State v. Berg, No. C0-03-3 (Minn. App. 1/13/2004)
| Decision Date | 13 January 2004 |
| Docket Number | No. C0-03-3.,C0-03-3. |
| Parties | State of Minnesota, Respondent, v. Larry Benjamin Berg, Jr., Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Cass County, Gordon W. Shumaker, Judge. File No. K500759, Affirmed in part, reversed in part, and vacated in part.
Mike Hatch, Attorney General, Cheri A. Townsend, Assistant Attorney General, St. Paul, MN.
Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, Walker, MN, (for respondent).
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Minneapolis, MN. (for appellant).
Considered and decided by Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.
Appellant contends that the district court erred in denying his motion to suppress the fruit of an illegal search; that the evidence was insufficient to support his conviction of a fifth-degree controlled substance crime; and that he was improperly charged with and convicted of the crime of child endangerment. Because the search was proper and the evidence sufficient to support the drug-crime conviction, we affirm that conviction. But, under the circumstances of this case, the law does not permit a charge or a conviction of child endangerment. Thus, we reverse that conviction and vacate it.
Appellant Larry Berg, his two minor children, his girlfriend, and Wade Borders were staying at a cabin owned by Tony Berndt in Pillager. Rick and Wendy DeWolf were in the process of buying the cabin, and Rick DeWolf told Berg and Borders they could stay there in exchange for work on the property. Neither Wendy DeWolf nor Berndt knew of this arrangement.
On July 13, 2000, Wendy DeWolf went to the cabin and discovered that there were people inside, one of whom she recognized as Wade Borders. Believing the people to be intruders, she called the sheriff. Deputy Fagerman, who responded to the call, knew that Borders had an outstanding felony warrant in Crow Wing County. Fagerman unsuccessfully tried to get the people inside the cabin to open the door, called for assistance, and contacted Berndt to get his permission to forcibly enter the cabin. Berndt told him to "do whatever [he] needed to do to get into the residence."
The officers entered the cabin and escorted the people in the back bedroom to the living room. This included Berg, who was wearing a t-shirt and shorts. He was told to sit on a couch.
Fagerman contacted his supervisor and was instructed to arrest the apparent intruders for burglary. While they secured the cabin and did administrative tasks, one of the officers noticed in plain view some drying marijuana plants and drug paraphernalia. Another officer saw a pair of pants on the floor near the couch where Berg was sitting and asked Berg who owned the pants, and he replied that they were his. The officer picked them up and reached into a pocket and found a baggie of a substance resembling marijuana. In another pocket he found a hypodermic needle and syringe with a red liquid inside. After Fagerman learned what the officer found in the pants, he formally arrested Berg for possession of a controlled substance.
The state charged Berg with possession of a controlled substance and child endangerment. While in custody, Berg waived his Miranda rights and admitted the pants were his.
Berg moved to suppress the evidence of the controlled substance on the ground the search was invalid. The district court denied the motion, ruling that the search was incident to a lawful arrest. The court suppressed Berg's admission at the cabin that the pants were his because there had been no prior Miranda warning. But the court held that, even in the absence of Berg's admission, the search would have occurred.
A jury found Berg guilty of fifth-degree controlled substance crime and child endangerment. On appeal, Berg challenges the district court's denial of his motion to suppress the controlled substance, contends that the evidence was insufficient to support the possession conviction, and argues that there was no proper basis for the child-endangerment charge.
When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court will not reverse the district court's findings of fact unless they are clearly erroneous. State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999). Once the facts have been established, the validity of a search is a question of law subject to de novo review. See State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) ().
Berg argues that the district court erred by refusing to suppress the evidence the officers found in Berg's pants pockets because the officer did not have a search warrant and no exceptions to the warrant requirement applied. "Warrantless searches are per se unreasonable under the Fourth Amendment unless the search falls within one of several specific exceptions." State v. Search, 472 N.W.2d 850, 852 (Minn. 1991). If police conduct a warrantless search, "[t]he state bears the burden of showing that at least one exception [to the warrant requirement] applies, or evidence seized without a warrant will be suppressed."State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988). Here, the applicable exceptions to the warrant requirement are (1) searches conducted with consent; (2) searches conducted incident to a lawful arrest; and (3) the doctrine of inevitable discovery. State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986) (citing Katz v. U.S., 389 U.S. 347, 357-58, 88 S. Ct. 507, 514-15 (1967)), review denied (Minn. Aug. 13, 1986).
Berg argues that by searching Berg's pants the officers exceeded the scope of the cabin-owner's consent to do whatever they needed "to get into the residence." The scope of a search is limited by the terms of its authorization. Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401 (1980). A search that exceeds the authorized consent is unreasonable and violates the Fourth Amendment. State v. Powell, 357 N.W.2d 146, 150 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985). A limited voluntary consent does not authorize "indiscriminate rummagings" into a person's possessions. Id. But, when an officer is lawfully present in the home, evidence may be seized if it is in plain view of the officer. State v. Campbell, 581 N.W.2d 870, 871 (Minn. App. 1998).
Here, the officers had consent to enter the cabin and could reasonably seize evidence that was in plain view. The items in Berg's pockets, however, were not in plain view. Thus, the warrantless search of Berg's pockets exceeded an acceptable search conducted with consent and was unconstitutional, unless another exception to the warrant requirement applies.
The state argues that the search was incident to a lawful arrest because the officers were in the process of arresting Berg when one of the officers searched his pants pockets. A person's body and the area within his or her immediate control may be searched incident to a lawful arrest. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). "This exemption ensures officer safety by allowing officers to remove any weapons the arrestee might reach and also prevents the arrestee from tampering with or destroying evidence or contraband." Id.
A search may precede arrest so long as the results of the search that precedes arrest are not necessary to support probable cause to arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564 (1980); State v. White, 489 N.W.2d 792, 795 n. 2 (Minn. 1992). "The test of probable cause to arrest is whether the objective facts are such that under the circumstances a person of ordinary care and prudence (would) entertain an honest and strong suspicion that a crime has been committed." State v. Johnson, 314 N.W.2d 229, 230 (1982) (quotation and citation omitted).
The record shows that officers were able to see at least one person inside the cabin and they repeatedly attempted to get him or any other occupant to come to the door. After determining that the cabin owner had not authorized anyone to be in the cabin, a person of ordinary care and prudence would have a strong suspicion that a crime had been committed.
Once inside the cabin, the officers discovered in plain view evidence of a controlled-substance crime. None of the occupants claimed ownership of the controlled substances. The officers had probable cause to arrest all adult occupants. That entitled them to conduct a search incident to arrest.
The next issue is whether the police officers exceeded the scope of the warrantless search incident to Berg's arrest. To constitute a lawful search incident to arrest, police must confine their search to the arrestee's person and the area within his immediate control—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969).
Further defining the scope of a search incident to an arrest, this court has held that where a suspect was lying face down and his duffle bag was 35-40 feet away, police officers were justified in searching the duffle bag without having first obtained a search warrant. Geer v. State, 406 N.W.2d 34, 36 (Minn. App. 1987), review denied (Minn. July 15, 1987). In that case, Geer claimed that...
To continue reading
Request your trial