State v. Dehn, No. A04-1784 (MN 10/19/2005)

• Decision Date: 19 October 2005
• Docket Number: No. A04-1784.,A04-1784.
• Parties: State of Minnesota, Respondent, v. Douglas Henry Dehn, Appellant.
• Court: Minnesota Supreme Court

Page 1

Unpublished Opinion

State of Minnesota, Respondent, v. Douglas Henry Dehn, Appellant.

No. A04-1784.

Court of Appeals of Minnesota.

Filed October 19, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Olmsted County, File No. K0-03-2002.

Mike Hatch, Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, (for respondent).

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant).

Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.

UNPUBLISHED OPINION

WILLIS, Judge

Douglas Dehn appeals his conviction and sentence for aiding and abetting a controlled-substance crime involving the manufacture of methamphetamine. Dehn argues that the warrantless search of the motel room in which the police discovered the methamphetamine laboratory he was running was unconstitutional. Dehn also argues that the district court (a) erred by denying his request for a downward dispositional departure and (b) violated his right to a jury trial under Blakely by calculating his sentence on the basis of a custody-status point not found by a jury. In his pro se reply brief, Dehn argues that he did not waive his right to an omnibus hearing knowingly and intelligently; alternatively, Dehn argues that his attorney's unilateral decision to waive an omnibus hearing constituted ineffective assistance of counsel. Because we conclude that the district court did not err and that Dehn's pro se claims are without merit, we affirm.

FACTS

In May 2003, relying on an informant's tip that appellant Douglas Dehn was operating a methamphetamine laboratory at Motel 6, Rochester law-enforcement officers obtained consent from the motel manager to enter room 124. The room had been rented to Aaron Huinker, a friend of Dehn's.

The officers knocked on the door, identified themselves, and stated that they had a search warrant. After receiving no response, they entered the room. Based on their observations, the officers concluded that there was an active methamphetamine laboratory in the room. The officers then secured the room, cleared the adjacent rooms, and obtained a search warrant, which they executed the next day.

Dehn was arrested and charged with aiding and abetting first-degree controlled-substance crime. Before trial, Dehn affirmatively waived his right to an omnibus hearing.

At trial, Huinker testified that (1) he was driving and saw Dehn leaving the American Legion Club; (2) Dehn flagged him down and asked him if they could go to Huinker's house to make methamphetamine; (3) Huinker told Dehn that he was not living at the house anymore; (4) Huinker also told Dehn that Huinker could rent a room but was short on money; (5) Dehn then gave Huinker money to rent a motel room; (6) Huinker understood that he would get free methamphetamine if he rented the room for Dehn; and (7) he and Dehn spent approximately 24 hours in the room.

Dehn testified that (1) he saw Huinker as Dehn was leaving the American Legion Club; (2) Huinker gave him a ride to a friend's apartment; (3) after learning that Huinker needed a place to stay and that the brakes in Huinker's car were not working, Dehn lent Huinker $100; (4) he contacted Huinker the next day to buy methamphetamine for a friend; (5) when Dehn arrived at Motel 6, he saw the informant—whom he had met through a friend—standing on a balcony; (6) the informant came to the parking lot and they both went to Huinker's room; (7) he was not involved in the methamphetamine-manufacturing process or giving Huinker money to rent the motel room for the purpose of manufacturing methamphetamine.

A jury found Dehn guilty of aiding and abetting first-degree controlled-substance crime. Dehn moved for a downward dispositional departure, claiming that he was amenable to treatment in a probationary setting. The district court denied Dehn's motion, reasoning that because of a prior conviction, Dehn was subject to a mandatory minimum prison sentence under Minn. Stat. § 152.021, subd. 3(b) (2002). After finding that Dehn had a custody-status point in his criminal-history score, the court sentenced Dehn to the presumptive sentence. This appeal from the judgment of conviction and the sentence follows.

DECISION

I.

Dehn first argues that the warrantless search of the motel room was unconstitutional because the motel manager lacked actual or apparent authority to consent to the search and the search was not justified by an exception to the warrant requirement. The state argues that Dehn waived his right to raise the search issue on appeal by affirmatively waiving his right to an omnibus hearing. Alternatively, the state argues that Dehn lacked a sufficient expectation of privacy in the room to challenge the search.

Waiver

Before trial, Dehn's attorney affirmatively waived Dehn's right to an omnibus hearing. Counsel told the court that there were no omnibus issues and that "it would be our intent to waive any further omnibus proceedings and enter pleas of not guilty . . . and ask that this matter be placed on the jury trial calendar." The court replied, "All right. Mr. Dehn's right to an omnibus hearing is waived."

A defendant waives an issue that is available to him but not raised in a pretrial motion. Minn. R. Crim. P. 10.03. A reviewing court will not decide issues raised for the first time on appeal, including constitutional questions of criminal procedure, unless justice requires that the issues be considered and doing so would not unfairly surprise a party to the appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

Dehn does not dispute that he waived his right to an omnibus hearing or that he otherwise failed to raise the search issue at trial. Instead, Dehn argues that this court should consider the search issue on appeal in the interests of justice because the issue is dispositive and can be decided on the record without additional fact-finding. But because by waiving an omnibus hearing Dehn deprived the state of the opportunity to establish an adequate factual record for the search, the search issue cannot be decided on the record without additional fact-finding. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that because the state had not developed a factual record with respect to an issue not raised in the district court, resolution of that issue was not in the interests of justice); State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (declining to consider the validity of a stop because of the "paucity of the trial court record on th[at] issue").

The validity of the search was not an issue in the district court. The state did not, therefore, inquire about the reasons why the officers opted to enter the room before obtaining a search warrant. Entry without a warrant might have been justified by exigent circumstances. See State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992). But because Dehn waived his right to an omnibus hearing, the factual details of the entry were not developed. The record is therefore incomplete, and it is not in the interests of justice to consider the issue on appeal. Cf. State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (holding that because the record contained sufficient facts for the appellate court to consider alternative theories, there was legal support for the arguments, and alternative grounds would not expand relief previously granted, state did not waive issue raised for first time on appeal); State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994) (holding that because defendant put state on notice that usual omnibus issues would be contested and state had opportunity to respond to argument and to present relevant testimony, defendant did not waive challenge to lack of particularity in search warrant by failing to raise issue with specificity in pre-omnibus-hearing motion).

Legitimate Expectation of Privacy

Even if Dehn did not waive the search issue, because he lacked a legitimate expectation of privacy in the room, Dehn is precluded from challenging the constitutionality of the search.

The rights that the Fourth Amendment guarantees are personal and "may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Rakas v. Illinois, 439 U.S. 128, 138, 99 S. Ct. 421, 428 (1978) (quotation omitted). To claim the protection of the Fourth Amendment, a defendant must thus establish that he personally has an expectation of privacy in the place searched and that his expectation is reasonable in light of property-law concepts or understandings that are recognized and permitted by society. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998); State v. Perkins, 588 N.W.2d 491, 492 (Minn. 1999) (holding that Fourth Amendment protection is not triggered unless aggrieved party demonstrates legitimate privacy interest).

In determining whether a person has a legitimate expectation of privacy in a particular area courts generally consider whether the person owned or possessed the area. See Rakas, 439 U.S. at 148, 99 S. Ct. at 433 (holding that passengers who asserted no property or possessory interest in vehicle lacked legitimate expectation of privacy in vehicle and were not entitled to suppression of seized items). Courts also consider the purpose for which the person was in the area and have distinguished between social and business purposes. See Carter, 525 U.S. at 90-91, 119 S. Ct. at 474 (stating that visitor for commercial purposes retains only a limited privacy interest because "[a]n expectation of privacy in commercial premises . . . is different from, and indeed less than, a similar expectation in an individual's home," and holding that defendants visiting another person's apartment for short time to package cocaine had no legitimate...