State v. Munson

• Decision Date: 18 March 1999
• Docket Number: No. C6-97-1095,C6-97-1095
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Kirk Lenell MUNSON, Appellant.

Page 128

594 N.W.2d 128

STATE of Minnesota, Respondent, v. Kirk Lenell MUNSON, Appellant.

No. C6-97-1095.

Supreme Court of Minnesota.

March 18, 1999.

Syllabus by the Court

The police had probable cause to make a warrantless search of an automobile for contraband, and the issuing judge had a substantial basis for issuing a search warrant for the destination address of the automobile based on information given to the police by a confidential reliable informant and corroborated details.

The search of the vehicle after waiting for the arrival of the canine unit was not unreasonable in terms of scope or time.

The appellant's custodial statements should be suppressed where the state failed to meet its burden requiring proof that it was the accused who initiated further discussions, after he invoked his right to counsel, where the officers' statements were designed to and had the effect of eliciting a response from the accused.

We decline to apply a harmless error analysis under these facts where the appellant has stipulated to the state's facts only to preserve evidentiary issues for appeal.

Affirmed in part, reversed in part, and remanded.

John M. Stuart, Minnesota State Public Defender, Paul C. Thissen, Assistant State Public Defender, Minneapolis, for appellant.

Michael Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

GILBERT, J.

At issue in this appeal from a conviction for possession of cocaine are the trial court's rulings on a motion to suppress evidence. Specifically, the appellant argues that the trial court committed reversible error in: (1) admitting evidence seized in searches of a vehicle and a residence because the searches were unsupported by probable cause and unreasonable in scope and duration; and (2) admitting a confession that was allegedly obtained in violation of his constitutional right to counsel and in substantial violation of the rule established in State v. Scales, 518 N.W.2d 587 (Minn.1994), requiring all custodial statements to be electronically recorded. The court of appeals affirmed the trial court. We affirm in part, reverse in part, and remand to the trial court.

On November 17, 1996, at approximately 9:00 p.m., Officer Robert Kosloske of the Saint Paul Police Department received a call from a person identified only as a confidential reliable informant ("CRI"). The CRI told Kosloske that in 1 1/2 to 2 hours a rented, green 1996 "Bronco or Jeep type vehicle" with Minnesota license plates would arrive at 468 Case Avenue in St. Paul, Minnesota from Chicago, Illinois. According to the CRI, this vehicle contained a large amount of crack cocaine hidden somewhere inside or underneath the vehicle. The CRI said that the occupants of the vehicle would be three African-American males and identified two of those occupants as Kirk Munson and Roosevelt Curtis. The CRI also said that the three occupants may be armed, but had no direct knowledge on that point.

Kosloske reported this information to the precinct sergeant who, in turn, dispatched two officers to monitor the area around 468 Case. At approximately 11:20 p.m., three people in a "newer" green Chevrolet Blazer drove past the officers. One of the officers ran a check on the Blazer's license plates and confirmed that the vehicle was registered to a rental agency.

When the Blazer pulled over to the curb in front of 468 Case, the officers activated the lights on their squad car and pulled up behind the Blazer. The officers approached the Blazer with their weapons drawn and ordered the occupants, three African-American males, to raise their hands. Within a few seconds, other officers arrived on the scene and the occupants were then ordered to exit the Blazer.

While the record is not completely clear on this point, the trial court found that each of the Blazer's occupants were then handcuffed until it was determined he was not armed and then the handcuffs were removed. It is undisputed that the police attempted to identify the suspects and frisked them for weapons. One of the suspects, the rear seat passenger in the Blazer, identified himself as Kirk Munson, the appellant. Another suspect identified himself as Curtis Roosevelt. Finding no weapons on the occupants, the officers placed them into separate squad cars.

The officers performed a cursory search of the Blazer for weapons and then called for a dog trained to locate narcotics. A canine unit arrived about 10 to 15 minutes later and began searching the Blazer. Near the Blazer's glove compartment the dog signaled the presence of narcotics and, upon opening the glove compartment, the police discovered a baggie of marijuana.

After the canine unit completed its search, one of the officers noticed that the plastic cover over the Blazer's spare tire compartment was partially ajar. The officer removed the cover and observed several brick shaped objects inside. He called the canine unit over to investigate, and the dog signaled that there were narcotics in the compartment. An officer then opened one of the "bricks" and observed that it contained a substance that appeared to be cocaine. The officers then seized the bricks and arrested the three occupants. Subsequent tests confirmed that the bricks contained approximately 1,297 grams of cocaine. The entire episode, from the initial stop to the discovery of the cocaine, lasted approximately 20 minutes.

At the police station, Officers Kosloske and Mike Bratsch questioned Munson in one of the station's interview rooms. The interview was recorded on a hand-held micro-cassette recorder that was hidden somewhere near the interview table at which Munson was seated. After asking some identification questions, Kosloske and Bratsch read Munson the Miranda warning and Munson indicated that he understood his rights. The relevant parts of the subsequent interview follow ("" indicates portions of the tape that were indecipherable):

Bratsch: * * * Ok, before we ask you any questions, do you want to tell us what happened tonight?

Kosloske: Keep in mind, Kirk, this is, this is a small window of opportunity and it's closing quickly. Ok? It's closing.

Munson: I think I'd rather talk to a lawyer.

Kosloske: Ok.

Munson: (Breathing noise)

Kosloske: Remember what I said, though. Mike, anything you want to add.

Bratsch: No, it's um, take him and book, attorney only phone calls.

Kosloske: Uh hu (affirmative).

Bratsch: And make sure that all the ah, narcotics is fingerprinted and then talk to his two buddies that were with him and then we'll take the case over to the U.S. Attorney.

Kosloske: Federally.

Bratsch:

Kosloske: Window of opportunity.

Munson: telling me when will you, when will you do that?

Bratsch: Ah, listen, we really can't, I mean, you said you want to talk to a lawyer. I guess you can revoke that right, but we really can't um, exactly what we're gonna do, ok? You're gonna have to make that decision. You said you wanna talk to a lawyer, well, we're gonna have to abide by that. If that's what you wanna do. You know, you're gonna have to make that decision because the ball is in your court now.

Munson: . revoke .

Bratsch: Uh?

Munson: revoke?

Bratsch: What, are you revoking your right to talk to a lawyer? That you want to talk to us?

Munson: Revoking my rights to talk to a lawyer?

Bratsch: Right. That, would you rather talk to us? I mean you have to make the decision right now. You are gonna have to tell us verbally * * *

Munson:

Bratsch:

Munson: get a lawyer.

Bratsch: What do you want to do know [sic]. I mean, now is the time.

Kosloske: us out.

Bratsch: It's 1:40, yea, 1:50 in the morning. So you are gonna have to decide what you want to do. What do you want to do?

Munson: please?

Kosloske: We are going to be asking you questions. That means that you wanna revoke your right to counsel right now. At this moment. Ok? And you want to talk to us. In other words, we want to ask you questions and we want you to talk to us. We need you to revoke your right to counsel right now if that's what you choose to do.

Munson: Ok. I'll talk to you. I revoke it.

Kosloske: You're sure? This is what you want to do.

Munson: Yea. And ask me some, ask me.

Kosloske: Ok. Then, um, let's get back to what Mike originally asked you.

Munson then admitted having some knowledge that the Blazer was transporting cocaine, but was unclear as to the extent of his knowledge or involvement in the operation.

Later that day, November 18, 1996, the police applied for a warrant to search the residence at 468 Case for guns, pagers, financial records, drugs and drug paraphernalia, and paper tending to verify the identity of the residents. The application for the search warrant mentioned the search of the Blazer and the evidence seized therein, but did not mention Munson's interview. That same day, a search warrant was issued and the police searched 468 Case. The police seized two boxes of ammunition, several cellular phones, police scanners, a scale, a pager, and various papers and photographs linking Munson to that address.

At a subsequent Rasmussen hearing, Munson moved to suppress the cocaine seized from the Blazer, the items seized from 468 Case, and the November 18 interview. The trial court concluded that the police had probable cause for the search of the Blazer and that neither the duration nor the scope of the search was unreasonable. The trial court also concluded that the search of 468 Case was supported by probable cause. The trial court found Munson's request to talk to a lawyer was "not an equivocation but is slightly ambiguous." It also found:

[t]he give and take between Kosloske and Bratsch was obviously designed to elicit a response from Munson. * * * The conversation between Kosloske and Bratsch did not constitute a questioning or an interrogation of Munson but...