This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-960

 

State of Minnesota,
Respondent,

vs.

Ivan Ray Vaughan,
Appellant.

 

Filed February 13, 2007

Affirmed

Peterson, Judge

 

Stearns County District Court

File No. KX-05-213

 

Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janelle Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 705 Courthouse Square, Administration Center Room 448, St. Cloud, MN  56303 (for respondent)

 

David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, MN  56303 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of a first-degree controlled-substance offense, appellant Ivan Ray Vaughan argues that the district court erred in not suppressing evidence seized as a result of a deputy sheriff’s warrantless entry into the home where Vaughan was present.  We affirm.

FACTS

            Vaughan was at the home of a friend, T.M., when Deputy Sheriff Jason Dahl drove by and noticed that the trailer attached to a vehicle parked in the home’s driveway extended into the roadway.  Dahl ran a license check on the vehicle and learned that Vaughan was the registered owner and that there was an outstanding warrant for his arrest. 

            Dahl approached the home and knocked on the door.  Dahl testified that he heard someone say, “Come in,” but he did not enter; instead, he knocked again.  T.M. answered the door, and Dahl told him that the trailer in the roadway was a hazard and needed to be moved.  T.M. told Dahl that he would have the owner move the trailer, and Dahl asked if Vaughan was in the house.  T.M. indicated that Vaughan was in the house and turned and walked into the house.  Dahl followed behind T.M.  Dahl testified that when he saw Vaughan, Vaughan had a knife, so Dahl pulled out his tazer. 

            T.M. testified that he told Dahl that he would move the trailer and he attempted to leave the house by walking past Dahl.  Dahl told T.M. to back up into the house.  T.M. testified that Dahl pulled out his tazer before entering the house, and T.M. was trying to get away.  T.M. testified that he did not consent to Dahl entering the house.   

            Dahl arrested Vaughan pursuant to the outstanding warrant, and during a search incident to the arrest, Dahl found approximately 24 grams of methamphetamine in Vaughan’s pockets.  After obtaining a search warrant to search Vaughan’s pickup truck, Dahl and another deputy found numerous empty baggies; a scale; miscellaneous drug paraphernalia; a plastic bag that contained a green, leafy substance; and more methamphetamine. 

            At a contested omnibus hearing, Vaughan challenged the legality of Dahl’s entry into T.M.’s home and moved to suppress the evidence obtained during the searches of Vaughan and his pickup truck.  The district court found Dahl’s testimony credible and denied the motion to suppress.  The case was submitted to the district court under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the district court found Vaughan guilty of a first-degree controlled-substance crime.  This appeal followed.

D E C I S I O N

“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).  We accept the district court’s underlying factual determinations bearing on a motion to suppress on Fourth Amendment grounds unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

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.”  Short-term social guests have a reasonable expectation of privacy in their host’s home under both the Fourth Amendment and the Minnesota Constitution, entitling guests to claim the protection of the Fourth Amendment and the Minnesota Constitution.  In re Welfare of B.R.K., 658 N.W.2d 565, 575-76, 578 (Minn. 2003). 

            Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions.  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985).  “[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”  Id.    

Vaughan argues that T.M. did not consent to Dahl entering his home.  Consent does not have to be verbal; it may be implied by conduct.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  Whether T.M. consented to Dahl entering the house “is judged by an ‘objective reasonableness’ standard: ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?’”  United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir. 1992) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991)). 

            The district court concluded, “while the version of events given by Deputy Dahl and [T.M.] vary greatly, this court finds Deputy Dahl’s version of events is credible and will rely on that version in making this decision.”  This court defers to the district court’s credibility determinations.  State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003) (stating that weight and believability of witness testimony is issue for district court, and appellate court defers to district court’s credibility determinations).  Because the district court credited Dahl’s testimony, we determine whether, under Dahl’s version of the events, it was reasonable for Dahl to believe that T.M. consented to Dahl’s entry.  We conclude that it was reasonable.

            After Dahl knocked on the door, he heard someone yell, “Come in.”  Dahl knew from his previous contacts with T.M. that T.M. knew that he could deny Dahl entry and that T.M. had denied Dahl entry several times in the past.  Dahl was right behind T.M. as T.M. walked back into the house, and Dahl believed that T.M. had to have known that he was being followed, but he still did not tell Dahl to stay out.  Under these circumstances, it was reasonable for Dahl to interpret T.M.’s conduct as consent to entry.

            “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”  Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973).  The government bears the burden of showing that consent was given freely.  Othoudt, 482 N.W.2d at 222.  “[Because] the issue of consent is usually a factual one, a district court’s finding [regarding voluntariness] must be accepted on appeal unless it is clearly erroneous.”  United States v. Allison, 619 F.2d 1254, 1262 (8th Cir. 1980).  The district court found that

[T.M.] voluntarily consented.  He testified that Deputy Dahl did not frighten him with the tazer until after the deputy was in the house and had made visual contact with [Vaughan].  As such, the presence of the tazer did not make [T.M.] feel as though he could not refuse entry to the deputy.  Finally, [T.M.] and Deputy Dahl both testified that [T.M.] is no stranger to denying officers entry to his house.  In fact, the testimony shows that [T.M.], prior to this occasion, has always emphatically told officers to leave the home. 

 

We find nothing in the record that demonstrates that the district court’s finding that T.M. voluntarily consented to Dahl’s entry is clearly erroneous.

            Affirmed.