This opinion will be unpublished and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

A06-1410

 

State of Minnesota,
Respondent,

vs.

Christian Fernando Rangel,
Appellant.

 

Filed August 14, 2007

Affirmed

Stoneburner, Judge

Dissenting, Wright, Judge

 

Ramsey County District Court

File No. K7051035

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Erin Sindberg Porter, Certified Student Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101; and

 

Terrence P. Duggins, Duggins Law Firm, Suite 510, Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of sale of controlled substance in the first degree, arguing that the district court erred in denying his pre-trial motion to suppress the evidence against him.  We affirm.

FACTS

            In March 2005, St. Paul police officer Jennifer Corcoran, aided by officer Heather Weyker Sanders and officer Jeffrey Lewis, were engaged in picking up three Hispanic males suspected of involvement in a 2003 drive-by shooting.  The officers had “pick-up orders” for each of the individuals.  A “pick-up order” is an order to apprehend and hold a person based on an officer’s belief that there is probable cause that the person has committed a crime.  The orders involved in this case were marked “caution” because the subjects were suspected of involvement in a shooting and association with members of the “Surenos 13” gang.

            The officers first picked up Yeison Orbe, who agreed to lead them to the other two wanted individuals, Carlos Linares and Mario Soberanes.  Orbe was placed in the back of a squad car and the officers proceeded to Linares’s address.  Linares was apprehended as he tried to escape.

            The pick-up order address for Soberanes was incorrect.  Orbe directed Corcoran to an apartment building on Cook Street where Soberanes had been seen about four days earlier and pointed to the windows of the apartment where he had seen Soberanes.  Orbe told Corcoran that Soberanes always carried a .22 caliber gun in his waistband.

            As Corcoran pulled up to the apartment building, she saw a Hispanic man, later identified as appellant Christian Rangel, sitting in a maroon SUV parked on the street in front of the apartment building.  Orbe slid down in the back seat and told Corcoran to keep going.  Orbe appeared to be frightened.  Corcoran asked him three times if the man in the SUV was Soberanes.  Orbe finally said, “No, it’s not Mario.”  Orbe said he did not know who the person was.

            Based on Orbe’s reaction to seeing the person in the SUV, and the proximity to the apartment where Soberanes had been seen, Corcoran, despite Orbe’s information to the contrary, suspected that the man in the SUV was Soberanes.  She parked the squad car, approached the SUV with her gun drawn, and immediately ordered Rangel out of the vehicle.  For safety, Corcoran did not want anyone standing in front of the apartment windows, so Corcoran had Weyker place Rangel in a squad car while she and Lewis went to the door of the apartment Orbe had pointed out, #102, and knocked.  There was no answer so Corcoran and Lewis returned to the front of the apartment building where Weyker and Rangel met them.  Rangel identified himself as Christian Rangel, and Weyker told Corcoran that Rangel did not have any picture identification.  Corcoran held up a copy of a photograph of Sorberanes and asked Rangel if he was the person in the photo.  He grinned, turned his face away, and said he was not.  Corcoran and Weyker thought there was some resemblance between the person in the photo and the person in their custody.

            Rangel said that he lived in apartment #102 and told the officers that Soberanes did not live with him and was not in the apartment.  He said that mail in the apartment would prove that he is Rangel and not Soberanes.  Corcoran asked Rangel if officers could search his apartment for his identification and to look for Soberanes.  Rangel said, “Go ahead and search.”  Weyker testified that Rangel got his keys out of his pocket to hand to the officers, a feat she remembered because not many handcuffed persons could have managed it.  Corcoran remembered Rangel telling her which key was for the apartment door.

            Corcoran and Lewis entered the apartment.  They cleared each room, determining no one was present.  Corcoran saw .22 caliber bullets on the entertainment center in the living room.  Corcoran and Lewis saw that the doors to Rangel’s bedroom closet were open.  Lewis checked the closet to make sure no one was in it and observed, in plain view, two scales and, in a shoe, a plastic package of what looked to him like a controlled substance.  The officers secured the apartment, and Weyker subsequently obtained a search warrant for the apartment. 

            Because there was no picture identification in the apartment, Rangel was transported to the county juvenile unit where Sergeant Lemon, who knew Soberanes and had issued the pick-up orders, confirmed that Rangel is not Soberanes.  Lemon, in a five-to-ten minute unrecorded interview with Rangel, obtained Rangel’s signature on a consent-to-search form because the officers did not have the form with them at the scene.  Lemon, after interrogating Orbe and Linares, conducted a videotaped interview with Rangel.  The videotape of the interview and a transcript of the interview were admitted at the suppression hearing.  At the very beginning of the interview, Rangel acknowledged that he had signed the consent-to-search form.  Lemon read a Miranda warning that Rangel signed, and Rangel agreed to talk to Lemon.  The interview at first focused on Rangel’s connection with Soberanes.  Lemon asked several times if there were any guns in Rangel’s apartment, and Rangel said there were not.  More than half-way through the interview, Lemon asked if there were things in the apartment that should not be there, and, after several additional questions, Rangel admitted that there was “dope” in his closet.

            Rangel was charged with first-degree controlled-substance crime.  He moved to suppress the evidence supporting the charge, using a form notice of Rasmussen hearing issues that did not detail the bases of his challenge to the search or state that he was challenging admission of his post-Miranda statements based on a claim that those statements were tainted by the pre-Miranda interview.  After hearing and post-hearing briefing, the district court denied the motion to suppress.  The matter was submitted to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Rangel guilty and sentenced him.  This appeal followed.

D E C I S I O N

 

            “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.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

I.          Lack of interpreter

            We initially address Rangel’s claim that his due-process rights were violated by the failure of law enforcement officers to provide him with a qualified interpreter.  Rangel implicitly asserts that, because of his difficulty in speaking or comprehending the English language, he is a “person handicapped in communication” as defined in Minn. Stat. § 611.31 (2004).[1]  Such a person is entitled to the services of a qualified interpreter at the earliest possible time following apprehension by law enforcement.  Minn. Stat. § 611.32, subd. 2 (2004).  Rangel asserts that he “did not intelligently, voluntarily, and knowingly waive his constitutional rights, [because] he could not understand what he was giving up or agreeing to.”

            English is not Rangel’s first language, but the mere fact that a person is Hispanic is not sufficient to put law enforcement officers on notice that a person is handicapped in communication and therefore in need of a qualified interpreter.  State v. Perez, 404 N.W.2d 834, 839 (Minn. App. 1987), review denied (Minn. May 20, 1987). 

            All of the officers testified that there was no difficulty in communicating with Rangel at the scene of his arrest.  At the suppression hearing, Rangel initially answered questions in English before they were translated into Spanish and had to be reminded to use the services of the qualified interpreter.  He testified that he understands “[a]lmost most of” the English language.  He testified that he had “[a] little” trouble understanding what the officers were asking him at the scene and that he understood what they were saying to him.  He testified that he understood everything that was said to him during his recorded interview, which is corroborated by the videotape recording and transcript.  The record supports the district court’s finding that “[t]here is absolutely no credible evidence before this court to support [Rangel’s] assertion that he now makes that he did not understand.”  Rangel’s due-process argument is without merit.

II.        Seizure

            It is undisputed that Rangel was seized when he was ordered out of his vehicle at gunpoint.  Rangel argues that the seizure was illegal.  The Fourth Amendment to the United States Constitution and Article I, section 10, of the Minnesota Constitution protect citizens from unreasonable government searches and seizures.  A seizure occurs when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quotation omitted).  “A limited investigative stop is lawful if the state can show the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  The police officer must provide objective support for her suspicions and prove that the “stop was not the product of mere whim, caprice or idle curiosity, but was based on ‘specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

            We review de novo the question of whether a seizure is justified by reasonable suspicion or by probable cause.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). 

Rangel agrees that his seizure was legal if the officers reasonably suspected that he was Soberanes.  But he argues that it was unreasonable, under the circumstances, for the officers to suspect that he was Soberanes.  We disagree. 

            Given Orbe’s reaction to seeing a Hispanic male in the SUV, his reluctance to identify that person, and the fact that the person was parked in front of the apartment where Soberanes was thought to be located, Corcoran’s suspicion that the person in the SUV was Soberanes was not based on a mere whim or hunch.  Given Corcoran’s knowledge of the potential danger posed by Soberanes, the district court correctly concluded that the officers had a reasonable, articulable basis to immediately seize the suspect.  Because two officers thought that Rangel resembled the somewhat dated photograph of Soberanes and because Rangel’s identity could not be verified, the officers were also justified in prolonging the seizure until Rangel’s identity could be verified.

III.       Search of the apartment

            Absent either consent or probable cause combined with exigent circumstances, a warrantless search is an invasion of a person’s reasonable expectation of privacy.  State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998).  No exigent circumstances justify the search in this case, but the district court found that Rangel voluntarily consented to the search.  Rangel asserts that this finding is clearly erroneous.

            An individual’s consent to search his home must be freely and voluntarily given and must be uncoerced.  Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973).  “[T]he question [of] whether a consent to 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 of the circumstances.”  State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (emphasis omitted) (quotation omitted).  The appropriate standard of review is whether the district court “clearly erred.”  Id.  But determining the credibility of witnesses is the exclusive province of the factfinder.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).

            The district court, in the memorandum attached to its order denying Rangel’s suppression motion, noted Rangel’s argument that the officers did not obtain his consent, but found that “the more credible evidence presented indicates that [Rangel] voluntarily allowed the officers to enter his apartment.”  The district court, having already found that Rangel’s seizure was legal, specifically noted that Rangel provided his keys to the officers, signed a consent-to-search form, and, until the suppression hearing, never indicated that he had not allowed the officers to enter his apartment.  Under these circumstances, the district court found that Rangel’s consent was freely and voluntarily given.  The district court was fully aware that Rangel had been seized and handcuffed prior to being asked for consent to search.  That the district court failed to include those facts in its discussion of consent does not lead us to conclude that it failed to consider all of the circumstances when it found that Rangel’s consent was voluntary.  Because the record supports the finding, it is not clearly erroneous.

IV.       Post-Miranda-warning statements       

            Rangel argues that the unrecorded interview with Lemon was a custodial interrogation conducted before he was advised of his Miranda rights, and consequently, his post-Miranda-warningstatements should have been suppressed.  In Minnesota,

where a suspect is apprehended under coercive circumstances, is subjected to lengthy custodial interrogation before being given a Miranda warning, does not have the benefit of a significant pause in the interrogation after the Miranda warning is given, and essentially repeats the same inculpatory statements after the Miranda warning as before, the statements made after the Miranda warning are inadmissible.

 

State v. Bailey, 677 N.W.2d 380, 392 (Minn. 2004).  “‘Custodial interrogation’ is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn. App. 2000) (quotation omitted).

            Rangel testified that during the unrecorded interview, Lemon asked him about his relationship with Soberanes and the scales and drugs found in his apartment, and then asked the same questions again in the recorded interview.

            Lemon testified that the unrecorded conversation involved only a review and signing of the consent-to-search form.  Lemon testified that he never mentioned Soberanes, the drugs, or the scales during this encounter.  Lemon testified that there was “a huge time break” between the unrecorded conversation and the recorded interview because after Rangel signed the consent form, Lemon conducted two recorded interviews before he interviewed Rangel. 

            The district court did not specifically address this challenge to the admission of Rangel’s post-Miranda statements.  The state asserts that Rangel’s failure to obtain a pretrial ruling on this issue constitutes waiver on appeal.  Generally, this court will not consider matters not considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Even if this issue is not waived, we conclude that the district court’s memorandum is sufficient for us to determine on review that the district court credited Lemon’s testimony about what occurred in the unrecorded interview.  Rangel’s reluctance to disclose the presence of drugs in his apartment during the recorded interview belies his testimony that he had previously admitted to Lemon that he had drugs in the apartment.  The videotape, which also includes the interviews of Orbe and Lineares, corroborates Lemon’s testimony that he interviewed them before he interviewed Rangel.        

            Furthermore, the unrecorded interview described in this case was not a “lengthy custodial interrogation” of the type that would render Rangel’s later statements inadmissible.  See Bailey,677 N.W.2d at 391-92 (distinguishing Bailey’s circumstances from the facts of State v. Scott, 584 N.W.2d 412, 418-19 (Minn. 1998), in which the court determined that a non-Mirandized interrogation that lasted only 15 minutes during which the defendant made no incriminating statements did not require suppression of his post-Miranda statements).  We conclude that the district court did not err in admitting Rangel’s post-Miranda statements.

            Affirmed.

            WRIGHT, Judge (dissenting)

            Because the totality of the circumstances establishes that appellant Christian Rangel’s consent was not voluntary, I respectfully dissent. 

            A defendant’s voluntary consent to search is subject to careful appellate review.  State v. George, 557 N.W.2d 575, 581 (Minn. 1997).  It is our task to determine whether Rangel’s consent to search was “without coercion or submission to an assertion of authority.”  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046 (1973)).  In doing so, we consider whether, under the totality of the circumstances, a reasonable person would have felt free to refuse the officers’ request.  Bustamonte, 412 U.S. at 228-29, 93 S. Ct. at 2048-49.

            The district court concluded that “the more credible evidence presented indicates that the defendant voluntarily allowed the officers to enter his apartment.  In fact, the defendant provided them with his apartment keys.”  But factors such as the nature of the encounter, the tone of voice used by the officers during the encounter, the show of force and authority evident from the number of officers present, and the brandishment of weapons were not addressed in the district court’s analysis of whether Rangel’s consent was voluntary.  These factors are particularly relevant because it is at the point “when the right to say no to a search is compromised by a show of official authority[ ] that the Fourth Amendment intervenes.”  Dezso, 512 N.W.2d at 880.

            Rangel’s affirmative response to the officers’ request to search his apartment was given after a sequence of events in the presence of several officers in which he was removed at gunpoint from his vehicle parked in front of his residence, handcuffed, placed in the backseat of a squad car, and then removed from the squad car so that the keys to his apartment could be retrieved.  Indeed, according to Officer Weyker, after giving his consent, Rangel performed the remarkable feat of retrieving the keys while handcuffed.  But to be voluntary, “[c]onsent must be received, not extracted.”  Id.  Given the coercive nature of the circumstances during which Rangel consented, this legal standard has not been met.

            Later, at the stationhouse, Rangel signed a consent-to-search form.  But this occurred while he was still in custody and without the benefit of the constitutionally mandated Miranda warning or any recording of the police interrogation as required by State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (holding that all interrogations at place of detention, including any information about rights and any waiver of rights, must be electronically recorded).  After the Scales recording commenced, Rangel acknowledged that the signature on the form was his.  In light of the manner in which Rangel’s signature was obtained, that a consent-to-search form was signed is of scant probative value as to whether either the oral or written consent was voluntarily given.  Moreover, these actions at the stationhouse are not sufficient to purge the coercive nature of the circumstances under which the original consent to search was obtained.

            On these facts, the state did not carry its burden to show that Rangel’s consent to search his apartment was voluntary.  Because a reasonable person would not have felt free to refuse the officer’s request to search, denial of the motion to suppress is compelled by the United States and Minnesota constitutions.