STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2139

State of Minnesota

Michael James Davis, Jr.

Filed June 13, 2006

Affirmed

Ross, Judge

Wright County District Court

File No. K8-05-1211

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

Thomas N. Kelly, Wright County Attorney, Brian A. Lutes, Assistant Wright County Attorney, 10 Second Street Northwest, Buffalo, MN 55313-1189 (for appellant)

Phillip S. Resnick, 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for respondent)

Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.*

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

ROSS, Judge

In this appeal by the state from a pretrial order suppressing evidence of drugs found in respondent Michael James Davis’s car, the state argues that police did not seize Davis or search his car and that respondent voluntarily revealed the contents of his glove box. Because we conclude that Davis did not voluntarily open his glove box, we affirm.

FACTS

On April 7, 2005, Minnesota State Patrol Lieutenant Sean Meagher responded to a rear-end automobile collision on an I-94 exit ramp in Wright County. Lieutenant Meagher approached the rear car to speak with its driver, Michael James Davis.

Lieutenant Meagher asked Davis about licensure and car ownership. Davis presented Lieutenant Meagher with a valid driver’s license and told him that the car belonged to his mother. Lieutenant Meagher asked Davis for proof of insurance, and Davis began to search the center console and passenger seat. Then Davis checked his pants pockets. Lieutenant Meagher suggested, “Glove box, maybe?” Davis responded, “No.” Davis left the car, opened a rear door, and looked for the insurance information in various articles of clothing and other objects on the back seat. Davis returned to sit in the driver’s seat, and Lieutenant Meagher again inquired, “Nothing in the glove box?” Davis told him that the glove box was locked, which Lieutenant Meagher found suspicious because the car keys were in the ignition.

Lieutenant Meagher then walked around the car to the passenger-side front door. He opened the door and leaned into the car. Lieutenant Meagher asked, “Why don’t you try the key?” He suggested, “It’s probably in there,” referring again to the glove box. Davis finally reached over, opened the glove box, and placed on the passenger seat what appeared to Lieutenant Meagher to be a glass jar containing marijuana and colorful glass pipes used to smoke marijuana. Lieutenant Meagher commented, “Oh, it’s not locked.”

Based on the marijuana and drug paraphernalia, Lieutenant Meagher searched the rest of Davis’s car. The search revealed a security box containing two pipes, a spoon coated with white residue, a digital scale with calibration weights, a baggie of white crystals, and a baggie of white powder. The state charged Davis with two counts of first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subd. 2(1) (2004).

Davis moved the district court to suppress the evidence on the ground that the search was unconstitutional. After a contested omnibus hearing at which Lieutenant Meagher testified and the district court viewed a video of the investigation and search, the court concluded that Lieutenant Meagher’s “suggestion to open the glove box was repeated, prolonged, and became coercive” and, therefore, that “the evidence must be suppressed as fruit of an unlawful search.” The state’s appeal challenges that conclusion.

D E C I S I O N

The state asks us to reverse the district court’s suppression decision. When the state appeals from the district court’s pretrial order, it must clearly and unequivocally demonstrate that the district court “has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.” State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977). Critical impact exists “not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). We first consider whether the suppression will have a critical impact on the state’s case. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).

The district court suppressed all of the evidence seized from Davis’s car, and the record reveals no other evidence to establish a controlled-substance crime. If the state cannot admit into evidence the contraband found in Davis’s car, it cannot establish Davis’s guilt beyond a reasonable doubt. The district court’s order will, therefore, render a successful prosecution impossible. We conclude that the state has met the critical-impact element.

The state argues that the district court erred by suppressing the evidence seized from Davis’s car. When the underlying facts are undisputed, this court independently reviews the record and determines, as a matter of law, whether the district court erred by suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Both the federal and state constitutions protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. We must balance the reasonableness of government intrusion against a citizen’s right to be free from the arbitrary interference of law officials. State v. Ferrise, 269 N.W.2d 888, 890 n.1 (Minn. 1978).

The state maintains that Davis voluntarily opened the glove box. We understand that if Davis indeed voluntarily presented Lieutenant Meagher with drugs and drug paraphernalia, the question is resolved in the state’s favor because uncoerced cooperation with police does not offend the Fourth Amendment or its Minnesota counterpart. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048 (1973);State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). But when an officer’s search rests on coerced, so-called “consent,” the search is constitutionally infirm. See Dezso, 512 N.W.2d at 881. The question here is not whether Davis consented to an officer’s search, but whether the officer so pressured Davis to expose the contents of the glove box that Davis’s decision to open it should not be treated as a voluntary act. The state concedes that this situation, therefore, does not fit squarely within the typical line of Fourth Amendment cases. But an individual’s consent to the opening of a private enclosure raises the same constitutional concerns regardless of whether it is the individual or the officer who physically opens the enclosure; either way, the officer’s conduct might coerce the consent that prompts the opening, rendering the opening unconstitutional. Whether Davis voluntarily opened the glove box is a question of fact that depends on the totality of the circumstances. See Dezso, 512 N.W.2d at 880. If “a reasonable person would have felt free to decline the officer[’s] requests or otherwise terminate the encounter,” compliance with the officer’s request is voluntary. Id. (alteration in original) (quoting Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 2387 (1991)).

Lieutenant Meagher lawfully approached Davis’s car to investigate the accident. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (noting that police may approach and talk to a driver sitting in an already stopped car). Lieutenant Meagher had a duty to question Davis and seek information pertinent to the investigation. See Minn. Stat. § 169.09, subd. 8 (2004) (requiring police to make a report of traffic accidents); cf. Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (noting that an officer has a duty to make reasonable investigation of vehicles parked along roadways to offer assistance). Lieutenant Meagher’s initial inquiries into Davis’s identity, his licensure, the ownership of the car, and proof of insurance are related to the accident investigation and were conducted so as to present no constitutional concerns.

But Lieutenant Meagher continued to express interest in the glove box after Davis told him that proof of insurance was not inside and that the glove box was locked. Lieutenant Meagher testified that he knew Davis did not want to open the glove box and that he thought Davis’s reluctance was suspicious. He also testified that he wanted Davis to open the glove box. The record shows that Lieutenant Meagher left the driver’s side of the car, abandoning his immediate access to Davis, and walked around to the passenger side to position himself in immediate reach of the glove box. Without any apparent invitation or constitutional authority, Lieutenant Meagher then opened Davis’s car door, entered the car by leaning inside, and, despite Davis’s reluctance, suggested for a third time that Davis open the glove box. Under the circumstances, the district court could find that based on Lieutenant Meagher’s physical conduct and repeated verbal requests, Lieutenant Meagher’s question, “Why don’t you try the key?” is an implied directive that Davis open the glove box.

We therefore find adequate support in the record for the district court’s factual conclusion that Lieutenant Meagher’s “suggestion to open the glove box was repeated, prolonged, and became coercive.” We do not suggest that an officer merely asking for insurance information or suggesting that requested papers might be in the glove box would support a finding of coercion. But Lieutenant Meagher’s continued, express interest in the glove box, his physical intrusion into the car, and his final implied directive that Davis open the glove box, together establish coercion. A reasonable person would feel compelled to obey Lieutenant Meagher’s specific instruction to open the glove box. We are careful to note that the district court did not find, nor do we suggest, that Lieutenant Meagher intentionally violated Davis’s right to privacy. Our analysis focuses instead on whether a reasonable person in Davis’s circumstance could have considered himself free to decline Lieutenant Meagher’s requests to open the glove box or to end the encounter. The district court did not err in determining that Davis involuntarily opened the glove box to reveal its contents.

The state argues that Lieutenant Meagher’s requests that Davis open the glove box did not constitute a search because his sole purpose was to retrieve proof of insurance. Lieutenant Meagher’s interest in the contents of the glove box might be relevant to our analysis if we were concerned with the scope of the encounter. See State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (holding that an intrusion during a traffic stop must be closely related to the justification for the stop unless it is supported by independent probable cause). The question here is not whether Lieutenant Meagher had a valid interest in viewing the insurance information, but whether he was authorized to direct Davis to open an enclosure in which Davis enjoyed an expectation of privacy. Under these circumstances, we agree with the district court’s determination that he was not.

The state urges us to apply the plain-view doctrine. Had the marijuana been present on the passenger seat in plain view when Lieutenant Meagher approached Davis’s car, Lieutenant Meagher’s observation of the marijuana would have provided probable cause and the subsequent search of the car would have been lawful under the automobile exception to the warrant requirement. See United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 2172 (1982) (holding that an officer may search a vehicle if the officer has probable cause to believe the search will produce evidence of a crime); State v. Search, 472 N.W.2d 850, 852 (Minn. 1991) (same). But the marijuana was not in plain view when Lieutenant Meagher approached the car. The marijuana came into plain view because Davis opened the glove box, and he opened the glove box because Lieutenant Meagher essentially directed him to do so. Because Davis did not open the glove box voluntarily, discovery of the marijuana and the subsequent search are unconstitutional.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.