State of Minnesota, Respondent, vs. Wade Allen Bollin, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-97-2121

State of Minnesota,
Respondent,

vs.

Frances Sautner,
Appellant.

Filed July 14, 1998
Affirmed as modified
Holtan, Judge(1)

Lac Qui Parle County District Court
File No. K8960155

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger L. Swenson, Lac Qui Parle County Attorney, 214 Sixth Avenue, Madison, MN 56256 (for respondent)

John M. Stuart, State Public Defender, Cornelia Griffin Farmer, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant).

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant Frances Elaine Sautner argues that her conviction must be vacated because the trial court erred in refusing to suppress the evidence obtained as a result of an unlawful search and seizure. Sautner also argues that the trial court erred in refusing to offset her remaining sentence with time already served. We affirm as modified.

FACTS

Belinda Haugen, whose nickname is "Pix," reported three of her Boston terriers missing. Haugen informed the Lac Qui Parle County Sheriff's office that before the theft she received a phone call from an individual who was interested in purchasing one of the Boston terrier puppies. The phone number was registered to appellant Frances Sautner.

In a seemingly unrelated matter, the Grant County Sheriff's department received a report that some children had been seen unlawfully rummaging through a fire-damaged house. Baseball cards, jewelry, and two collectors' Wheaties boxes were reported stolen. Officers discovered that M.S., Sautner's child, was one of the individuals involved in the theft. A search warrant was then issued authorizing the search of their residence.

Frances Sautner was not home when Deputies Riley and Combs executed the search warrant, which authorized the search for baseball cards, jewelry, and Wheaties boxes. The first things Riley observed upon entering M.S.'s bedroom were two Wheaties boxes sitting on the shelf. Riley then noticed that the shelves were stacked with hundreds of baseball cards. Because there were so many cards, Riley did not seize them. Sitting on the shelf next to the baseball cards was a red memo book with the words "cards secret" written on the cover. Riley, believing that the memo book had something to do with the stolen baseball cards, picked it up and began to read it. On the first page was a written list of property that appeared to be stolen. The seventh entry read: "stole 3 dogs from a lady named Pix."

Riley seized the two Wheaties boxes along with the memo book that contained the list of stolen entries. Riley showed the memo book to Deputy Combs. Combs read the entries and recognized the name "Pix" from the Lac Qui Parle dog theft case. Sautner was eventually arrested and charged with felony theft of the Boston terriers.

At the omnibus hearing, Sautner made a motion to suppress the red memo book. The court denied Sautner's motion, finding that, although the memo book was not specifically listed in the warrant, it was a valid seizure pursuant to the plain-view exception to the warrant requirement. After submitting the case to the judge on stipulated facts, Sautner was convicted of gross misdemeanor theft and sentenced to 365 days. The court stayed 335 days on the condition that she serve 30 days in the county jail. Defense counsel then requested that the court grant Sautner 22 days' credit for time served. The court granted only four days credit for the time Sautner spent in Lac Qui Parle County jail. This appeal followed.

D E C I S I O N

1. Fourth Amendment Seizure

When the facts of a case are not significantly in dispute, this court's role in reviewing a pretrial order suppressing evidence is to review the facts independently and determine, as a matter of law, whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The Fourth Amendment to the United States Constitution and article I, section 10, of the Minnesota Constitution protect the right of the people to be free from unreasonable searches and seizures. When executing a search warrant, an item is lawfully seized if it relates to the incident that prompted the request for the original search warrant. State v. Michaelson, 298 Minn. 524, 527, 214 N.W.2d 356, 359 (1973). The plain-view doctrine is applicable when the police have a warrant to search for a specific object and, in the course of that search, come across some other evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037 (1971). A seizure is justified under the plain view doctrine if three conditions are met: (1) police are lawfully in a position to view the object, (2) the incriminating nature of the object is immediately apparent, and (3) officers have rightful access to the object. In re Welfare of G.M., 560 N.W.2d 687, 693 (Minn. 1997).

In this case, there is no dispute that Deputy Riley, acting under a valid search warrant, was lawfully in a position to view the red memo book. Furthermore, while the memo book was not specifically listed in the search warrant, its incriminating nature was immediately apparent in that it was located next to stolen baseball cards and its cover was labeled "cards secret." The memo book was also related to the incident that permitted the officers' original entry. The warrant authorized a search for stolen baseball cards. After reading the cover of the memo book, the deputy reasonably believed that the contents of the book would shed some light on which cards were stolen. Simply because the memo book ultimately revealed information on an unrelated case does not invalidate the search. Cf. State v. DeWald, 463 N.W.2d 741, 748 (Minn. 1990) (holding trial court did not err in admitting evidence under plain-view doctrine when police executed a valid search warrant pertaining to a separate homicide investigation).

2. Credit for Time Served

Sautner also claims that the trial court erred in refusing to offset her remaining sentence with time already served. The award of jail credit is not discretionary. State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988). Jail credit is determined on a case-by-case basis and is governed by principles of equity. Id. at 779.

In this case, Sautner's sentence was stayed on the condition that she serve 30 days in the county jail. Defense counsel requested that Sautner receive 22 days' credit for time served. The court granted four days' credit for the time Sautner spent in Laq Qui Parle county jail in relation to this matter. The court, however, denied credit for the 13 days she served in Grant County jail on an unrelated matter and for the seven days she spent at the Fergus Falls regional treatment center for a rule 20 competency evaluation.

At sentencing, a trial court is required to:

assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed. Such time shall be automatically deducted from the sentence and the term of imprisonment * * *

Minn. R. Crim. P. 27.03, subd. 4(B) (emphasis added). In jail credit cases, courts focus on ensuring that the credit awarded does not turn on irrelevant concerns or other factors subject to manipulation by the prosecutor. State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994).

There is no dispute that the time spent in Grant County jail was for a separate offense. Sautner nevertheless argues that, according to Minnesota case law, a defendant is entitled to credit for all time in custody since the date of arrest, including time spent on unrelated charges. See id. at 861-62 (granting jail credit for time served on separate offense where complaint charging first offense was filed after conviction for second offense). Sautner was arrested and charged for the theft offense before she was charged in Grant County. The fact that the Grant County charge was dismissed is irrelevant to the jail credit issue. The trial court, therefore, erred in denying Sautner's request for the 13-day credit.

The trial court also refused to grant Sautner credit for the seven days that she spent receiving a rule 20 evaluation. According to Minn. R. Crim. P. 20.01, subd. 9, "the time the defendant has spent confined to a hospital or other facility under this rule shall be credited upon any jail or prison sentence imposed." The use of the word "shall" indicates that granting credit is not discretionary. Minn. Stat. § 645.44, subd. 16 (1996) ("shall" is mandatory). Sautner was ordered by the court to submit to a rule 20 evaluation in connection with this case. She, therefore, is entitled to have her sentence offset by the seven days spent at the Fergus Falls Regional Treatment Center undergoing that evaluation and a credit for the thirteen days on the Grant County charge.

Affirmed as modified.

1. Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. atr. VI, § 10.