This opinion will be unpublished and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

A05-250

 

State of Minnesota,
Respondent,

vs.

Allan Talmage Weatherford,
Appellant.

 

Filed May 2, 2006

Reversed and remanded

Wright, Judge

 

Rice County District Court

File No. K2-03-843

 

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

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

 

Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 North West Third Street, Faribault, MN  55021 (for respondent)

 

 

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

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from convictions of fifth-degree controlled substance crime and misdemeanor theft, appellant argues that the district court erred in denying his motion to suppress evidence obtained from a warrantless search of his residence, and by allowing a portion of his omnibus hearing testimony to be introduced at trial.  We reverse and remand for further proceedings.

FACTS

 

On March 10, 2003, the Rice County Sheriff’s Department received a report that a theft of LP gas tanks had occurred at Dennison Depot.  A surveillance video showed a pickup truck pull into the Dennison Depot parking lot, back up to the area from which the tanks were stolen, park for a short time, and drive away.  Police sent a teletype with a description of the vehicle to other law-enforcement agencies.  A Northfield police officer reported to the Rice County Sheriff’s Department that he had stopped a vehicle matching the description of the truck driven by the theft suspect; and he identified appellant Allan Weatherford as the driver of the vehicle. 

On March 22, 2003, Sergeant William Skarupa went to Weatherford’s residence and spoke with him about the theft.  Weatherford denied knowledge of the theft and stated that he was fishing on March 8, but it was possible that someone else was driving the truck that day.

Sergeant Skarupa shared this information with an agent from the South Central Drug Investigation Unit (SCDIU), who believed that Weatherford may be involved in methamphetamine production because LP gas tanks are commonly used to transport ammonia for the purpose of methamphetamine manufacture.  Agents also had received information that Weatherford lived in the Quonset building on his mother’s property. 

On April 3, 2003, SCDIU agents went to speak with Weatherford’s mother to request her consent to search her property.  After the agents advised Weatherford’s mother why they were there, she stated that she owned the property and gave them permission to search her property, including the Quonset building in which Weatherford was residing.  The building was locked.  Weatherford’s mother stated that she did not have a key because Weatherford had secured the building.  An agent looked through an opening between the doors of the building and saw LP gas tanks and Weatherford’s truck.  Because his truck was visible, Weatherford’s mother stated that she believed Weatherford was in the camper inside the building.  The agents asked if they could pry the doors open, and Weatherford’s mother consented.  But before doing so, the agents knocked and, after a few minutes, Weatherford came to the door.

The agents told Weatherford that they had his mother’s permission to search the Quonset hut.  Weatherford then removed the load binder that secured the doors and opened the doors.  The agents did not request Weatherford’s consent before entering the building; and Weatherford did not give his consent.

After a brief search, the agents located an LP gas tank and items indicative of methamphetamine production.  They then decided to obtain a search warrant.  After obtaining a search warrant, the agent returned and searched the premises.  During the search, they found items consistent with methamphetamine manufacture, including solvents, tubing, and a coffee filter, which later tested positive for the presence of methamphetamine. 

Weatherford was charged with first-degree controlled-substance crime, manufacture of methamphetamine, a violation of Minn. Stat. § 152.021, subd. 2a (2002); fifth-degree controlled-substance crime, possession of methamphetamine, a violation of Minn. Stat. § 152.021, subd. 2(1) (2002); and misdemeanor theft, a violation of Minn. Stat. § 609.52, subd. 2(1) (2002).

Weatherford moved to suppress all evidence obtained as a result of the warrantless search of his residence, arguing that his mother lacked the authority to consent to the search.  An omnibus hearing was held, during which Weatherford testified in support of the motion to suppress.  On direct and cross-examination at the omnibus hearing, Weatherford testified about his knowledge of the stolen LP tanks.

The district court issued an order denying the motion to suppress.  Weatherford moved for reconsideration of the ruling on the suppression motion and moved to dismiss the manufacturing charge for lack of probable cause.  The district court denied both motions.

At the jury trial that followed, a portion of Weatherford’s omnibus-hearing testimony regarding the stolen LP tanks was introduced over his objection.  The jury found Weatherford not guilty of methamphetamine manufacturing but guilty of possession of methamphetamine and theft.  This appeal followed.

D E C I S I O N

 

I.

Weatherford argues that the district court erred in denying his motion to suppress the evidence obtained from the search of his residence on the ground that the warrantless entry and search violated his constitutional rights. 

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches by the government of “persons, houses, papers, and effects.”  “It is well-settled law that individuals have a reasonable expectation of privacy in their homes and thus have the capacity to challenge warrantless entries and searches of their homes.”  In re Welfare of B.R.K., 658 N.W.2d 565, 572 (Minn. 2003). 

Subject to a few specific exceptions, a warrantless search of a private residence is per se unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); In re Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn. 1992); State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985).  A search of a residence that is conducted pursuant to consent constitutes an exception to the requirement to have both a warrant and probable cause.  Hanley, 363 N.W.2d at 738 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973)). 

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. 

 

Id. (alteration in original) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)). [1] 

The district court determined that Weatherford’s mother had actual authority to consent to the search and therefore denied the motion to suppress.  “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).  When considering whether the police obtained a valid consent to search, the existence of actual or apparent authority to consent is a legal issue, which we review de novo.  See State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998) (holding, without deference to the district court, that police obtained consent to search from someone with apparent authority).

A.

Weatherford argues for the first time on appeal that his mother lacked the capacity to consent because she has Alzheimer’s disease.  The state argues that, because this issue was not addressed before the district court, it is waived.  We will not decide issues raised for the first time on appeal, including constitutional questions of criminal procedure, unless justice requires that the issues be considered and doing so would not unfairly surprise a party to the appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); see Minn. R. Crim. P. 10.03 (stating that defendant waives an issue that is available but not raised in pretrial motion).   

Weatherford does not address why we should consider this new argument on appeal.  And because the issue was not raised before the district court, the factual record regarding the capacity of Weatherford’s mother to consent is inadequate for our consideration.  See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that because the state failed to develop a factual record with respect to an issue not raised in district court, resolution of that issue was not in the interests of justice); State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (declining to consider the validity of a stop because the issue was not raised below and the record on the issue was insufficient).  The only reference to Alzheimer’s disease in the entire pretrial record is in the transcript of the May 12, 2004 hearing when Agent Petterson testified regarding a discovery issue that was before the district court.  Defense counsel asked Agent Petterson, “When you went out to Mrs. Weatherford’s place, it was your understanding that she had Alzheimer’s?”  Agent Petterson responded, “We had been told that she had indications of it, yes.”

Because Weatherford did not raise this issue before the district court in his motion to suppress, facts critical to an analysis of Weatherford’s mother’s mental capacity were not developed.  In light of the incomplete record as to this issue, it is not in the interests of justice to consider this argument on appeal. 

B.

Weatherford also argues that his mother did not have actual authority to consent to the search of the Quonset building because he had exclusive access.  Police may obtain valid consent to search from a third party who has common authority over the premises to be searched.  Hanley, 363 N.W.2d at 738.  As the United States Supreme Court explained in Matlock, “[t]he authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements . . . .”  415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7.  Common authority “rests rather on mutual use of the property by persons generally having joint access or control for most purposes . . . .”  Id.  In State v. Buschkopf, the Minnesota Supreme Court reasoned that “a finding of ‘mutual use’ is the essential ingredient of effective consent.”  373 N.W.2d 756, 767 (Minn. 1985) (emphasis added), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990). 

In support of his argument that his exclusive access to the Quonset building deprived his mother of actual authority to consent, Weatherford relies on State v. Licari, 659 N.W.2d 243, 250-52 (Minn. 2003) (holding that renter had a reasonable expectation of privacy and landlord’s contractual right to inspect did not give landlord actual authority to consent to search of rented storage space).  While acknowledging that some federal circuits place less emphasis on a finding of mutual use, the Licari court stated that under Minnesota law, a finding of mutual use remains essential.  Id. at 251.  In support of this principle, the Licari court cited with approval United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991), in which the D.C. Circuit ruled that, because the police lacked sufficient information regarding a mother’s mutual use of her adult son’s bedroom in her home to establish authority to consent, the search was unlawful.  Id. at 1074-75.

Here, the district court concluded:

[W]hile [Weatherford’s] mother did not have joint access or mutual use of the Quonset hut, she still had the authority to consent to a search of the building because [Weatherford] had not paid for exclusive use of the property.  Further, the only reason that [Weatherford’s] mother did not have joint access or mutual use of the Quonset hut was that [Weatherford] had secured the building and not given his mother a means to enter.  Thus, [Weatherford’s] mother had actual authority to consent to the search of the Quonset hut.

 

But as noted in Whitfield, the payment of rent is not a decisive factor in establishing authority to consent.  Id. at 1075.  Rather, mutual use is.  Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7; Licari, 659 N.W.2d at 251; Buschkopf, 373 N.W.2d at 767. 

            The state relies on State v. Schotl, 289 Minn. 175, 182 N.W.2d 878 (1971), and State v. Kinderman, 271 Minn. 405, 136 N.W.2d 577 (1965), in support of its argument that Weatherford’s mother had the authority to consent to the search.  In Schotl, the Minnesota Supreme Court stated that “a parent in control of premises in which the child resides may consent to a search thereof even though it may produce incriminating evidence.”  289 Minn. at 177, 182 N.W.2d at 879.  The record in Schotl established that the defendant’s mother held a possessory interest in the home, the search was of a room inside the home, and the defendant did not have exclusive possession because members of the family had access to and indeed used the room.  Id. at 178-79, 182 N.W.2d at 880.  On facts similar to those in Schotl, Kinderman held that a father who was in control of the property could consent to the search of the family home in which his 22-year-old son resided.  271 Minn. at 410-412, 136 N.W.2d at 580-82. 

            The instant facts are distinguishable from those in Schotl and Kinderman.  Unlike the adult children in Schotl and Kinderman, Weatherford did not reside within the “family home” with his mother.  Rather, he lived in a separate building on her property.  Weatherford’s mother had not been in the Quonset building for some time; she did not have access to it nor did she use it.  Minnesota has adopted the rule that mutual use is a prerequisite to a third party having authority to consent to a search.  Licari, 659 N.W.2d at 251; Buschkopf, 373 N.W.2d at 767.  The cases relied on by the state are factually distinguishable from the present case and predate Matlock, and, therefore, are not controlling.

Here, according to the district court’s findings, which are not challenged by either party and are supported by the record, when the agents gained entry into the Quonset building, they knew that Weatherford resided in a camper inside the building, that Weatherford’s mother did not have a key or any means to access the Quonset building because Weatherford had secured the entries, and that she had not used the building at any time in the recent past.  The district court also found that Weatherford did not consent to the search of the Quonset building, that the agents were relying on his mother’s consent, and that Weatherford’s mother did not have joint access or mutual use of the property.  Without mutual use, the state cannot establish that the consent to search was valid. 

Finally, a claim of apparent authority to consent is unsustainable here.  “[A]pparent authority exists only if the authority claimed by the third party would, if true, be sufficient to satisfy the legal test for actual authority.”  Licari, 659 N.W.2d at 250.  “Stated another way, if the facts possessed by police would not establish actual authority to consent under the law, police reliance on those facts cannot be reasonable.”  Id. at 253.

Because there was no mistake of fact in this case, apparent authority is inapplicable.  And even if the agents were proceeding on a theory that, as the property owner, Weatherford’s mother had the right to enter the Quonset building, her consent was invalid.  See id. at 251-52 (rejecting rights of access as basis for authority to consent to search).  Any assurances that the agents received from Weatherford’s mother that the Quonset building was her property fail to establish mutual use.  Therefore, such assurances do not establish actual or apparent authority to consent.

The district court therefore erred in denying the motion to suppress all evidence obtained as a result of the warrantless search. 

II.

Weatherford also argues that the district court erred in allowing, over his objection, a police officer to read a redacted portion of Weatherford’s omnibus-hearing testimony into the record at the jury trial.  Although our decision on the first issue is dispositive, we nevertheless address this argument.

“Testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of guilt at trial and can be used only for impeachment purposes, if at all.”  State v. Christenson, 371 N.W.2d 228, 232 (Minn. App. 1985) (citing Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968)).  In establishing this rule, the United States Supreme Court in Simmons reasoned:

[The defendant] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.  In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.  We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.

 

390 U.S. at 394, 88 S. Ct. at 976.

The state contends that admitting this evidence was not error because this rule applies only to suppression hearing testimony that is an “integral part” of the Fourth Amendment exclusion claim.  See United States v. Kahan, 415 U.S. 239, 239-43, 94 S. Ct. 1179, 1179-81 (1974) (allowing testimony at bail hearing to be admitted at trial because testimony regarding indigence was given in order to obtain counsel and did not involve assertion of Fourth Amendment claim); State v. Van Wert, 294 Minn. 464, 465-66, 199 N.W.2d 514, 516 (1972) (stating that testimony given at bail hearing regarding address is not integral to constitutional right to reasonable bail).  The testimony at issue here, the state argues, was about Weatherford’s knowledge of the stolen LP tanks, not about the search of the residence. 

The state’s characterization that the omnibus-hearing testimony at issue is not an integral part of the Fourth Amendment claim is not supported by the record.  Weatherford’s testimony about the propane tanks on direct examination at the omnibus hearing apparently was offered to refute application of the plain-view exception to the warrantless search because, looking between the Quonset-building doors, the agents observed LP tanks  that, in fact, were not the stolen ones.  This testimony is not at issue.  Rather, the state elicited the testimony at issue here during cross-examination at the hearing on the suppression motion.  Using this testimony against Weatherford at trial is expressly proscribed by Simmons, 390 U.S. at 394, 88 S. Ct. at 976 and Christenson, 371 N.W.2d at 232.

The state also argues that admitting the testimony was not error because it was admitted solely for impeachment purposes.  This argument also is unavailing because the state used the testimony to contradict an officer’s testimony about an out-of-court statement by Weatherford, not to impeach Weatherford’s trial testimony.  Impeachment, under Minn. R. Evid. 613(a), refers only to impeaching a witness with his or her prior inconsistent statement, which was not done in this case.  And under Minn. R. Evid. 613(b), unless the interests of justice require otherwise, “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness [regarding the statement].”  Not one of the requirements of rule 613 was met here.

Our review of the record establishes that the state did not introduce this evidence to impeach Weatherford, nor was Weatherford given a prior opportunity to explain the statement before it was introduced.  Rather, the state had an officer read Weatherford’s omnibus testimony during its case-in-chief.  And the state’s claim that it introduced the omnibus testimony based on defense counsel’s assertion that Weatherford would likely testify also mischaracterizes the record.  The only reference that Weatherford’s counsel made regarding Weatherford testifying was offered during his objection to admitting the statement at issue.  Specifically, Weatherford’s counsel stated, “We’re still objecting to introduction of that statement in the state’s case in chief and maintain that if defendant takes the stand and testifies otherwise, he may be impeached with that statement, including bringing it in.”  Admitting the omnibus testimony over Weatherford’s objection under these circumstances was error. 

If the district court has erred in admitting evidence, we determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  “A conviction can stand only if the error committed was harmless beyond a reasonable doubt.”  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  In completing a harmless-error analysis, the inquiry is not whether the jury could have convicted the defendant without the testimony, but rather, what effect the testimony had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to the testimony.”  Id. at 811 (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

The record establishes that, until the time the statement was admitted, the only evidence against Weatherford regarding the theft charge was testimony from the manager at the Dennison Depot and the video-surveillance footage.  Neither piece of evidence placed Weatherford at the scene.  Weatherford had denied involvement in the theft when questioned by Sergeant Skarupa.  When the district court allowed Weatherford’s omnibus testimony to be read during the state’s case, the defense was prejudiced.  After Weatherford’s omnibus testimony was introduced, his counsel had no choice but to try to mitigate the damaging effects of the statement by explaining the inconsistent statements.  And Weatherford had no choice but to testify and to request that Jared Jones, the individual who stole the tanks, testify regarding Weatherford’s involvement in the theft. 

As the record indicates, even Weatherford agreed that if he testified and lied during his testimony, the state could use the prior inconsistent statement as impeachment.  The district court, however, did not make the state wait for that opportunity.  Rather, it erroneously permitted the state to introduce the statement through an officer during the state’s case-in-chief.  This error steered the course of the defense and limited options for the defense of the theft charge.  Consequently, because it cannot be said that the theft conviction was surely unattributable to the error, admitting the statement was not harmless error.

Reversed and remanded.