This opinion will be unpublished and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

A06-49

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Leon Chaney, Jr.,

Appellant.

 

Filed ­­­March 20, 2007

Affirmed

Dietzen, Judge

 

Dakota County District Court

File No. K1-04-1521

 

Lori 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, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

 

Timothy T. Mulrooney, Special Assistant State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402-4503 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction of a second-degree controlled-substance crime following a Lothenbach proceeding, arguing that the district court erred by denying his motion to suppress evidence found after a warrantless search of his backpack.  Because probable cause existed for his arrest, and the search was conducted incident to his arrest, we affirm. 

FACTS

            In May 2004, Officer Paul Oelrich of the Burnsville Police Department investigated a complaint of door-to-door solicitation without a permit at an apartment complex in Burnsville.  While at the apartment complex, Oelrich observed what he believed was an illegal drug transaction. 

            As Officer Oelrich passed one of the apartment units, he looked into its window from a sidewalk 15 feet away and observed appellant Jeffrey Leon Chaney, Jr. and a woman sitting at a table, with two other men standing near them.  The individuals at the table were holding small plastic bags, placing items in the bags, and comparing the bags.  He stated that the individuals were “holding [the bags] up, looking at them, and placing small items inside of them, and then looking at them again and passing them back and forth.”  The bags were three to five inches square.  The officer could not see what was being placed into the bags or identify its color, but he testified that it was the size of a quarter.  Based on his training and experience, Oelrich believed that they were packaging drugs.  Oelrich then left the sidewalk area and approached the window to verify what he had seen. 

            Officer Oelrich moved away from the window and called for back-up.  Before the other officers arrived, appellant left the apartment.  Oelrich then confronted appellant and asked him what he was doing inside the apartment.  Appellant stated that he had been standing by the doorway the entire time and denied any drug activity or being seated at the table, which increased Oelrich’s suspicion that the activities were illegal.  Oelrich asked to search appellant’s backpack; appellant refused, but Oelrich searched it.  Oelrich found marijuana in the backpack and placed appellant under arrest.  The marijuana was packaged in small bags, and the small bags were packaged in a larger bag.  Appellant then admitted selling marijuana to the woman at the table.  When the backpack was inventoried, two plastic bags were found that had been concealed in a deodorant container.  One bag contained a white powdery substance, which later tested as cocaine.  The other bag contained several individually packaged hard white rocks, which also later tested as cocaine.  The backpack also contained a roll of plastic bags and a scale. 

            Appellant was charged with a second-degree controlled-substance crime.  Before trial, appellant moved to suppress the drugs found in his backpack.  After a hearing, the district court issued findings of fact, conclusions of law, and an order denying appellant’s motion.  The district court concluded that Oelrich’s conduct in looking through the apartment window did not constitute an illegal search, that appellant’s arrest was supported by probable cause, and that the search of the backpack was a lawful search incident to arrest. 

            Following a Lothenbach proceeding, appellant was convicted.  This appeal followed. 

D E C I S I O N

Appellant argues that his arrest was not supported by probable cause and that the search of his backpack was not “incident to the arrest,” and, therefore, the district court erred in denying his motion to suppress.  “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).  Likewise, when determining whether probable cause existed for a warrantless arrest, we “independently review[] the facts to determine the reasonableness of the conduct of police.”  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).

            The United States and Minnesota Constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Searches without a warrant are unreasonable, absent “certain narrow exemptions.”  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000).  One such exemption is that an officer may search “a person’s body and the area within his or her immediate control” if the search is “incident to a lawful arrest.”  Id. (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)).  This allows officers to remove any weapons and “prevents the arrestee from tampering with or destroying evidence or contraband.”  Id. 

A search incident to arrest may precede the arrest if “(1) the arrest and the search are substantially contemporaneous, and (2) probable cause to arrest existed before the search.”  State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992).  Probable cause is assessed by considering the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 2328 (1983); State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998).  Probable cause exists where the police “reasonably could have believed that a crime has been committed by the person to be arrested.”  Riley, 568 N.W.2d at 523; see also State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (noting that probable cause exists if the objective facts indicate that “a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed”).  The fruits of the search may not be considered when determining if probable cause existed.  Cornell, 491 N.W.2d at 670; see also Smith v. Ohio, 494 U.S. 541, 542-44, 110 S. Ct. 1288, 1290 (1990) (rejecting the argument that a search is constitutional because its fruits justified the arrest).

Appellant argues that Officer Oelrich did not observe any drugs or see anything that would objectively lead to the conclusion that drugs were being packaged.  Appellant suggests that innocent explanations exist for the conduct observed by Oelrich.  But there is no requirement that an officer actually observe drugs or rule out all possible innocent explanations before making an arrest for such an offense.  See e.g. State v. Hawkins, 622 N.W.2d 576, 581 (Minn. App. 2001) (concluding that probable cause existed where individual waved and whistled at cars and engaged in hand-to-hand exchanges).  As noted in Hawkins, “[t]he fact that there might have been an innocent explanation for Hawkins’s conduct does not demonstrate that the officers could not reasonably believe that Hawkins had committed a crime.”  622 N.W.2d at 580. 

Appellant attempts to distinguish Hawkins on the basis that “in Hawkins, the officer had substantial other information giving rise to probable cause.”  Unlike Hawkins,  this incident did not occur at an odd hour or at a public intersection, appellant did not behave in an erratic manner, and there was no rapid-fire interaction with multiple people at the apartment in question.  But these are not elements required for probable cause; they are simply the circumstances of Hawkins.  Here, Oelrich observed appellant and others placing small items in plastic baggies, looking at them, and passing them back and forth to observe after they were packaged.  In his experience and training, that behavior was consistent with packaging drugs. 

Along with the packaging activities, Oelrich’s conversation with appellant after he left the apartment also supports probable cause for arrest.  Appellant denied being at the table, but Oelrich observed appellant at the table handling the bags.  Appellant’s untrue statements support an inference that the activities at the table were illegal.  See In re Welfare of G.M., 560 N.W.2d 687, 695-96 (Minn. 1997) (finding probable cause where it was reasonable to infer that suspect was lying about knowledge of contents of bag that was attached to his belt); State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002) (finding that “evasive” answers when questioned were one factor supporting probable cause for arrest).  Since Oelrich had observed appellant at the table and knew his statement to be false, this reasonably increased his belief that a crime had occurred, further supporting probable cause.  These facts, taken together, are sufficient to permit a prudent person to reasonably believe that appellant had engaged in a controlled-substance crime.

On this record, the district court properly denied appellant’s motion to suppress the evidence obtained as a result of the search.

Affirmed.