A06-1408

State of Minnesota,

Appellant,

vs.

Robert Stephen Huber,

Respondent.

Filed January 9, 2007

Affirmed

Worke, Judge

Dakota County District Court

File No. K5-05-3251

Lori R. Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101; and

Anthony E. Ho, McDonough, Wagner & Ho, 14501 Granada Drive, Suite 200, Apple Valley, MN 55124 (for respondent)

Considered and decided by Lansing, 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

WORKE, Judge

On appeal from a pretrial order suppressing methamphetamine found during a search of respondent’s vehicle, the state argues that the district court clearly erred in ruling that an officer could not search behind a speaker in the vehicle. The state contends that the search was (1) permissible under the automobile exception, (2) a valid search incident to arrest, and (3) a valid inventory search. We affirm.

D E C I S I O N

When the state appeals pretrial suppression orders, it “must ‘clearly and unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. 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. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987).

Here, an officer stopped respondent Robert Stephen Huber for failing to signal a turn, because a taillight on his vehicle was emitting a white light, and because a records check indicated that the vehicle’s registered owner had an outstanding warrant for his arrest. The officer lawfully arrested respondent and placed him in the back of his squad car. While searching respondent’s vehicle, the officer noticed that the speaker on the driver-side door was “ajar.” Based on the officer’s training and experience he believed that contraband was hidden behind the speaker. The officer pulled the speaker back about two inches and saw a case with a glass pipe sticking out of it. The officer opened the case and found baggies containing methamphetamine and cocaine. Respondent challenged the scope of the search, and the district court suppressed all of the evidence found in respondent’s car. There is no other evidence of a controlled substance crime; without the suppressed evidence the state cannot establish guilt of a controlled substance crime beyond a reasonable doubt. Because the district court’s order will significantly reduce the likelihood of a successful prosecution, the state has met its critical-impact burden.

This court must now determine whether the district court’s suppression order constituted error. See Scott, 584 N.W.2d at 416. “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] the evidence.” State v. Harris,590 N.W.2d 90, 98 (Minn. 1999). 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). This court applies an “objective standard” in determining the lawfulness of a search by considering the totality of the circumstances, “and if the objective standard is met, [this court] will not suppress evidence . . . ‘even if the officer . . . conducting the search based his or her action on the wrong ground or had an improper motive.’” State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998) (quoting State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992)).

The district court ruled that the warrantless search behind the speaker was impermissible. The state argues that the search was permissible under the automobile exception, was a valid search incident to arrest, and was a valid inventory search. The United States and Minnesota Constitutions protect people from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is presumptively unreasonable and therefore unconstitutional. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). But certain exceptions permit warrantless searches. Geer v. State,406 N.W.2d 34, 35 (Minn. App. 1987), review denied (Minn. July 15, 1987). 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).

Automobile Exception

The state argues that the officer had probable cause to search behind the speaker based on the automobile exception to the search-warrant requirement. The police may conduct a warrantless search of an automobile when they have probable cause to believe that the vehicle contains evidence of a crime or contraband. State v. Search, 472 N.W.2d 850, 852 (Minn. 1991). 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). 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).

The state contends that the officer had probable cause to believe that respondent’s vehicle contained contraband based on his training and experience that people hide contraband behind speakers. But the cases that the state cites for support include facts supporting probable cause other than the officer’s training and experience. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996) (holding that probable cause existed based in part on officers observing one respondent put drugs in the trunk of a car and observing the other respondent act in ways suggesting that he had drugs in the trunk of a car); United States v. Ross, 456 U.S. 798, 798, 102 S. Ct. 2157, 2159 (1982) (holding that probable cause existed based on information from an informant that narcotics were being sold out of the trunk of a car); State v. Munson, 594 N.W.2d 128, 136-37 (Minn. 1999) (holding that probable cause existed because an informant described a vehicle that contained a large amount of cocaine hidden inside or underneath the vehicle); State v. Pederson-Maxwell, 619 N.W.2d 777, 779 (Minn. App. 2000) (holding that probable cause existed because an informant purchased marijuana out of the vehicle). Here, the officer stopped respondent after respondent failed to signal a turn, the officer observed the vehicle’s taillight emitting a white light, and a warrant was out for respondent’s arrest. None of these reasons provide the officer with probable cause to believe that the vehicle contained evidence of a crime or contraband.

But the state also relies on Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996), to support its argument that loose parts on a vehicle provide probable cause to conduct a search. In Ornelas, an officer noticed an older-model Oldsmobile—popular with drug couriers because it is easy to hide things in them—with California license plates in a motel parking lot. Ornelas, 517 U.S. at 692, 116 S. Ct. at 1659. Two men who arrived in the vehicle registered at the motel at 4:00 a.m. without reservations; the men’s names were run and appeared in a database of known and suspected drug traffickers. Id. In searching the vehicle, the officer noticed that a panel above an armrest felt loose and suspected that it had been removed to hide contraband. Id.at 693, 116 S. Ct. at 1660. The officer dismantled the panel and discovered two kilograms of cocaine. Id. The Seventh Circuit held that probable cause existed to believe that the panel had been pried loose in order to conceal drugs given what the officer knew about the situation before he saw the loose panel. United States v. Ornelas, 96 F.3d 1450 (7th Cir. 1996). But Ornelas, and other cases that the state cites from outside this jurisdiction, include facts other than the officer’s training and experience to support probable cause that the vehicles contained contraband or evidence of a crime. Here, the facts do not support an independent basis for probable cause to search behind the speaker.

Search Incident to Arrest

The state next argues that the search behind the speaker was a search incident to arrest . The Supreme Court held in New York v. Belton,453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981), “that when a [police officer] has made a lawful custodial arrest of the occupant of an automobile , he [or she] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile .” The Belton court’s holding also authorized the search of containers found in the passenger compartment. Belton,453 U.S. at 460, 101 S. Ct. at 2864. The Court defined “containers” as “any object capable of holding another object. . . . [Including] closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” Id. at 460-61 n.4, 101 S. Ct. 2864 n.4. The rationale for this search-incident-to-arrest exception is to ensure officer safety by removing any weapons and to prevent the concealment or destruction of evidence. State v. Varnado,582 N.W.2d 886, 892 (Minn. 1998); see also Chimel v. California,395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969). “A search incident to arrest is valid by itself and does not require any additional justification.” Varnado, 582 N.W.2d at 892.

The state contends that because the officer was permitted to search the passenger compartment of the vehicle and the area within the driver’s reach, he was permitted to search behind the speaker that was only six inches away from respondent. This expansive reading of Belton is without merit. Belton intended to create a bright-line rule that the passenger compartment of the automobile could be searched incident to a lawful arrest. We do not need to determine that a loose speaker in the interior door is part of the passenger compartment, because doing so would expand the reading of Belton and we would no longer have a bright-line rule. Thus, in applying the Belton rule, the loose speaker was not part of the passenger compartment and the search was invalid.

Inventory Search

The state also argues that the search was a valid inventory search. An inventory search of an impounded vehicle is an exception to the warrant requirement. City of St. Paul v. Myles,298 Minn. 298, 304-05, 218 N.W.2d 697, 701 (1974). Inventory searches do not require probable cause. State v. Holmes,569 N.W.2d 181, 186 (Minn. 1997). Inventories conducted prior to a car’s impoundment have been found to be justified as necessary to protect the owner’s property, to insure against claims of loss, and to guard the police from potential danger. Colorado v. Bertine,479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987).

In order for an inventory search to be lawful, police must “(1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation.” State v. Ture, 632 N.W.2d 621, 628 (Minn. 2001). Here, the police department’s policy provides that vehicles may be impounded if the operator has been lawfully arrested. The policy also provides that an impounded vehicle is subject to an inventory search to ensure that all items in the vehicle are documented and returned to the owner. An officer is permitted to search the passenger compartment; the glove compartment; the trunk; and any containers, such as boxes or suitcases, unless locked, found in the vehicle. The policy does not permit an officer to search behind a speaker that is slightly detached. And the cases that the state relies on do not support its argument. See Bertine, 479 U.S. at 367, 107 S. Ct. at 738 (searching a closed backpack); South Dakota v. Opperman, 428 U.S. 364, 366, 96 S. Ct. 3092, 3095 (1976) (searching an unlocked glove compartment); State v. Ailport, 413 N.W.2d 140, 143 (Minn. App. 1987) (searching an unlocked suitcas e found in the trunk), review denied (Minn. Nov. 18, 1987); State v. Marshall, 411 N.W.2d 276, 278 (Minn. App. 1987) (finding baggie containing a white powdery substance stuffed in the mag slots of the rear wheel), review denied (Minn. Oct. 26, 1987). These cases include searches of places that are permitted in the police department’s policy and were conducted to obtain an inventory. It is not the same case here because the search behind a loose speaker is not permitted in the police department’s policy and a proper inventory search is conducted to protect property, insure against loss, and to protect a police officer from danger. It is not reasonable to believe that an officer would expect to find the same type of personal belongings behind a loose speaker that would be found in a glove compartment, trunk, box or suitcase. Further, although Marshallincludes a search of an area outside of the vehicle, this court indicated that the driver attempted to hide the baggie while struggling with an officer during an arrest. Marshall, 411 N.W.2d at 278. This court also noted that the driver had less of an expectation of privacy with respect to the area searched. Id.at 279 n.1. The facts in Marshallare readily distinguishable from those presented here. Thus, the search behind the speaker was not permitted under the inventory-search exception.

Affirmed.