State v. Schinzing
| Decision Date | 23 December 1983 |
| Docket Number | No. C1-83-829,C1-83-829 |
| Citation | 342 N.W.2d 105 |
| Parties | STATE of Minnesota, Appellant, v. Scott Alan SCHINZING, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Pretrial criminal appeal by the state from an order suppressing evidence on fourth amendment grounds is remanded for a reopening of the omnibus hearing.
Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey County Atty. by Steven C. DeCoster, Asst. County Atty., St. Paul, for appellant.
Richard L. Gill, Gill & Brinkman, St. Paul, for respondent.
Considered and decided by the court en banc without oral argument.
This is an expedited pretrial appeal by the state from an order of the district court granting a motion to suppress evidence on fourth amendment grounds in a prosecution of defendant for possessing marijuana with intent to sell, distribute, or deliver. We remand for further proceedings.
At 3:20 p.m. on March 14, 1983, Officer Joseph A. Zappa of the Maplewood Police Department left the junior high school where he was employed as the school liaison officer, and began driving west on Holloway, a lightly-traveled road on the border between Maplewood and North St. Paul. Since he was traveling west, Zappa was in North St. Paul, just barely out of his jurisdiction.
As he approached McKnight Road, Zappa noticed a car with a driver and two passengers in front of him, also going west. The car had no license plate but had a temporary Florida registration displayed in the rear window. There was a chainlike object hanging from the rearview mirror. Shortly before reaching Fifth Street the car stopped in the middle of the road and then proceeded to make a very wide right turn onto Fifth Street, crossing over into the opposite lane of traffic. Zappa followed the car around the corner and then signaled it to pull off the road.
At the omnibus hearing, Zappa stated that a number of things prompted him to stop the car, including the fact that the car had only a temporary Florida registration instead of a license plate, the car had the chainlike object illegally hanging from the rearview mirror, the driver had illegally stopped the car in the traffic lane and appeared to be lost or confused, and the driver had executed the right turn improperly. Zappa stated that he was not necessarily going to ticket the driver but felt there was enough suspicious activity to justify stopping the car.
Zappa parked his car behind the stopped car. The driver, defendant, got out and started walking toward him. Zappa testified that when the car door opened he saw a knife "stuck in the upholstery of the car [door]." Defendant called out Zappa's name, but Zappa testified that he did not recognize defendant until defendant gave him his name. Defendant, who was then 19 years old, had once been a student at the junior high school where Zappa was liaison officer. When Zappa asked defendant for his license, defendant said that it had been revoked. Zappa then asked defendant to sit in the rear of the squad car while he ran a license check on defendant; that check corroborated what defendant said.
Zappa then contacted North St. Paul police and asked them to send over an officer. In the meantime, Zappa told defendant that he would ask the officer to simply cite defendant and then release him on his signature. Zappa testified that, under this scenario, defendant would not have been allowed to continue driving but either one of his passengers, assuming they were licensed, could have driven the car for defendant, with defendant as a passenger. Zappa asked defendant who his passengers were and defendant gave their names. Zappa immediately recognized them as names of former students at the junior high school. He thought they were probably juveniles in the 17- to 18-year-old age range.
Officer Michael Wolf of the North St. Paul Police Department arrived shortly and parked behind Zappa's car. Zappa approached Wolf and explained why he had stopped the car and what he had learned about defendant's license. He requested that Wolf fill out a traffic citation for driving after revocation and said that he would sign it himself. Zappa and Wolf both testified that Zappa put defendant in the back of Wolf's squad car almost immediately and before Wolf began filling out the citation form.
While Wolf was filling out the form, Zappa walked to defendant's car to see the two passengers. Looking in from the driver's side, he noticed that the knife he had seen previously was now on the console between the driver's seat and the passenger's seat in front. Zappa told the passenger in the front seat to put the knife in the trunk where they would be less tempted to use it foolishly. The passenger took the keys from the ignition, picked up the knife and went to the rear of the vehicle; moments later he came back and returned the keys to the ignition.
There was a dispute in the evidence as to whether Zappa actually saw the passenger put the knife in the trunk. Zappa testified that he remained by the door on the driver's side and that his view was blocked by the open trunk. Defendant, however, claimed that he was still in Zappa's car when this happened and that Officer Wolf had not yet arrived. Defendant testified that he saw Zappa follow his friend to the trunk and stand behind him as he put the knife in the trunk. Wolf testified that he never saw it but he testified that he was busy filling out the citation form and was not watching Zappa or anyone else.
Zappa testified that as he was talking with the passengers he asked them their ages and they both said they were 17. Smelling the odor of alcohol coming from inside the car, he asked them if they had been drinking and they said yes. At this point Zappa walked back and interrupted Wolf, telling him that it appeared that they also had a problem of juveniles who had been drinking and a problem of open bottles. Wolf then came and removed the two from the car and asked them to accompany him to his car.
Zappa testified that, standing on the outside reaching in, he began moving some jackets and looking for open bottles or cans and found three of them, all cans containing malt liquor. In an ashtray on the console he saw a "stone," which is a round device with a hole in it for holding a marijuana cigarette. After removing the stone, he saw a "roach" or butt end of what he believed was a marijuana cigarette. It is not clear from the record whether Zappa opened the ashtray before he saw the "stone" or whether it was already open.
Zappa testified that after he found the "stone" and the butt of the marijuana cigarette, he looked around for Officer Wolf to inform Wolf of what he had found. He could not see Wolf, however, so he went to defendant, who still was in Wolf's car, and asked him where Wolf was. According to Zappa, defendant told him the other two had fled and Wolf was pursuing them. Zappa then began to fear that perhaps the knife was not in the trunk. He testified that, wanting to warn Wolf if that was the case, he immediately got the keys to defendant's car from the ignition and opened the trunk. Upon opening the trunk he discovered, in plain view, the large quantity of marijuana that formed the basis for the felony charges against defendant. He also found a scale and other items. Zappa then called Lieutenant Garhart Brandt of the North St. Paul Police Department and asked him to come to the scene.
Wolf testified that as he was escorting the passengers to the squad car, one of them fled, and the other pushed him and fled also. He testified that this happened about 8 to 10 feet from defendant's car and that he yelled "halt" before he began chasing the two. Nonetheless, Zappa claimed that he was not aware of the flight of the two until after he found the "stone" and the butt of the marijuana cigarette.
Lieutenant Brandt arrived on the scene shortly after receiving the call from Zappa and before Wolf returned. After talking with Zappa, Brandt, who also knew defendant, gave defendant a Miranda warning and then asked for permission to look in his trunk, implying that he would get a search warrant if defendant did not consent. Defendant, knowing that the marijuana had already been discovered, consented.
None of the North St. Paul police officers who testified at the omnibus hearing was questioned about the department's policy about impounding vehicles, but Zappa was questioned about this. He testified that once the juveniles had left it was fair to say that the car "could not be driven away" but would be towed.
The omnibus court made a number of findings, including that Officer Zappa was acting as a police officer outside his own jurisdiction; that if the stop was not a so-called "pretext stop," it was one for a petty misdemeanor traffic violation; that Zappa was not attempting to identify defendant when he asked him for his license because he recognized defendant; that in asking to see defendant's license Zappa was acting as a police officer, not as a private citizen; that the arrest or detention of defendant for driving after revocation was unlawful; that the odor of alcohol established probable cause for an officer but not a private citizen to search for open bottles; that Zappa saw the boy put the knife in the trunk; that, in any event, Zappa had no reason to enter the trunk because if he feared Wolf was in danger he could have called out a warning before Wolf was out of range rather than conducting the search; that Zappa lacked probable cause to believe he would find marijuana in the trunk; that Lieutenant Brandt's request for consent was "window dressing"; and that any consent defendant gave was involuntary. Concluding that there was no valid basis for entering the trunk, the court suppressed the evidence seized, and all derivative evidence such as statements by defendant.
We address, initially, the issue of whether it should make any difference that Officer Zappa was technically outside his jurisdiction. We...
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