State v. Olson, C6-90-831
| Decision Date | 28 February 1992 |
| Docket Number | No. C6-90-831,C6-90-831 |
| Citation | 482 N.W.2d 212 |
| Parties | STATE of Minnesota, Respondent, v. Larry Brian OLSON, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Trial court in its instructions to jury in marijuana possession case erred in singling out and emphasizing one factor bearing on determination of issue of constructive possession of marijuana and, since evidence was such that error may have contributed to the verdict, new trial is required.
Michael K. O'Tool, Maplewood, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Asst. Atty. Gen., St Heard, considered and decided by the court en banc.
Paul and Thomas Simmons, Renville County Atty., Olivia, for respondent.
The decisive issues in this marijuana possession case are whether the trial court erred in instructing the jury pursuant to Minn.Stat. Sec. 152.028, subd. 1, which authorizes the fact finder in drug prosecutions to infer knowing possession if certain circumstances are present, and, if so, whether the error was prejudicial error requiring a new trial. Answering both questions affirmatively, we reverse defendant's conviction of possessing marijuana weighing 50 or more kilograms and remand for a new trial.
In June of 1989 the county weed inspector in Renville County received a complaint from an adjacent landowner about weeds on a small farm of which the owner was believed to be a man named Raymond Kraetsch, a resident of Racine, Minnesota. The inspector sent a summer employee, Loren Ewer, to investigate the complaint. Ewer knocked on the farmhouse door many times but received no response, even though a light was on and the radio was blaring away. Ewer apparently felt someone might be injured, hurt or even deceased so he removed a screen and entered the house. Inside he saw marijuana strewn about.
He told his superior, who told the sheriff, who told the county attorney. The county attorney told the sheriff to suspend any law enforcement activity on the matter because of the manner in which Ewer obtained his information, but also told the sheriff to make contact with whoever was living there and tell that person about the break-in.
Deputy Doug Pomplum was assigned the duty to make contact with whoever lived there, but this proved to be a difficult task. Pomplum drove by the place every day on the way to and from work but never saw anyone there. Through the middle of July these attempts to make contact were unsuccessful, although the sheriff's office did learn that a car seen there on two occasions was listed to a resident of Fifty Lakes, Minnesota, and that her boyfriend, defendant, had a criminal record. Finally, on July 17, the deputy saw defendant on a tractor discing and stopped and told him about the break-in. When the deputy asked defendant if he wanted to go in with the deputy and see if anything was missing, defendant said no.
After the meeting the sheriff's office did a follow-up computer check and learned that there was an outstanding Ramsey County bench warrant for defendant's arrest for failure to show up for a jail sentence on a driving after suspension conviction. Attempts to serve the warrant on defendant were unsuccessful (because he was never seen there) until 3 months later, on September 28.
After the deputy saw the car there on that day, the sheriff and the deputy went to the house and knocked on the door. Defendant came outside, wearing only jeans, and was placed under arrest. There was a factual dispute at the omnibus hearing about what happened at this point, but the omnibus court accepted the officers' version of events. Their testimony indicated that defendant was given the choice of going to the station as he was or of going back into the house and getting shoes, socks and a shirt and was expressly told that if he went into the house they would have to accompany him. Their testimony indicated that defendant said that that was okay, that he wanted to put on some more clothes.
Once inside the house, the sheriff and deputy saw basically the same things the weed inspector had seen--small amounts of marijuana scattered about, guns visible in an open closet, a vacuum sealer in the kitchen, and some drug paraphernalia of the kind usually associated with the use of cocaine powder.
On the basis of what they saw, the officers decided to place defendant in the nearest jail, then obtain a search warrant, with the deputy guarding the house in the meantime. Before leaving, however, the sheriff and the deputy re-entered the house and conducted a sweep to make sure no one was hiding who could use the guns on the deputy or destroy evidence. They entered each room of the house, finding on the ground floor large amounts of marijuana in a closet abutting the kitchen and some marijuana scattered about in various areas. On the second floor the officers discovered more marijuana scattered about and a room which was obviously used as a drying room for marijuana.
Later that day, accompanied by other officers, they executed a search warrant. In the large barn near the house, which they entered by breaking a padlock, they found a substantial marijuana growing operation with 901 marijuana plants of very high quality. The plants had to be manually watered and that had been done not too long before the warrant was executed. Attached to a tractor they found a front-end loader full of vermiculite and soil of a kind that was used in the growing operation. In a shed there was a bypass around the electric meter so that the current usage for the growing lights in the barn was not metered.
The marijuana in the barn loft weighed 32.5 pounds. The marijuana plants with an unmeasured amount of dirt clinging to their roots weighed 133.25 pounds. The marijuana found in the closet abutting the kitchen weighed 70.75 pounds. The marijuana found scattered about the living room weighed less than one ounce.
The trial court denied the motion to suppress and rejected defendant's challenge to the constitutionality of the legislatively-enacted "permissive inference" of knowing possession.
Defendant testified that he was hired just to disc and weed for the owner every couple weeks and that he had only slept in the house a few times. He admitted seeing marijuana in the house but testified that he did not exercise dominion or control over it.
The jury found defendant not guilty of the charged offense of controlled substance crime in the first degree (possession of marijuana weighing 100 or more kilograms) but guilty of the lesser-included offense of controlled substance crime in the second degree (possession of marijuana weighing 50 or more kilograms). 1 The trial court sentenced defendant, whose criminal history was 2, to the presumptive sentence of 68 months in prison.
As a preliminary matter, we have no hesitancy in affirming the trial court's denial of the motion to suppress. Defendant's argument that his arrest was an unlawful "pretext" arrest, an argument based on State v. Hoven, 269 N.W.2d 849 (Minn.1978), is answered by decisions of this court subsequent to Hoven in which we have held that if there is an objective legal basis for it, an arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive. See, e.g., State v. Everett, 472 N.W.2d 864, 867-68 (Minn.1991), and State v. DeWald, 463 N.W.2d 741, 748 n. 2 (Minn.1990), Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).
Defendant would not be entitled to relief even under Hoven. The consent in Hoven was deemed tainted because the marijuana seized incident to the so-called pretext arrest was "absolutely instrumental" in provoking the defendant's consent. The consent in this case for the officers to enter the house after the arrest outside clearly was an intervening circumstance and the information obtained while they were in the house was properly relied upon in obtaining the search warrant. See Laing v. United States, 891 F.2d 683, 686 (8th Cir.1989) (). As Professor LaFave points out, if the consent and a second search are not on the same occasion as an illegal search but instead on a later date, very little is required to show that the consent is voluntary and untainted. 3 W. LaFave, Search and Seizure Sec. 8.2(d), at 195 (2d ed. 1987). Here the...
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