s statements at the county jail were not tainted, that appellant did waive her rights under Minn. R. Crim. P. 26, and that appellant was properly sentenced, we affirm. Because the record is not properly developed, we do not address appellant’s criminal history score argument.

F A C T S

On December 11, 2003, Investigator Dean Scherf was conducting a narcotics investigation of Todd Dawson and appellant Susan Ranae Jackson in the afternoon hours. Based on information he had gathered and a tip from a confidential reliable informant (CRI), Scherf obtained and executed a search warrant of Dawson’s vehicle at 6:28 p.m. after he left appellant’s home. Scherf found a large quantity of methamphetamine, a large amount of cash, and other items consistent with selling and dealing drugs.

Based on the information from the CRI, and information from Dawson, Scherf obtained a warrant to search appellant’s home that same evening. In his affidavit, Scherf stated that the search of Dawson’s vehicle resulted in the seizure of approximately 53 grams of methamphetamine, a large amount of cash, a digital gram scale and plastic baggies. The information came from a CRI that had provided true and correct information to Scherf in the past. The CRI told Scherf that he had been at appellant’s residence when contraband was observed in Dawson’s vehicle, and that Dawson left some methamphetamine at appellant’s residence. Scherf independently verified that Dawson had been at appellant’s residence before he had stopped Dawson. The application also requested permission to conduct a nighttime search of appellant’s residence. The district court signed the warrant authorizing the nighttime search.

Scherf and three other officers executed the search warrant at 9:25 p.m. They knocked on appellant’s door and then entered the residence. Upon entering the residence, the officers found appellant at the kitchen table with her two teenage children. Appellant was handcuffed and given a copy of the search warrant, and informed that the officers were there to search for drugs. Scherf explained that if appellant did not tell them where the drugs were, the officers would have to tear the house apart looking for drugs. Appellant was also told that things would go better for her if she cooperated.

Appellant stated that she wanted to speak with the officers out of the presence of her children. Appellant, Scherf, and two officers then walked into appellant’s bedroom. Appellant was not given a Miranda warning. Over the next hour and a half, appellant produced methamphetamine and other drug contraband from various locations in her bedroom. Appellant was extremely talkative and appeared to be under the influence of methamphetamine. Appellant admitted to using methamphetamine and briefly discussed her relationship with Dawson. Appellant was arrested around 11 p.m. and taken to the county jail, and her children were taken by appellant’s father to his home.

The next morning, while in custody, appellant was taken to an interview room. Scherf began the meeting by reading appellant her Miranda warning and asked if she was willing to speak with him. Appellant agreed to do so. During the interview, appellant discussed in detail her interactions and relationship with Dawson, other people in the community who Dawson supplied with drugs, and how she used methamphetamine.

On December 16, 2003, appellant was charged with two counts of second-degree controlled substance crime in violation of Minn. Stat. ง 152.022, subds. 1 and 2 (2002), as well as two counts of child endangerment in violation of Minn. Stat. ง 609.378, subd. 1(b)(2) (2002).

Appellant moved the district court to suppress the evidence obtained pursuant to the search warrant on the basis that there was no probable cause, and that the statements she made that evening and the next morning violated Miranda, and therefore, should be suppressed. The district court denied the motion to suppress. In doing so, the district court concluded that there was probable cause to issue the search warrant, and that, although the nighttime search warrant may not have been justified, the violation was purely statutory rather than constitutional in dimension so that the violation did not require suppression. The district court also concluded that appellant’s statements that evening were voluntary, and were the result of responding to questions regarding the location of drugs in her home. Because the statements made that evening were the product of an unwarned custodial interrogation, the district court ruled that they violated Miranda and thus, were inadmissible. But the district court concluded that appellant’s statements the following morning did not violate Miranda and were, therefore, admissible.

On September 8, 2004, appellant entered a guilty plea to the charge of second-degree controlled substance crime in violation of Minn. Stat. ง 152.022, subd. 1(1) in exchange for dismissal of the remaining charges. Following her guilty plea, appellant waived all of her trial rights following the procedure outlined in Minn. R. Crim. P. 15. Subsequently, appellant changed her mind and requested to change her plea to not guilty.

On November 8, the district court acknowledged that the request had been made to change the plea and that appellant wished to proceed to a trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Before allowing appellant to do so, the district court reminded appellant that she had previously waived her right to a jury trial and that she was agreeing to change her plea and proceed with a stipulated facts trial in which the district court would determine her guilt or innocence. Following appellant’s agreement on the record, the district court granted the motion to change the plea, and then proceeded to the trial. Based on the stipulated facts, the district court found her guilty of all four charges and she was sentenced to 105 months on the second-degree controlled substance conviction and two 12-month concurrent sentences on the child endangerment convictions. This appeal follows.

D E C I S I O N

Appellant argues that the search warrant was not based on probable cause. “When reviewing pretrial orders on motions to suppress evidence, appellate courts 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). Questions of reasonable suspicion are reviewed de novo. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

To determine whether probable cause exists, the issuing court must look to the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). Under this test,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. A magistrate’s determination of probable cause should be “paid great deference by reviewing courts” and a reviewing court should not review that determination de novo. Id. at 236, 103 S. Ct. at 2331 (citation omitted). “The fourth amendment requires only that the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Gates, 462 U.S. at 236, 103 S. Ct. at 2331) (quotation and alterations omitted).

“In reviewing the sufficiency of an affidavit under the totality of the circumstances test, courts must be careful not to review each component of the affidavit in isolation. Even if each component is judged unsubstantial, the components viewed together may reveal in the informant’s tip an internal coherence that gives weight to the whole.” Id. (quotation and alterations omitted).

Appellant argues that the CRI’s information “lacked veracity, was not sufficiently corroborated, and failed to establish his/her basis of knowledge” and that the application “failed to establish a nexus between the drugs found in Dawson’s car and appellant’s home.” Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant’s knowledge. See State v. Yahnke, 336 N.W.2d 299, 300 (Minn. 1983); see also State v. Buchholtz, 295 N.W.2d 629, 632 (Minn. 1980) (noting that informant who personally observed marijuana in building within 72 hours was sufficient). And even if police do not corroborate a key detail, corroboration of other details does “lend credence to the informant’s tip.” Wiley, 366 N.W.2d at 269; see also State v. Kessler, 470 N.W.2d 536, 540 (Minn. App. 1991) (noting that while the information conveyed in the affidavit by the CRI failed to establish probable cause on its own because of failure to establish the CRI’s reliability or past performance, the affiant corroborated the information by making a “flyover” of the premises).

Here, the affidavit contains several indicia of reliability and information sufficient to infer that appellant had methamphetamine at her residence. The affiant also states that he “found items indicative of a drug dealer in [Dawson’s] possession just shortly after Dawson left [appellant’s] residence.” And there was sufficient indication that the CRI, who had provided accurate information in the past, was reliable. The police arrested Dawson and seized contraband from his car based on the CRI’s information. The CRI also provided information that Dawson had controlled substances in his car while he stayed at appellant’s residence. Dawson corroborated that he was staying at appellant’s residence and left there shortly before he was stopped, arrested, and the contraband seized. For these reasons, we conclude that there was probable cause to support the warrant.

II.

Appellant argues that the execution of the warrant at 9:25 p.m. violated her constitutional rights. Specifically, appellant contends that because the district court agreed that there was no justification for a nighttime search warrant, that its execution at 9:25 p.m. violated the statute.

In Minnesota, search warrants may be served between the hours of 7:00 a.m. and 8:00 p.m. unless the issuing court determines on the basis of the facts stated in the affidavits that a nighttime search outside those hours “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. ง 626.14 (2002). Underlying the Minnesota statutory rule is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home. See State v. Stephenson, 310 Minn. 229, 233, 245 N.W.2d 621, 624 (Minn. 1976).

Here, the justification provided in the affidavit for the search warrant was that “[t]his investigation has led your affiant into the nighttime scope of search warrant.” We agree with the district court that the police did not make a sufficient showing to justify inclusion of the nighttime search clause. But we conclude that the error in issuing a nighttime search here was not of a constitutional dimension. Although the warrant was executed in the nighttime, it was executed at a reasonable hour, i.e., 9:25 p.m., when most people are still awake. When the police executed the warrant, the lights in the house were on, and appellant and her children were gathered at the kitchen table. We believe that the holding of the Lien court supports this result. See State v. Lien, 265 N.W.2d 833 (Minn. 1978). In Lien, the supreme court concluded that “the intrusion was not the kind of nighttime intrusion—with people being roused out of bed and forced to stand by in their night clothes while the police conduct the search—that our statutory rule against nighttime execution of search warrants is primarily designed to prevent. Thus, while there was technical violation of our statute, the violation was not of a constitutional nature . . . .” Id. at 841.

Therefore, we conclude that the nighttime execution of the warrant did not require suppression based on the statutory violation.

III.

Appellant argues that the district court erred in not excluding her testimony during an interview the next morning at the county jail because it violated her Miranda rights. The Fifth Amendment protects a person against compelled self-incrimination. U.S. Const. amend. V. Because of the coercion inherent in custodial interrogations, a suspect must be “warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).

In the United State Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985), the Court concluded that the traditional “taint” analysis does not apply to Miranda violations, stating:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at 309, 105 S. Ct. at 1293. Elstad did note, however, that the failure to give a Miranda warning does create “a presumption of compulsion.” Id. at 307, 105 S. Ct. at 1292.

Appellant nonetheless contends that the statements are inadmissible following the reasoning set forth in State v. Bailey, 677 N.W.2d 380 (Minn. 2004). In Bailey, officers arrested the defendant with their guns drawn. Id. at 385-86. After placing him in the squad car, the officers commenced interrogation of the defendant which continued while he was transported to the police station and was continued for a lengthy period of time at the police station. Id. at 386. Subsequently, the officers read the Miranda warnings before continuing to question the defendant. Id. The information the defendant provided to the officers following the Miranda warning was essentially the same as what he said before the warning. See id. The Bailey court suppressed his post-Miranda statements to the officers, holding:

Following Carter, we hold that where a suspect is apprehended under coercive circumstances, is subjected to lengthy custodial interrogation before being given a Miranda warning, does not have the benefit of a significant pause in the interrogation after the Miranda warning is given, and essentially repeats the same inculpatory statements after the Miranda warning as before, the statements made after the Miranda warning are inadmissible.

Id. at 392.

We turn then to factors considered by the Bailey court to determine whether appellant’s statements at the county jail were knowingly and voluntarily made. As to the first factor, i.e., whether the suspect was apprehended under coercive circumstances, we believe that appellant’s initial encounter with the police that evening was somewhat coercive in the sense that it involved the execution of the search warrant, and placing her in handcuffs. But appellant volunteered to speak with police in the bedroom. The police had requested her cooperation or they would thoroughly search the house for drugs. Appellant was very talkative and appeared eager to talk with police.

Under these facts, the district court found that the interview with appellant was not coercive because the primary motive behind the officer’s questioning of appellant was to facilitate the execution of the search warrant. We agree. The test for an involuntary statement is whether police conduct would “deprive a suspect of his ability to make an unconstrained and wholly autonomous decision to speak as he did.” State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (citation omitted). Whether a defendant’s statement to law enforcement officers is voluntary depends on the totality of circumstances. Id. Factors include the defendant’s “age, maturity, intelligence, education and experience, as well as the defendant’s ability to comprehend.” Id. (quotation omitted). Here, the police did not cross the line by informing appellant of the natural consequences of her failure to cooperate, i.e., that they would be required to meticulously search her residence for drugs.

Second, we review the length of the interrogation. Bailey, 677 N.W.2d at 392. Appellant was asked to locate the drugs on four separate occasions. On each occasion, she provided the authorities with a different location for the drugs. The district court found, “[t]he unwarned interrogation that occurred in [appellant’s] home was not systematic or exhaustive, nor was it managed with psychological skill.” We find no evidence in the record of overreaching, intimidation, or efforts by the police to overcome appellant’s will. The interview concluded after appellant revealed all of the contraband, and she was immediately arrested and transported to the county jail.

Third, we review whether appellant had the benefit of a significant pause in the interrogation after the Miranda warning was given. Under this factor, we focus on the passage of time between the unwarned confession and the subsequent warnings and confession. Unlike Bailey, where the second confession came almost directly on the heels of the first, this case involves an interval of approximately 12 hours. We believe that the significant pause between the first and second interrogations was sufficient to dissipate any coercive effects caused by the execution of the search warrant the previous night.

Finally, we turn to whether the second interrogation essentially repeated the same inculpatory statements that were given in the previous interrogation. Id. Here, the district court concluded that the second interview at the county jail was more detailed and gathered more information, especially regarding appellant’s relationship with Dawson, and her
business interactions with him. The record supports the conclusion of the district court.

We recognize that this is a close case. But we conclude that the statements made by appellant at the county jail were knowingly and voluntarily made and did not violate her Miranda rights. We recognize that if the police are permitted to cure the illegality of coercive interrogation by merely providing the warning after they obtain inculpatory statements, police would have little incentive to give the warning at the beginning of their custodial interrogation. See id. Based on our review of the record, we believe that the police conduct did not constitute overreaching, intimidation, or was intended to overcome appellant’s ability to exercise her free will.

IV.

Appellant also argues that the district court erred by finding her trial rights were violated because the district court failed to obtain her waiver of rights as required under Minn. R. Crim. P. 26.01, subd. 3. In a Lothenbach proceeding, the defendant agrees to submit her case on stipulated facts pursuant to the procedures outlined in Lothenbach and concedes the truth of the facts that the state presents to the district court. State v. Riley, 667 N.W.2d 153, 157 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). The Lothenbach procedure “preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.” State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999). It is often used to preserve a constitutional issue, i.e., denial of a motion to suppress for appeal purposes. See Lothenbach, 296 N.W.2d at 858.

Minn. R. Crim. P. 26.01, subd. 3, links Lothenbach to the Minnesota Rules of Criminal Procedure. See Minn. R. Crim. P. 26.01 cmt (referring to Lothenbach); Riley, 667 N.W.2d at 158 (referencing connection between Lothenbach and rule but noting that comments to rules of criminal procedure are advisory only and not binding). The rule was promulgated nine years after Lothenbach and states that before proceeding to a trial based on stipulated facts, such as a Lothenbach proceeding, the defendant must:

acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record.

Minn. R. Crim. P. 26.01, subd. 3. Interpretation of the rules of criminal procedure is a question of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998). Appellate courts strictly construe rule 26.01. State v. Thompson, 694 N.W.2d 117, 122 (Minn. App. 2005), review granted (Jun. 28, 2005).

We have reviewed the record and it is clear that appellant’s intent in changing her plea and proceeding to a Lothenbach proceeding was to preserve for appeal the denial of the motion to suppress, (i.e., that the warrant was not based on probable cause, and that her statements to the police violated her Miranda rights) and to have a fact-finder determine guilt or innocence on stipulated facts. There is no evidence in the record that appellant intended to assert other rights that she had previously waived on September 8. Because the status of those rights remained unchanged in the change from a guilty plea to a Lothenbach stipulation, it was not necessary to require that appellant waive the rights again on November 8. Therefore, we conclude that the district court was not required to obtain the waiver of appellant’s other constitutional rights that had been previously waived.

Appellant argues that her convictions stem from a single behavioral incident, and therefore, her sentence for sale of methamphetamine and child endangerment was improper. We disagree. “[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses . . . .” Minn. Stat. ง 609.035, subd. 1 (2004). The defendant may not be sentenced for two or more offenses that were committed as part of the same behavioral incident. State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986).

Whether multiple offenses arose out of the same behavioral incident depends on the facts of each case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). In determining whether two convictions arose out of a single behavioral incident, we are to consider time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective. State v. Richardson, 633 N.W.2d 879, 888 (Minn. 2001). We must also consider whether the offenses “(1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind.” State v. Johnson, 653 N.W.2d 646, 651-52 (Minn. App. 2002). Until the state provides evidence that appellant’s acts were separate and distinct criminal offenses, it should be assumed they are part of a single behavioral incident. See State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000). The district court’s decision will not be reversed unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

Sale of methamphetamine and child endangerment are different in nature and require proof of different elements. See Minn. Stat. ง 152.022, subd. 1 (2002) (controlled substance crime); Minn. Stat. ง 609.378, subd. 1(b) (2002) (child endangerment). The sale of the methamphetamine resulted from a single incident, and the child endangerment resulted from an ongoing course of conduct. See State v. Scott, 298 N.W.2d 67, 68 (Minn. 1980) (holding that where possession of burglary tools occurred on different date than burglary, defendant could be sentenced for both offenses). The district court did not err by imposing multiple sentences for sale of a controlled substance and child endangerment.

VI.

Finally, appellant argues that she did not waive her right to challenge her criminal history score. The record is not adequately developed on this issue, so we do not address this claim. But we preserve this issue so that appellant may challenge it in the future if she so chooses.

Affirmed.