State of Minnesota, Respondent, v. Laurel Jean Larson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-98-2363

State of Minnesota,
Respondent,
 
v.
 
Laurel Jean Larson,
Appellant.

 

Filed December 7, 1999
Affirmed
Mulally, Judge[*]

Ramsey County District Court
File No. K3981321

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Forsberg, Judge,[**] and Mulally, Judge.

 

U N P U B L I S H E D   O P I N I O N

MULALLY

, Judge

Appellant Laurel Jean Larson challenges her conviction for arson on the basis of the district court's pretrial order denying (1) the motion to suppress her confession, arguing that it was involuntary, and (2) a Rasmussen hearing on her motion to suppress evidence obtained during a warrantless search of her home. We affirm.

 

FACTS

Shortly after 5:00 p.m. on February 10, 1998, St. Paul firefighters were called to extinguish a fire in a two-story, single-family home occupied by appellant Laurel Jean Larson, her husband Donald (the owner), and his brother Dennis. Appellant informed St. Paul fire investigator Stuart Bestland that the fire had been caused by a spark from a hair dryer she was using in a storage room off the master bedroom. Bestland initially determined that the appliance malfunction had ignited the fire.

At 12:40 a.m. on February 11, 1998, firefighters were again called to the residence. They extinguished another fire, this in the master bedroom closet. Before leaving, the firefighters locked the house. On the afternoon of February 11, Bestland went to the house to investigate the cause and origin of the second fire. Bestland spoke with appellant outside the locked house; appellant told him that she was sleeping downstairs, but was awakened by smoke. She had previously gone up to the bedroom to put on her pajamas, but did not know how the fire could have started. Later, she spoke of having knocked over a table lamp in the bedroom, leaving it on the floor of the closet. Bestland asked Donald Larson for permission to enter the home; he consented. Because he found the lamp intact, Bestland concluded that it was impossible for the lamp to have caused the fire.

Bestland was joined in his investigation by John Hackenmueller, a claims investigator for the company that carried Larson's homeowners' insurance. Both appellant and her husband signed a release, valid for one year, allowing the insurance company and its representatives full permission to enter onto the property for purposes of investigation and to remove any items or materials for use in determining the cause and origin of the fire. Hackenmueller read the entire release aloud before the Larsons signed.

Appellant told Hackenmueller inconsistent stories about her activities prior to the two fires. Bestland re-examined the points of origin of the fires and concluded that both fires had been set intentionally. He also determined that appellant's statements were inconsistent with the type and extent of damage observed.

Late in the afternoon of February 11, while Bestland was still at the fire scene, appellant fell, splitting her lip; medics were called to take her to the hospital for treatment. Stating that he could not take care of her, Donald Larson refused to take appellant home after her lip was stitched. Consequently, appellant was admitted to the hospital; her blood alcohol concentration at the time of admission was .344.

On February 12, appellant was interviewed in the hospital by Sergeant Dennis Wilkes of the St. Paul Police Department. During the recorded interview, appellant presented several conflicting explanations as to the cause of the fires; she admitted that she could have started the first fire accidentally, but denied starting the second fire. Later in the interview she admitted that she had intentionally started the second fire, giving two different accounts of the circumstances that led to the fire. Wilkes testified that appellant spoke clearly, was cogent, and did not seem intoxicated at the time of the interview.

Appellant was charged with two counts of first-degree arson in violation of Minn. Stat. § 609.561, subd. 1 (1996). Appellant requested a Rasmussen hearing on the admissibility of her statement to Wilkes. He testified that although she was on a 72-hour hold, she told him she was in the hospital voluntarily and was free to leave. She was seated on the bed without restraints, and he specifically told her she would not be placed under arrest at that time regardless of any statements she made. Appellant did not ask Wilkes to leave, nor did she refuse to answer questions or ask for the interview to stop. Appellant testified at the hearing that she remembered nothing of the interview and did not know if her statement had been given freely and voluntarily. The district court concluded that under the totality of the circumstances, appellant's statement to Wilkes was voluntary and admissible at trial.

At the close of the Rasmussen hearing Monday morning, August 10, appellant requested a hearing on the evidence seized from the residence. The state objected to receiving late notice (faxed to the prosecutor's office late Friday, but first seen by him Monday morning), as the necessary witnesses could not be subpoenaed to testify, and made an offer of proof that appellant and her husband had consented to the entry. Appellant's counsel argued that the evidence had been seized during a warrantless search after the "reasonable time" to investigate had expired, but was unaware of the consent/release form signed by appellant and her husband. Based on appellant's failure both to give proper notice and to allege facts sufficient to show any possibility of a constitutional violation, the district court denied the request for the additional Rasmussen hearing. Following a jury trial, Larson was convicted of one count of first-degree arson.

 

D E C I S I O N

1. Confession

Appellant contends the district court erred by denying her motion to suppress her confession, arguing that the confession was the involuntary product of improper police tactics, particularly as induced through promises not to prosecute.

A defendant is deprived of due process of law under the Fourteenth Amendment when that defendant's conviction is founded on an involuntary statement. State v. Camacho, 561 N.W.2d 160, 169 (Minn. 1997). At a pretrial hearing where the defendant seeks to have a confession suppressed on the ground that the confession was involuntary, the state has the burden of proving, by a preponderance of the evidence, that the confession was voluntary. State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995). This court will accept the district court's findings of fact in regard to the giving of the statement unless those facts are clearly erroneous. State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995). However, the district court's determination of voluntariness is not binding on this court, which makes an independent determination on the basis of the entire record as to whether a statement was voluntarily given. Camacho, 561 N.W.2d at 170; Thaggard, 527 N.W.2d at 807. We make this determination of voluntariness by considering the totality of the circumstances, including

the defendant's age, maturity, intelligence, education, experience and ability to comprehend; the lack of or adequacy of a warning; the length and legality of the detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends.

Thaggard, 527 N.W.2d at 808 (citing State v. Jungbauer, 348 N.W.2d 344, 346 (Minn. 1984)).

A finding that a statement is involuntary within the meaning of the Due Process Clause of the Fourteenth Amendment must be based on evidence of coercive police activity. Williams, 535 N.W.2d at 287. Threats or intimidating techniques, however, are not required for a court to find that the police exercised improper influence. State v. Dominguez-Ramirez, 563 N.W.2d 245, 254 (Minn. 1997). A confession must not be obtained by direct or implied promises. State v. Orscanin, 283 N.W.2d 897, 899 (Minn. 1979) (citing Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964)). The ultimate question is whether the defendant's will was overborne. State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991).

We examine the circumstances surrounding the interview and the transcript to determine whether appellant's statement was voluntary. Appellant was on a 72-hour hold, but told Wilkes that she felt free to leave. Wilkes remained five to six feet away from the bed where appellant was sitting, and was not between her and the door. Wilkes did not attempt to keep a nurse from entering to check on appellant. Appellant was also told that she would not be arrested at that time, whatever statement she gave to Wilkes.

Appellant contends that she was induced to confess by Wilkes's promises that she would not be prosecuted. As she testified to having no memory of the interview, she relies on the following statements from the transcript:

I want you to be honest with me because now is the time to clear this whole thing up.

I want to cut it off real quick before there's a possibility of criminal charges coming out of it.

Well, we'reyou knowI'm not here to crucify anybody or do anything. I'm trying to get it straightened out before it goes any further.

I'm going to have itI found out a long time ago that if I talk to someone first and get it taken care of before it goes any further * * *.

And if there's any criminal charges or anything coming out of it * * *. It's much easier for me, because I don't have to investigate any further, I don't have to look into it any further, and it's easier for you, because it just goes away.

Well that takes you to the firstfirst step toyou knowhelping yourself is telling the truth. And if you need some help, this is the place to get it, you know.

I don't want anything to happen to you or anybody else.

Wilkes testified that because the investigation had just begun, he did not know at that point if criminal charges were to be filed; both accident and diversion were still possibilities.

We conclude that the statements quoted above do not constitute promises that appellant would not be charged with arson if she confessed to intentionally starting the fires. See State v. Hince, 540 N.W.2d 820, 824-25 (Minn. 1995) (concluding that confession was voluntary when defendant was unable to point to any specific words or conduct by interviewing officer that led him to believe he would not be charged and merely argued that the promise of leniency was implicit); Thaggard, 527 N.W.2d at 807, 812 (officer allegedly told defendant that because crime was drug related, he probably would be referred to treatment; supreme court determined that confession was voluntary based on the "key fact" that there was no indication that defendant was led to believe he would not be prosecuted if he confessed).

Appellant also argues that because her blood alcohol content was .344 when she was admitted to the hospital the afternoon of February 11, she was still intoxicated at the time of her interview with Wilkes the following morning, and therefore, her confession to starting the second fire should be suppressed. But the supreme court has determined that intoxication, by itself, is not necessarily proof of involuntariness. State v. Riley, 568 N.W.2d 518, 525 (Minn. 1997). As in Riley, the transcript here does "not compel a conclusion that either [the defendant] was intoxicated at the time of the interview or that the interrogator knew it." Id.

Appellant testified and the tape of her interview with Wilkes was played at the Rasmussen hearing. Appellant was 43 years of age on the date of the interview and had no previous experience with the criminal justice system. Although she admitted to being an alcoholic, she testified at deposition that she had never been diagnosed as having a mental illness. After carefully reviewing the entire interview transcript, we agree with the district court's findings that appellant (1) understood her circumstances, (2) was responsive and cogent, (3) could focus on questions and respond intelligently, and (4) was intelligently evasive, trying to avoid implicating herself, but when she finally did implicate herself, did so voluntarily and knowingly. Additionally, appellant's lack of memory does not nullify the ability to knowingly and voluntarily give the statement.

We conclude, based on the totality of the circumstances, that appellant's will was not overborne. Wilkes did not threaten or pressure her, nor did his statements constitute promises that appellant would not be charged with arson if she confessed to intentionally starting the fires. Therefore, appellant's statement to Wilkes was voluntary and admissible.

 

2. Warrantless Search

a. Rasmussen hearing

Appellant argues that the district court erred in refusing to grant a Rasmussen hearing on her motion to suppress evidence seized during the warrantless search of her home by Bestland and Hackenmueller.

The motion for the hearing, faxed to the state late Friday but first seen by the prosecutor just prior to the Monday morning hearing, was untimely. In felony cases, motions for hearings

shall be made in writing and served upon opposing counsel not later than three (3) days before the Omnibus Hearing unless the court for good cause shown permits the motion to be made and served at a later time.

Minn. R. Crim. P. 10.04, subd. 1. "Shall" is mandatory. Minn. Stat. § 645.44, subd. 16 (1998). However,

[r]ule 10.04, subd. 1 should not prevent the court from hearing at the Omnibus Hearing on the court's initiative (See Rule 11.04.) those issues which first appear or arise at that time if the parties do not need additional time to prepare.

Minn. R. Crim. P. 10.04 cmt. The key determination is whether a party's failure to comply with the notice requirements resulted in prejudice to that party's opponent. State v. Nelson, 483 N.W.2d 739, 741 (Minn. App. 1992). At the hearing, the state demonstrated prejudice by testifying that late notice made it impossible to subpoena the necessary witnesses. The state testified that a letter was sent to defense counsel on July 17, asking specifically for notice of Rasmussen issues so that the appropriate witnesses could be subpoenaed. Defense counsel countered that in mid-June he disclosed a report to the prosecution that Larson had made a statement indicating that the search of the house was nonconsensual, but admitted that this was not followed by a more definite statement of intent to challenge. Appellant argues that a "general statement of the issues" will suffice so long as it is clear to the prosecutor what he or she must address at the suppression hearing, citing State v. Needham, 488 N.W.2d 294 (Minn. 1992). Here, appellant failed to present even a "general statement of the issues." Cf. State v. Balduc, 514 N.W.2d 607, 609 (Minn. App. 1994) (notice sufficient where defense counsel wrote letter to prosecutor giving notice that all "usual" omnibus hearing issues would be contested and requesting that the police officers with relevant testimony be present at the hearing). The timely notice filed for the August 10 Rasmussen hearing referred only to the possible due process violation in regard to appellant's confession.

The district court could have summarily denied appellant's motion for lack of timeliness, but instead gave appellant an opportunity to make an offer of proof sufficient to support a motion to suppress, thereby showing good cause why her motion should be heard notwithstanding the late notice. The state testified that it would be relying in part on the owner's consent for Bestland to enter as reflected in Bestland's report, and Hackenmueller's release/consent form signed by both appellant and her husband. Defense counsel admitted having no prior knowledge of the signed release/consent form.

 

b. Consent

Under the Fourth Amendment, searches conducted without a warrant are per se unreasonable, subject to a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). Courts are particularly reluctant to find exceptions to this rule in the context of a warrantless search or seizure in a home. State v. Othoudt, 482 N.W.2d 218, 222 (Minn.1992) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980)). To justify a warrantless entry and search of a home, even to make a felony arrest, the state has the burden of showing the existence of either (1) consent or (2) probable cause and exigent circumstances. Id. If a warrantless entry is made without consent, or probable cause and exigent circumstances, any evidence found must be suppressed. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16 (1963)).

Appellant argues that her husband's "consent" was merely acquiescence or submission to a show of official authority, and thus invalid. Alternatively, appellant argues that the scope of the search exceeded the scope of consent.

Consent to search must only be voluntary; it need not be knowing or intelligent. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992). Consent can be implied by the circumstances, or from a person's words, gestures, and conduct. State v. Powell, 357 N.W.2d 146, 149 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985). However, even after a valid consent, the search is limited by the scope of the consent given. State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998) The standard for measuring the scope of consent is one of objective reasonableness. Id. (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804 (1991)). Upon review, the district court's determination of consent will not be overturned unless it is clearly erroneous. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).

Bestland's report indicated that he requested, and was granted, permission by the owner, appellant's husband Larson, to enter the house on the afternoon of February 11. There is no indication that Larson's consent was limited in scope, nor did he make any effort to stop Bestland as he moved through the house attempting to discover the origin of the fires. It is objectively reasonable to view such conduct as tacit consent to the search. Hackenmueller also had permission to enter the house; both appellant and her husband signed a release, valid for one year, allowing the insurance company and its representatives full permission to enter onto the property for purposes of investigation and to remove and retain any items or materials for use in determining the cause and origin of the fire. Hackenmueller read the entire release aloud before the Larsons signed. Signing such a release is not submission to a show of official authority, but, rather, a standard quid pro quo prerequisite to payment of loss included in homeowners' insurance policies. Both Bestland and Hackenmueller photographed the aftermath of the fires; Hackenmueller removed the hair dryer, electric cord, and other items pursuant to the terms of the release. Additionally, during her interview with Wilkes, appellant stated that she gave the hairdryer to Bestland and Hackenmueller.

Because we conclude that the warrantless search was valid pursuant to consent, both oral and as evidenced by the signed release form, we do not reach the issue of exigent circumstances. On the basis of appellant's failure both to give proper notice and to allege facts sufficient to show any possibility of a constitutional violation, the district court did not err in denying appellant's request for an additional Rasmussen hearing.

 Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.