This opinion will be unpublished and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

A05-1481

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mike Alan Pooley,

Appellant.

 

 

Filed October 3, 2006

Affirmed
Forsberg, Judge*

 

Blue Earth County District Court

File No. CR043048

 

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

 

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street P.O. Box 3129, Mankato, MN 56002 (for respondent)

 

John Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414(for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Michael Pooley appeals from his convictions of felon in possession of a firearm and attempted first-degree controlled substance crime, arguing that the district court erred by refusing to suppress evidence obtained during a warrantless search of his apartment and coat.  Because we conclude that appellant’s father had apparent authority to consent to the search and that the search of his coat was a valid search incident to arrest, we affirm.

FACTS

Mankato police officers received reports of possible narcotics activity at Mankato Iron and Metal.  The officers went to the business and spoke with its president and co-owner, Gregory Pooley, who told the officers that he had similar concerns.  Gregory Pooley informed the officers that he permitted his son, Michael Pooley, to live in an apartment in one of the business’s buildings and that, based on his observations, he believed that his son was involved in the manufacture of methamphetamine.  Gregory Pooley guided the officers around the business, permitting them to observe numerous items involved in the manufacture of methamphetamine. 

The officers inquired about Michael’s living arrangement.  Gregory Pooley explained that his son paid no rent for the apartment.  He further explained that he had previously used the apartment as an office, that he continued to store business documents in the former office, and that he had access to the area so that he could retrieve the documents.

After the officers informed Gregory Pooley that many of the items at the business appeared to be involved in the manufacture of methamphetamine, Gregory Pooley told officers that he wanted both the items and his son removed from the business and led officers to his son’s apartment.  Gregory Pooley entered first, and the officers followed.  Officers walked through the apartment to ascertain whether anyone was present and to ensure officer safety.  While walking through the apartment, officers saw the following items in the bedroom:  Pyrex dishes with a residue, a pipe, a piece of tinfoil with burn residue, and an open fanny pack that contained two small containers.  In the officers’ experience, these items were associated with methamphetamine use and manufacture.  While the officers were still in the apartment, appellant returned.

When appellant entered the apartment, one officer present noted that appellant’s coat pockets appeared to be bulging.  Appellant removed the coat; the officer again stated that the coat looked heavy because of the bulging pockets.  Officers requested that appellant sit, and he complied, placing his coat next to him on the floor.  An officer picked up the coat and felt the outside of the pockets; the right pocket felt full.  The officer then reached inside the pocket where he found a large quantity of matchbooks.  Under the matchbooks, the officer felt a hard, long object that felt like a knife.  He removed the object and discovered that it was a magazine for a semiautomatic handgun.  The officer asked appellant for the location of the rest of the gun, and appellant indicated that he had it in his waistband.  The officer retrieved the gun from appellant’s waistband and identified it as a semiautomatic handgun.  The officer then handcuffed him for officer safety.

While appellant accompanied them, the officers continued to search the apartment.  They opened a small suitcase and a backpack, which both contained items associated with methamphetamine manufacturing.  Officers arrested appellant, and the state charged him with first-degree controlled substance crime and felon in possession of a firearm.

Appellant filed a motion to suppress the items obtained during the search of his apartment, the statements he made after being handcuffed, and both the gun and the matchbooks discovered during the search of his person and coat.  After a contested omnibus hearing, the district court suppressed evidence found in the fanny pack, suitcase, and backpack and also suppressed the statements made to police.  The court, however, denied appellant’s motion to suppress the other evidence obtained during the search of the apartment—the matchbooks and the gun.  The case proceeded to trial where the jury found appellant guilty of felon in possession of a firearm and one count of first-degree controlled substance crime, and he was sentenced.  He now appeals from his convictions, asserting that the district court erred by refusing to suppress the matchbooks and the gun.

D E C I S I O N

The United States and Minnesota Constitutions protect the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Unless an exception applies, a warrantless search of a person’s home or person is per se unreasonable, and evidence obtained in the search must be suppressed. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).  The state has the burden of establishing that an exception applies.  Id.  On appeal from the district court’s denial of a motion to suppress evidence, we independently review the facts and determine as a matter of law whether the district court erred by refusing to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

I.

Consent to a warrantless search of a private residence is an exception to the general rule that a warrantless search is unreasonable.  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985).  The authority to consent may be actual or apparent.  State v. Licari, 659 N.W.2d 243, 250-54 (Minn. 2003).  The determination of whether the person giving consent had actual or apparent authority is a legal issue subject to de novo review.  See State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998).

A person has actual authority to consent to a search when the person has “common authority over or other sufficient relationship to the premises or effects sought to be inspected.”  Hanley, 363 N.W.2d at 738 (quotation omitted).  Common authority is not derived from a property interest, but instead relies on “mutual use of the property by persons generally having joint access or control.”  Id. at 739 (quotation omitted).  A finding of mutual use is therefore a necessary prerequisite to a valid consent to search.  State v. Buschkopf, 373 N.W.2d 756, 767 (Minn. 1985).  And mutual use is not established by the mere existence of a landlord-tenant relationship.  Licari, 659 N.W.2d at 251.

When actual authority does not truly exist, consent is nonetheless valid when “under an objective standard, an officer reasonably believes [a person] has authority over the premises and could give consent to enter.”  Thompson, 578 N.W.2d at 740.  But apparent authority requires that the facts known by the officer, if true, would establish actual authority.  Licari, 659 N.W.2d at 253.

It is undisputed that appellant did not consent to the search of his apartment and that the officers relied on his father’s consent to search the apartment.  Appellant’s father, Gregory Pooley, had apparent authority to consent to the search.  Gregory Pooley explained to officers that the apartment was formerly his office and that he retained access to the apartment because business files remained in the apartment.  When he made this statement to police, Gregory Pooley represented that he had mutual use of the apartment and that he had joint access to the area for reasons other than his arguable status as a landlord.  This representation is sufficient, under an objective standard, to justify the investigating officers’ reasonable belief that he had authority over the apartment.

Appellant argues that his father’s representation was inaccurate because the files were actually stored beneath the apartment rather than inside the apartment.  While this argument affects his father’s actual authority to consent to a search, it does not alter the analysis of his father’s apparent authority.  See Licari, 659 N.W.2d at 254 (stating that reasonable mistakes of fact do not undermine validity of search).  The officers did not learn that the files were not in the apartment until long after the search was completed.  At the time of the search, the officers had no reason to disbelieve Gregory Pooley’s representation.  If this representation had been accurate, it would support a conclusion that he had actual authority to consent.  Consequently, Gregory Pooley had apparent authority to consent to the search, and the district court did not err by refusing to suppress evidence obtained in the course the search. 

II.

            Appellant next challenges the district court’s refusal to suppress the matchbooks found in his coat and the gun found on his person.  A search incident to a lawful arrest is another exception to the general rule that a warrantless search is unreasonable.  United States v. Robinson, 414 U.S. 218, 235 (1973).  Under the search-incident-to-arrest doctrine, an officer may search a suspect when the officer has probable cause to arrest the suspect.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  Probable cause to arrest requires police to have a reasonable belief that a certain person has committed a crime.  State v. Wynne, 552 N.W.2d 218, 221-22 (Minn. 1996).  The test of probable cause to arrest is whether objective facts establish that, under the circumstances, a person of ordinary care and prudence would have an honest and strong suspicion that a crime has been committed.  Id. at 221.  The existence of probable cause is examined under the totality-of-the-circumstances test.  State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990). 

            When officers have probable cause to arrest, they may conduct a search incident to arrest even if the search occurs before the arrest.  G.M., 560 N.W.2d at 695.  This search may extend to small containers located on the person searched, and the search may be followed by a warrantless seizure of discovered contraband.  Id.  The objective of the search is to prevent the destruction of evidence and to remove any weapons that the suspect may use to resist arrest or flee.  Ture, 632 N.W.2d at 628. 

            Based on the officers’ observation of items associated with methamphetamine in the common areas of the business and their observation of similar items in the apartment, they had a reasonable belief that appellant had committed a controlled-substance crime.  The officers therefore had probable cause to arrest appellant.  Because they had probable cause to arrest, the officers could lawfully conduct a search incident to arrest to determine whether appellant had any weapons that would enable him to resist arrest or flee.  After seeing the bulge in the coat, officers could reasonably believe that the coat contained a knife or gun.  And once the officer felt the exterior of the pocket and identified a long, hard object resembling a knife, the officer could lawfully search the pocket to remove any possible weapon.  Similarly, the officers could lawfully search appellant’s person to remove any potential weapons.

            Appellant asserts that because he removed his coat, the officers could not search it under the search-incident-to-arrest doctrine.  The officers, however, could lawfully search the coat because it was next to him on the floor, and was within his reach and his immediate control.  See State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (stating that officers may conduct warrantless search of person’s body and area within person’s immediate control or reach).  Because the officers could conduct a warrantless search of both appellant’s person and his coat, the district court did not err by refusing to suppress the matchbooks and the gun.

            Affirmed.