State v. Bergerson, A03-112.

• Decision Date: 28 October 2003
• Docket Number: No. A03-112.,A03-112.
• Citation: 671 N.W.2d 197
• Parties: STATE of Minnesota, Respondent, v. Daniel James BERGERSON, Appellant.
• Court: Minnesota Court of Appeals

671 N.W.2d 197

STATE of Minnesota, Respondent, v. Daniel James BERGERSON, Appellant.

No. A03-112.

Court of Appeals of Minnesota.

October 28, 2003.

Charles A. Ramsay, Rebecca Rhoda Fisher, Ramsay, DeVore, Olson, P.A., Roseville, MN, for appellant.

Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.

Considered and decided by WRIGHT, Presiding Judge, and HARTEN, Judge, and G. BARRY ANDERSON, Judge.

OPINION

HARTEN, Judge.

Appellant was convicted of conspiracy to commit first-degree controlled substance crime. In a direct appeal, he challenges the district court's denial of his motion to suppress evidence obtained as a result of the protective sweep search conducted immediately after his arrest. In his associated postconviction appeal, appellant contests the summary denial of his petition for relief for ineffective assistance of counsel. Because we see no valid basis for suppressing the evidence and no abuse of discretion in the denial of the postconviction petition, we affirm.

FACTS

Two Anoka County deputies attempted to execute an arrest warrant on appellant Daniel Bergerson. When the deputies arrived at appellant's parents' residence, a rural farmhouse, they followed a driveway leading to an unattached pole barn near the house because they saw that the overhead, garage-style door of the barn was raised about four feet from the ground.

The deputies approached and peered under the open door into the pole barn. Both saw an individual from the waist down who was standing near a vehicle. The deputies announced their presence and one knocked on the service door adjacent to the overhead door. The other deputy noticed the individual's feet turn away from the doorway. After the deputies called out several times, a man emerged from underneath the overhead door and identified himself as John Hanson. He was the subject of an arrest warrant for traffic violations and was immediately taken into custody.

The deputies asked Hanson if appellant was inside the pole barn. Hanson denied that appellant was in the pole barn and gave other evasive answers. After Hanson was told that he could be charged with aiding and abetting for lying, he admitted that appellant was inside the pole barn. The deputies placed Hanson in one of the squad cars and called for backup.

Several minutes later, the deputies returned to the overhead door and shouted for appellant to come out. When appellant came to the door, the deputies arrested him. After appellant was secured by other officers, two deputies returned to the pole barn to make sure no one else remained inside. They searched the interior of the pole barn and the vehicles inside it. Both deputies had their service revolvers drawn during the search, which lasted two to four minutes. The deputies found no other persons, but they observed evidence indicating the manufacture of methamphetamine, which was later used to convict appellant.

Appellant and Hanson were charged with conspiracy to commit controlled substance crime in the first degree (manufacture of methamphetamine). Appellant moved to suppress the evidence obtained from the pole barn on the ground that the deputies' initial search of the pole barn violated the Fourth Amendment. The district court denied appellant's motion, finding that the deputies had a reasonable suspicion that someone else was in the pole barn. Appellant was convicted; he petitioned for postconviction relief. The district court denied the petition without a hearing. Appellant challenges the validity of the search of the pole barn and the denial of his motion.

ISSUES

1. Was the initial search of the pole barn justified as a protective sweep search?

2. Did the postconviction court abuse its discretion in denying appellant relief based on ineffective assistance of counsel?

ANALYSIS

1. Protective Sweep Search

When reviewing pretrial orders on motions to suppress evidence where the facts are undisputed, we may independently review the facts to determine, as a matter of law, whether evidence need be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

The validity of a "protective sweep" search is an issue of first impression in Minnesota.¹ Relying on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the district court determined that the deputies' initial search of the pole barn met the criteria of a "protective sweep" exception to the warrant requirement under the Fourth Amendment. We agree.² Buie recognized that officers have an interest in taking steps to assure that the area where a suspect is arrested, or was recently arrested, does not harbor other individuals who could be dangerous and capable of aggression. Buie, 494 U.S. at 333,110 S.Ct. at 1097-98. This interest justifies a limited intrusion such as taking reasonable steps to ensure officer safety; this intrusion is comparable to the reasonable steps the police may take to neutralize the dangers of making on-the-street investigative encounters or roadside investigatory stops. Id. at 333, 110 S.Ct. at 1098.

Buie authorized two types of protective searches in conjunction with an arrest. The first type permits officers who have neither probable cause nor reasonable suspicion to look in spaces immediately adjoining the place of arrest, such as closets, "from which an attack could be immediately launched." Buie, 494 U.S. at 334, 110 S.Ct. at 1098. The second type involves searches of areas near, but not immediately adjoining, the place of arrest. The reasonable articulable suspicion standard applies to these searches:

[T]here must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and [Michigan v.] Long [463 U.S. 1032, 103 S.Ct. 3469 (1983)], and as in those cases, we think this balance is the proper one.

Id. A protective sweep search is limited and "may extend only to a cursory inspection of those spaces where a person may be found." Id. at 335, 110 S.Ct. at 1099. The time frame of the search is also limited; it may last no longer "than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id. at 336, 110 S.Ct. at 1099.

The Buie standard for protective sweep searches has been routinely utilized in the federal circuits and adopted in many states.³ We are persuaded that the rationale underlying the protective sweep search is compelling and that the doctrine is appropriate for application in Minnesota. In accordance with Buie, we hold that law enforcement officers may conduct, as a precautionary measure, protective sweep searches of areas immediately adjoining the place of arrest without probable cause or reasonable suspicion to believe criminal conduct is occurring. In addition, we hold that officers may conduct a protective sweep search of areas near, but not immediately adjacent to, the place of an arrest if articulable facts and rational inferences from those facts warrant a reasonable suspicion that the area to be searched harbors one or more individuals who threaten the safety of officers and others at the scene.⁴

Appellant argues that in the instant case, the law enforcement officers did not have a reasonable suspicion that another individual was in the pole barn. Specifically, appellant challenges five of the district court's eight factual findings supporting the court's conclusion that there was a reasonable suspicion. Findings of fact are subject to a clearly erroneous standard of review. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998) (in mixed questions of fact and law, factual findings are reviewed for clear error and legal determinations are reviewed independently).

First, appellant challenges the finding that the deputies knew he had avoided service of the arrest warrant in the past. One deputy testified that he had previously tried to serve the warrant several times; the other deputy testified that he had twice tried to serve the warrant at appellant's parents' residence; and appellant's father testified that deputies had been to his residence "probably three or four times." Appellant's father also admitted lying to officers by telling them that appellant did not live at his residence. The record supports the finding of avoidance.

Second, appellant challenges the finding that the deputies knew of appellant's potential for violence. One deputy testified about a prior domestic incident involving appellant, his then-girlfriend, and some burned clothing at a site that had surveillance equipment and a large dog. While this incident is not direct evidence of appellant's violent nature, it is adequate to support the finding that the deputies knew of appellant's "potential for violence" (emphasis added).

Third, appellant challenges the finding that the deputies were surprised by Hanson's presence. This finding could easily be inferred from the fact that the deputies were seeking and expecting to find appellant, not another suspect, at his parents' residence. See State v. Victorsen, 627 N.W.2d 655, 664 (Minn.App.2001)

(due weight must be given to inferences drawn from district court's findings of fact).

Fourth, appellant challenges the finding that the deputies perceived facts that inferred methamphetamine manufacturing inside or outside the pole barn. One deputy testified that, when peering underneath the overhead door, he saw a can of acetone, a high-pressure tank, and a fan blowing fresh air into the pole barn. The other deputy testified about an ether-ammonia odor that he noticed before entering the pole barn. This finding supports a reasonable...