This opinion will be unpublished and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

A05-1242

 

State of Minnesota,

Respondent,

 

vs.

 

Larry Senne,

Appellant.

 

Filed June 27, 2006

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Sibley County District Court

File No. 72-CR-04-74

 

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

 

Dave Schauer, Sibley County Attorney, Donald E. Lannoye, Assistant County Attorney, 307 North Pleasant Avenue, Box H, Winthrop, MN 55396 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Peter Cownan (certified student attorney), 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Larry Senne contends that the district court erred by denying his motion to suppress the evidence found during a search of his vehicle and by imposing an upward sentencing departure without stating the reasons for the departure on the record.  We affirm the district court’s denial of appellant’s motion to suppress but reverse the upward sentencing departure and remand for imposition of the presumptive guidelines sentence. 

D E C I S I O N

I.

            Appellant argues that the district court erred by denying his motion to suppress the evidence found during a police search of his vehicle because the officers who performed the search lacked probable cause to believe that the vehicle contained evidence of a crime.  We disagree.

An appellate court independently reviews the facts of a case and determines, as a matter of law, whether a district court erred by denying a motion to suppress.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  A determination of probable cause as it relates to warrantless searches is similarly subject to de novo review.  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citing Ornelas v. United States, 517 U.S. 690, 698-99, 116 S. Ct. 1657, 1663 (1996)).  When determining whether probable cause exists, courts must consider the totality of circumstances.  State v. Johnson, 689 N.W.2d 247, 251 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

Both federal and state constitutions protect people from unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A police search conducted without a search warrant is presumptively unreasonable and therefore unconstitutional.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  If police conduct a warrantless search, “[t]he state bears the burden of showing that at least one exception [to the warrant requirement] applies, or evidence seized without a warrant will be suppressed.”  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).  Under the automobile exception, the police may conduct a warrantless search of an automobile when they have probable cause to believe that the car contains evidence of a crime or contraband.  State v. Search, 472 N.W.2d 850, 852 (Minn. 1991) (citing United States v. Ross, 456 U.S. 798, 807-08, 102 S. Ct. 2157, 2164 (1982)).  Probable cause is defined as “a fair probability that contraband or evidence of a crime will be found in a particular place.”  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  Probable cause may be based on reasonable inferences from the circumstances.  See State v. Vereb, 643 N.W.2d 342, 348-49 (Minn. App. 2002).  

Here, at approximately 3:00 a.m. on November 20, 2004, the Winthrop police chief saw a man stop his truck in front of the chief’s house, exit the truck, and walk toward the chief’s house.  When the chief went outside to look for the man, he found appellant standing against the chief’s neighbor’s garage with his hand on the doorknob.  After questioning appellant about what he was doing, the chief and another officer searched the man’s truck and found check blanks and deposit slips in 17 different names.  The officers arrested the man. 

 The state charged appellant with attempted burglary in the second degree in violation of Minn. Stat. § 609.582, subd. 2(a) (2004), and possession or sale of stolen or counterfeit checks in violation of Minn. Stat. § 609.528, subd. 2 (2004).  The district court dismissed the burglary charge and denied appellant’s pretrial motion to suppress the evidence obtained during the officers’ warrantless search of his vehicle.  Appellant submitted the matter to the court on stipulated facts in order to obtain appellate review of the suppression issue pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). 

Appellant argues that the district court erred by denying his motion to suppress because the officers did not have probable cause to believe that his truck would contain evidence of a crime.  But when the officers searched appellant’s vehicle, they knew that (1) appellant stopped his truck in a residential neighborhood at about 3:00 a.m.; (2) he exited the truck and approached the nearby houses; (3) he had his hand on the doorknob of a garage; (4) he did not claim to know the owners of the garage; (5) he did not claim to have permission to enter the garage; (6) he was from out of town; (7) his explanation was that he was standing by the garage to get out of the wind; (8) he had a flashlight in his jacket pocket; and (9) he had a dark pair of gloves, a hat, and tools visible inside his truck.  Considering the totality of the circumstances and the reasonable inferences the officers could draw therefrom, we conclude that the officers had probable cause to believe that the car contained evidence of a crime.

Appellant asserts that the hat, gloves, and tools in plain view in the back of his truck were not “inherently or immediately incriminating.”  But the requisite inquiry does not examine the factors of probable cause in isolation; it considers the totality of the circumstances.  Johnson, 689 N.W.2d at 251.  Thus, we consider the hat, gloves, and tools in light of appellant’s presence in a residential neighborhood in the middle of the night with his hand on the knob of a door that he did not have permission to open and his dubious explanation that he left his vehicle and stood next to the garage in order to get out of the wind.  Because the officers had probable cause to believe that appellant’s vehicle would contain evidence of a crime, we affirm the district court’s denial of appellant’s motion to suppress the evidence found during the search. 

II.

            Appellant argues that the district court abused its discretion by sentencing him to an upward durational departure without stating the reasons for the departure on the record.  We agree.

A district court’s decision to depart from a presumptive sentence is reviewed for an abuse of discretion.  State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005).  A district court has discretion to depart only if aggravating or mitigating circumstances exist.  Id.  “[I]n exercising the discretion to depart from a presumptive sentence, the judge must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.”  Minn. Sent. Guidelines II.D.  The district court also must articulate reasons for the departure on the record at the sentencing hearing and in its departure report.  Williams v. State, 361 N.W.2d 840, 843-44 (Minn. 1985); see also Minn. R. Crim. P. 27.03, subd. 4(C) (stating that for felony convictions, the district court must state the reasons for departure on the record and state the reasons in a sentencing order or departure report).  

In Williams, the supreme court provided guidelines for reviewing courts to ensure compliance with the requirements that departures have adequate factual and record support.  361 N.W.2d at 844. 

1.         If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.

2.         If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.

3.         If the reasons given justify the departure, the departure will be allowed.

4.         If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.

5.         If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed. 

 

Id.  In State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003), the supreme court reaffirmed the requirement that the sentencing court must state, on the record at the time of sentencing, the reasons for departure.  If the sentencing court fails to state its reasons, then the matter shall be remanded for imposition of the presumptive sentence and not for the court to make findings “after the fact.”  Geller, 665 N.W.2d at 517. 

Here, the prosecution and the defense presented a joint sentencing recommendation to the court that called for an upward durational departure from the presumptive sentence of 23 months to 39 months in prison.  See Minn. Sent. Guidelines IV.  The district court then sentenced appellant to 39 months.  When the court announced the sentence, it acknowledged that the sentence was an upward durational departure, but did not state reasons supporting the departure.  Later the same day, the sentencing judge completed a departure report, listing multiple victims and the career offender provision, Minn. Stat. § 609.1095, subd. 4 (2004), as reasons for the departure. 

The joint recommendation and departure report notwithstanding, it is undisputed that the district court did not state reasons for the sentencing departure on the record.   Therefore, following supreme court precedent, we are compelled to conclude that no departure was allowed.  Geller, 665 N.W.2d at 517; Williams,361 N.W.2d at 844.  Because the court did not state a reason to support the upward departure, we reverse and remand for imposition of the presumptive sentence.

The state suggests that the proper remedy here is remand for a new sentencing hearing.  But the supreme court rejected this argument in Geller by holding that when a district court fails to state the reasons for departure on the record, remand to the district court for another opportunity to state the reasons for departure is not the proper remedy. 665 N.W.2d at 517.  Rather, the case must be remanded for imposition of the presumptive sentence.  Id.

            Affirmed in part, reversed in part, and remanded.