State v. Schweich

• Decision Date: 27 October 1987
• Docket Number: No. C3-87-1005,C3-87-1005
• Parties: STATE of Minnesota, Appellant, v. Kenneth SCHWEICH, Respondent.
• Court: Minnesota Court of Appeals

Page 227

414 N.W.2d 227

STATE of Minnesota, Appellant, v. Kenneth SCHWEICH, Respondent.

No. C3-87-1005.

Court of Appeals of Minnesota.

Oct. 27, 1987.

Syllabus by the Court

1. The trial court did not err in suppressing evidence of cocaine and drug paraphernalia seized in a search of respondent's apartment when respondent's consent to

the search was procured through misrepresentation.

2. The trial court did not err in suppressing evidence of respondent's inculpatory statements when such statements were the fruits of an illegal search and seizure.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, James A. Terwedo, Scott Co. Atty., Kathryn A. Santelmann, Asst. Scott Co. Atty., Shakopee, for appellant.

C. Paul Jones, State Public Defender, Mark F. Anderson, Asst. State Public Defender, Minneapolis, for respondent.

Considered and decided by SEDGWICK, P.J., and PARKER and HUSPENI, JJ., with oral argument waived.

OPINION

HUSPENI, Judge.

This is an appeal from an order suppressing physical evidence of cocaine and drug paraphernalia and also suppressing appellant's inculpatory statements admitting ownership of these items. The state attempted to introduce this evidence in connection with charges against respondent of possession of cocaine and drug paraphernalia. After an omnibus hearing, the trial court found that the state had used deceit and misrepresentation to obtain respondent's consent to a warrantless search of his apartment. Consequently, the trial court found respondent's consent was invalid and suppressed all physical evidence obtained by the search. The trial court also suppressed evidence of respondent's inculpatory statements, finding that they were the fruits of the illegal search. We affirm.

FACTS

Respondent rented the downstairs area of a house owned by Kathy Hynes, who lived on the main floor with her children. Respondent had fallen behind in the rent and this had created hard feelings between him and Hynes's boyfriend, Gary Nemitz a/k/a "Spider."

On the afternoon of February 25, 1987, during the course of an argument between respondent and Spider about the rent, Spider threatened respondent by pointing a rifle at him. Soon after this incident, respondent telephoned the police and reported he had been threatened with a weapon. Four police officers responded at approximately 5:00 p.m.

Officer Michael Marben met respondent outside the house and took him to his squad car. Respondent told Marben the details of the incident and gave other background information about Hynes, Spider and himself.

Meanwhile, Spider was apprehended by two other officers within a block of the house. Ammunition was found on him but no weapon. Spider told the officers that they should tell respondent he (Spider) wanted to kill him (respondent). He also stated that respondent had drugs in his bedroom.

After Spider's arrest, one of the officers, Sergeant Robert Boe, continued to search for Spider's weapon but was unable to locate it. Boe returned to the squad car where Marben and respondent were seated. Speaking to Marben, Boe indicated plans to search the house for Spider's weapon and asked Marben to obtain respondent's consent.

Before Marben discussed the consent form with respondent, respondent volunteered the information that he himself owned a .357 Ruger pistol, which was used for target practice, was loaded, holstered, and located on a window ledge in his bedroom. ¹

Marben read the entire search consent form to respondent and had respondent read at least a portion back to him. Marben explained that obtaining Spider's weapon was important in order to charge Spider with a more severe degree of assault. Respondent signed the consent form.

The parties dispute whether Marben told respondent they would be looking for anything other than the weapons of Spider and respondent. The trial court found that (1) Marben told respondent they would look for Spider's rifle; (2) the consent form authorized a complete search of the premises; and (3) the consent form also authorized the officers to take evidence for criminal prosecution in the case or cases under investigation. Appellant concedes that the only case "under investigation" was Spider's alleged assault against respondent. Respondent did not know the officers suspected he possessed drugs when he signed the consent form.

Subsequently Marben and Boe obtained Hynes's written consent to search the rest of the house. Boe and Detective Gregory Zollner began the search and Marben remained in the squad car with respondent. Zollner testified that they were searching for guns and ammunition but would "obviously keep their eyes open" for drugs.

Upon Hynes's direction, the officers located Spider's rifle (which had previously been described by respondent) and ammunition under the bed in Hynes's son's room. A search of the rest of the bedroom revealed nothing.

Hynes next led the officers to respondent's bedroom where, pursuant to respondent's directions, they recovered his pistol. Zollner left respondent's bedroom and returned to Marben and respondent in the squad car. Zollner requested that Marben take respondent to the station to get his statement on the assault charge. It was approximately 6:00 p.m. when Marben and respondent went to the station.

Meanwhile, Boe continued searching respondent's room and found a large duffel bag four to five feet from the window ledge where the pistol was found. The bag was unzipped and contained scuba gear. Finding nothing of consequence in the main open area of the bag, Boe unzipped a small pocket on the inside and found cocaine in a zip-lock bag, as well as various drug paraphernalia.

Upon arrival at the police station, Marben read respondent his Miranda rights and had respondent sign a standard Miranda warning acknowledgment form. However, at that time Marben did not indicate to respondent that he was under arrest or that he was under investigation. Marben also took respondent's statement concerning the assault charge.

At approximately 7:00 p.m., Boe and Zollner returned to the station, met alone with Marben, and told him to book respondent on charges of possession of cocaine and drug paraphernalia.

Prior to booking respondent, Boe informed him that cocaine had been discovered in the diving bag. Respondent readily admitted that he owned the cocaine and paraphernalia. Boe then informed respondent he was under arrest. As respondent was being escorted to jail, he told Boe that the cocaine was no good because it was "cut." Respondent was subsequently charged with possession of cocaine and drug paraphernalia in violation of Minn.Stat. Secs. 152.01, subd. 10(1), 152.02, subd. 3(1)(d), 152.09, subd. 1(2), 152.092 and 152.15, subd. 2(1) (1986).

ISSUES

1. Did the trial court err in suppressing evidence of cocaine and drug paraphernalia found in a consensual but warrantless search of respondent's apartment?

2. Did the trial court err in suppressing evidence of respondent's inculpatory statements given by respondent when confronted by police who told him they had just found incriminating evidence in his apartment?

ANALYSIS

1. Suppression of Physical Evidence

The first question we must address is whether respondent limited his consent to less than a full search of his belongings. The second question is whether the police exceeded the scope of their authorized search. Extent of search authorized

To justify a warrantless search based on voluntary consent, the state must prove the consent was freely and voluntarily given. Bumper v. State of North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Voluntariness of consent is a finding of fact made by the trial court after considering the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Because the trial court is obviously in the better position to assess the credibility of the witnesses, the state on appeal must show clearly and unequivocally that the trial court erred in finding that consent was involuntary. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977); State v. Auman, 386 N.W.2d 818, 820 (Minn.Ct.App.1986), pet. for rev. denied (Minn. July 16, 1986).

Misrepresentation used to obtain consent to a search will invalidate the consent. United States v. Briley, 726 F.2d 1301, 1304 (8th Cir.1984); United States v. Turpin, 707 F.2d 332, 335 (8th Cir.1983). The state argues that Marben did not misrepresent the purpose of the search, but simply failed to inform respondent of an additional purpose for the search (to look for drugs).

Tacit misrepresentation of the purpose of a search can rise to such a level of deception to invalidate the consent. United States v. Tweel, 550 F.2d 297 (5th Cir.1977); Alexander v. United States, 390 F.2d 101 (5th Cir.1968). In this case, the state candidly admits that the officers intended the scope of their search to include drugs. However, respondent was led to believe the search was necessary only to locate Spider's rifle and respondent's pistol in connection with the assault charge against Spider. Certainly respondent was not informed that he was a criminal suspect.

By not informing respondent he was under investigation before obtaining his consent, the state engaged in the type of government conduct criticized in Tweel at 299-300. Consequently, the trial court was justified in finding that respondent consented to a search for the weapons and did not consent to a complete search of his apartment.

Scope of authorized search

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, 65 L.Ed.2d 410 (1980). A search that exceeds the authorized consent is unreasonable and violates the fourth amendment. United States v. Dichiarinte, 445 F.2d 126, 129-30 (7th Cir.1971). A limited voluntary consent does not authorize "indiscriminate rummagings" into a person's possessions. State v. Powell, 357 N.W.2d...