This opinion will be unpublished and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

A06-1125

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Orville Steinke,

Appellant.

 

Filed August 7, 2007

Affirmed; motion granted

Halbrooks, Judge

 

Waseca County District Court

File No. KX-05-307

 

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

 

Paul Dressler, Waseca County Attorney, Patrick Moen, Assistant County Attorney, 307 North State Street, Waseca, MN 56093 (for respondent)

 

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of felony cruelty to animals, arguing that the district court erred by denying his motion to suppress evidence of a crossbow and arrows that were seized during a police entry of his home to execute an arrest warrant.  Because the warrantless search and seizure was justified under the plain-view exception, we affirm.

FACTS

            In April 2005, Waseca County Sheriff’s Deputies responded to a report that a dog had been shot with an arrow.  When the deputies arrived, they found a black lab that had an arrow protruding through its midsection.  The dog was wearing a collar, but it had no identification. 

The deputies began to investigate the incident and to try to identify the dog’s owner.  As a part of their investigation, the deputies spoke with appellant Steven Orville Steinke, who lived next door to the man who reported the injured dog.  Appellant stated that he did not own a dog, did not know who owned a dog, and had not shot a dog.  As the deputies were speaking with appellant, they observed a foam target in his yard, which contained several small holes that could have been made by arrows.  The deputies also observed dog prints near the entry to appellant’s home.

            The injured dog was taken to a veterinarian, who attempted to remove the arrow from the dog.  The dog died during the procedure.  The deputies later retrieved the arrow from the veterinarian.

            About a week after the dog was shot, three deputies were dispatched to execute an arrest warrant for appellant in another matter.  One of the deputies, “Deputy K.,” had participated in the earlier investigation of the dog shooting.  When the deputies arrived at appellant’s house, they surrounded the house and then knocked on the door.  Deputy K. was posted in the back of the house when appellant came to the door.  Appellant asked to retrieve some personal belongings before being taken into custody.  In order to permit him to do that, the deputies explained that they needed to escort appellant into the house, and he acquiesced to their entry.  Two deputies immediately followed appellant into the home.  Deputy K. stayed outside until he was sure that the exterior of the house was secure; he entered the house shortly thereafter.

As Deputy K. moved through the house to join the others, he looked into the kitchen and saw a crossbow and some arrows that appeared similar to the arrow that had been recovered from the dog.  These items were not concealed, and Deputy K. did not move anything before seeing them.  Although the deputies had no warrant to seize any items from the house, Deputy K. photographed and seized the crossbow and arrows.  Appellant did not consent to the seizure of these items.

            Appellant was later charged with cruelty to animals under Minn. Stat. § 343.21, subds. 7, 9(d) (2004).  Before trial, appellant moved to suppress the evidence of the crossbow and arrows, arguing that they had been seized during a warrantless search to which no exception applied.  Following a contested omnibus hearing, the district court concluded that the plain-view exception applied, and it denied suppression.  Appellant then waived his right to a jury trial but did not stipulate to any facts.  The district court conducted a bench trial and found appellant guilty of cruelty to animals.  This appeal follows.

D E C I S I O N

I.

 

            As an initial matter, the state argues that appellant failed to properly preserve his appeal of the pretrial order under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Under Minnesota law at the time that Lothenbach was decided, a defendant wishing to preserve the right to appeal a pretrial ruling was required to plead not guilty and proceed with a jury trial, even if no material facts were in dispute.  State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn. 1999) (discussing Lothenbach).  In Lothenbach,the supreme court considered challenges to pretrial rulings despite the entry of a guilty plea.  Id.  It recognized that a defendant could not plead guilty and then later attempt to appeal a pretrial ruling.  Id.  To respond to this inefficient use of judicial resources, the court set forth a procedure that preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.  Id.  The procedure calls “for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution’s case.”  Lothenbach, 296 N.W.2d at 857. 

Here, the state argues that appellant did not properly preserve his right to appeal because he did not follow the Lothenbach procedure.  But nothing in the language of Lothenbach, or any other case, indicates that a defendant is required to follow the Lothenbach procedure in order to preserve his or her right to appeal pretrial issues.  On the contrary, this court has reviewed pretrial orders even though the parties did not follow Lothenbach.  See, e.g., State v. Anderson, 720 N.W.2d 854, 861 (Minn. App. 2006) (reviewing a pretrial order denying a motion to suppress evidence and citing State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) for the standard of review).

A defendant may appeal a district court order after a final judgment has been entered against the defendant.  Minn. R. Crim. P. 28.02, subd. 2.  Appellant waived his right to a jury trial.  But nothing in the record indicates that he wished to plead guilty like the defendant in Lothenbach, and he did not stipulate to the facts of the case.  By filing his appeal of the pretrial order after the final judgment, appellant properly preserved his right to appeal the pretrial order. 

II.

Appellant argues that the district court erred in denying his motion to suppress the crossbow and arrows.  “When reviewing pretrial orders on motions to suppress evidence, [appellate courts] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  Harris, 590 N.W.2d at 98.  Appellate courts accept a district court’s underlying factual determinations bearing on a motion to suppress unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Both the federal and state constitutions guarantee individuals the right to be secure against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Therefore, warrantless searches and seizures are presumptively unreasonable, subject to a few exceptions.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).  If law enforcement conducts a warrantless search and seizure and no exception applies, the fruits of that search must be suppressed.  Id. at 222. 

The district court concluded that “the seizure of the bow and arrows that occurred here comes within the ‘plain-view’ exception.”  The plain-view exception “permits a police officer ‘to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.’”  State v. Griffin, 336 N.W.2d 519, 522 (Minn. 1983) (quoting Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S. Ct. 812, 816 (1982)). 

“The ‘plain view doctrine’ is not as broad a rule as some people think and must not be applied carelessly.”  Griffin, 336 N.W.2d at 522.  Minnesota courts apply a three-prong test to determine if it applies.  See, e.g., State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995).  Under the test, the police may, without a warrant, seize an object they believe is the “fruit or instrumentality of a crime,” provided:  (1) the police are lawfully and legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent.  Id.; State v. Zimmer, 642 N.W.2d 753, 755-56 (Minn. App. 2002).

Appellant does not challenge the deputy’s lawful access to the crossbow and arrows.  Instead, he focuses on the first and third prongs, arguing that (a) the deputy was not lawfully in the position from which he viewed the crossbow and arrows and (b) the incriminating nature of the crossbow and arrows was not immediately apparent.

A.        Was the deputy lawfully in a position to view the evidence?

Appellant argues that Deputy K. was not lawfully in a position to view the crossbow and arrows.  Initially, we note that appellant did not explicitly raise this argument at the district court.  Appellate courts will not decide issues that were not raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Nevertheless, appellant’s argument is likely reviewable.  The Minnesota Supreme Court recently held that even though an argument is not directly considered in the district court, appellate courts may consider the argument if it is a refined version of a different argument and the record is sufficient to allow review of the refined argument.  Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 522-23 (Minn. 2007). 

Although appellant’s argument at the district court focused on the incriminating-nature prong of the plain-view exception, his overall argument is that the plain-view exception does not apply here.  Thus, appellant’s current challenge to the legality of the deputy’s presence in the house, which is an additional element of the plain-view-exception test, is merely a refinement of appellant’s overall challenge to the applicability of the plain-view exception, and it should not be barred from consideration.

In Chrisman, the Supreme Court held that an arresting officer has authority “to monitor the movements of an arrested person, as [the officer’s] judgment dictates, following the arrest.”  455 U.S. at 7, 102 S. Ct. at 817.  Appellant cites Chrisman and concedes that arresting officers generally have authority to “make a warrantless entry into the house to monitor the arrestee’s movements.”  But appellant argues that the authority granted in Chrisman no longer justified Deputy K.’s entry without a warrant because “[a]t the point [Deputy K.] entered appellant’s home, his presence was not needed to ensure officer safety or prevent escape.” 

But contrary to appellant’s contention, an officer’s supervisory authority does not depend on the degree of potential danger, the likelihood of escape, or the nature of the offense.  Id. at 6-7, 102 S. Ct. at 816-17.  Rather, once a defendant is placed under lawful arrest, officers are authorized to accompany the defendant into his residence.  Id.  And the officers have “a right to remain literally at [the arrestee’s] elbow at all times; nothing in the Fourth Amendment is to the contrary.”  Id. at 6, 102 S. Ct. at 816.

Appellant further argues that Deputy K.’s delay made his entry unreasonable.  Essentially, appellant is asking this court to conclude that the supervisory authority granted in Chrisman applies only to the officers who initially make the arrest and not to those who enter to assist a short time later.  Appellant cites only Chrisman to support his argument.  But Chrisman involved a single arresting officer; it did not involve delayed entry by additional officers.  Id.  Further, the Supreme Court indicated that an arresting officer’s “right to custodial control did not evaporate with his choice to hesitate briefly in the doorway rather than at some other vantage point inside the room.”  Id. at 8-9, 102 S. Ct. at 818.  Thus, Chrisman suggests that a delayed entry does not eliminate supervisory authority. 

Some Minnesota cases have followed Chrisman and upheld entry by multiple officers under its authority.  See, e.g., Griffin, 336 N.W.2d at 521, 524 (upholding a plain-view exception when multiple arresting officers entered arrestee’s room to retrieve shoes and a jacket).  But those cases did not involve a delayed entry by additional officers. 

Other jurisdictions have also dealt with somewhat similar cases.  For example, in United States v. DeBuse, 289 F.3d 1072 (8th Cir. 2002), the Eighth Circuit held that where an arrestee chooses to reenter his house for his own convenience, multiple officers are “legally entitled to accompany [the arrestee] as he reentered his home” and that they are “legally in the position to see” any evidence that may be present.  Id. at 1074-75.  As another example, the Wisconsin Court of Appeals indicated that after an arrestee’s request to finish dressing, it was reasonable for an officer to accompany the arrestee to ensure the officer’s own safety “and that of others on the scene.”  State v. Amrine, 460 N.W.2d 826, 829 (Wis. App. 1990).

Here, appellant asked to get his personal belongings from inside the house.  Deputy K. stated that he and the other deputies entered the house because appellant “was basically under arrest and couldn’t leave our sight, for risk of fleeing or something like that, or injury to the other deputies, so we had to keep him in visual contact.”  Although Deputy K. did delay slightly before entering, he stated that he entered in order to supervise appellant during his arrest.  Therefore, we conclude that the deputy had authority to enter the house as an arresting officer, and the district court did not err in determining that he was lawfully in a position to view the crossbow and arrows.

In addition to the plain-view exception, the state argues that the seizure of the crossbow and arrows was also justified because appellant consented to the officers’ entry into the home.  Consent is another exception to the warrant requirement.  Othoudt, 482 N.W.2d at 221-22.  In State v. Olson, 482 N.W.2d 212 (Minn. 1992), an arrestee “was given the choice of going to the station as he was or of going back into the house and getting shoes, socks and a shirt and was expressly told that if he went into the house they would have to accompany him.”  Id. at 213.  The arrestee consented, and the officers saw drugs and other incriminating evidence inside the house.  Id.  The supreme court held that, under the circumstances, the arrestee had given the officers consent to enter the house, and the officers could rely on what they saw to obtain a search warrant.  Id. at 214. 

Appellant gave similar consent.  But unlike the officers in Olson, the deputies here did not obtain a search warrant.  Therefore, the validity of the search and seizure, to which appellant did not consent, still depends on application of the plain-view exception.

B.        Did the deputy have probable cause to believe that the evidence was incriminating in nature?

 

Appellant argues that Deputy K. lacked probable cause to believe that the crossbow and arrows were incriminating in nature.  In deciding whether the plain-view exception justifies a warrantless seizure, appellate courts must determine whether the police had sufficient probable cause to believe that evidence seized was of an incriminating nature.  Zanter, 535 N.W.2d at 631.  Such “[p]robable cause exists where the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of crime.”  State v. DeWald, 463 N.W.2d 741, 747 (Minn. 1990) (quotation omitted) (alteration in original).  To determine whether the incriminating nature of the evidence is immediately apparent, “the police may consider such things as any background information they have which casts light on the nature of the property and whether the items are unusual in number or are strangely stored or located.”  Id. at 747-48 (quotation omitted) (holding that the plain-view exception applies when a police officer, while lawfully executing a search warrant, inadvertently sees items connected to another crime whose incriminating nature is immediately apparent).

Appellant argues that the deputies did not have sufficient reason to believe that the crossbow and arrows were evidence of a crime because (1) the deputies had not identified the dog’s owner, (2) the deputies did not know what type of weapon had fired the arrow, and (3) the arrows found in appellant’s kitchen had two different tip styles.  But, as the district court found, the injured dog was discovered very close to appellant’s house, appellant’s arrows were similar in appearance to the arrow removed from the dog, appellant had a foam archery target in his backyard, and the deputies observed dog prints near the entrance to appellant’s house.  The record supports these findings.  Also, Deputy K. conducted the investigation regarding the injured dog, and he was aware of all of the pertinent background information at the time he saw the crossbow and arrows.  Therefore, we conclude that the district court did not err in determining that the deputy had probable cause to believe the crossbow and arrows were of an incriminating nature.

III.

The state moves to strike portions of appellant’s pro se brief, arguing that they are not part of the record on appeal.  “The record on appeal shall consist of the papers filed in the [district] court, the offered exhibits, and the transcript of the proceedings, if any.”  Minn. R. Crim. P. 28.02, subd. 8.  The court of appeals “will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

First, the state asks this court to strike the words “of the main” from paragraph one of appellant’s pro se brief, which discusses the suppliers of the arrows in question.  Although appellant indicated where he purchased the arrows and that other stores carried them, the record is silent regarding the main suppliers of these arrows.  We therefore grant the state’s motion to strike this language from appellant’s pro se brief. 

Second, the state asks this court to strike paragraph three, which relates to stray dogs in appellant’s neighborhood.  Appellant gave some testimony indicating that there were dogs around the neighborhood, but he also stated that there were no stray dogs there between April 10 and April 12, 2005.  Therefore, the record does not support paragraph three, and we grant the state’s motion to strike it from appellant’s pro se brief.

Finally, the state asks this court to strike the sentence that states, “[o]ne officer didn’t know [Deputy K.] was in there until he came in on his own . . . .”  Besides Deputy K., no other officers testified in this matter.  Thus, the record does not contain evidence regarding the other deputies’ knowledge.  As a result, we grant the state’s motion to strike this sentence from appellant’s pro se brief.

            Affirmed; motion granted.