State of Minnesota, Respondent, vs. Zamir Andre Riascos, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1079

 

State of Minnesota,

Respondent,

 

vs.

 

Zamir Andre Riascos,

Appellant.

 

Filed May 13, 2003

Affirmed Willis, Judge

 

Washington County District Court

File No. KX013725

 

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

 

Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082-0006 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of fifth-degree controlled-substance crime.  He argues that the district court erred by denying his motion to suppress evidence.  Because we conclude that the district court did not err, we affirm.

FACTS

            Appellant Zamir Andre Riascos was arrested at a Woodbury motel after police found methamphetamine in one of Riascos's pockets and in the bathroom of his room.  At a hearing on Riascos's motion to suppress evidence of the methamphetamine, Woodbury Police Officer Jeffrey Snyder testified that (1) he was on routine patrol at the motel when he and a motel employee heard loud noises coming from Riascos's room; (2) the motel employee knocked on the door to the room and as the door opened, Officer Snyder stood in the hallway; (3) inside the room, Officer Snyder saw containers of alcohol and four people who looked younger than 21; (4) Officer Snyder asked the occupants if they were 21 or older, and three of them produced identification showing that they were; (5) Officer Snyder determined that one of the occupants was younger than 21; and (6) the motel employee informed the four people that they were evicted from the motel, and Officer Snyder then entered the room.

Officer Snyder further testified that (1) after he had entered the room, he saw on a bed a plastic bag that looked like it contained marijuana, he smelled the bag, and it smelled of marijuana; (2) he asked "if there was any other marijuana in the room," told the four people that he "would eventually find" it, and one of the four gave him a bag containing marijuana; and (3) he asked Riascos if there was anything in his pockets that Officer Snyder "should be concerned with," and Riascos removed from one of his pockets a small bag containing methamphetamine.  Officer Snyder denied patting Riascos down or feeling Riascos's pockets before he produced the bag.  Officer Snyder further testified that he also found a small bag of methamphetamine in the bathroom wastebasket.

            Riascos disputed Officer Snyder's account.  Riascos testified that (1) he did not remember whether the motel employee informed him that he was being evicted; (2) Officer Snyder "was giving * * * commands," his voice was "intimidating," and Riascos thought Officer Snyder was placing him under arrest; (3) Officer Snyder ordered him to stand up and put his hands in the air; (4) Officer Snyder then felt Riascos's pockets and patted him down; (5) Officer Snyder told Riascos to empty his pockets; and (6) Riascos then removed the bag of methamphetamine from one of his pockets.  Riascos was asked if felt that he was emptying his pockets "voluntarily," and he responded, "No."

            The district court found that Officer Snyder entered the room after the occupants had been evicted.  The court also found that Riascos consented to being searched when he removed the methamphetamine from his pocket.  The court denied Riascos's suppression motion, and Riascos was convicted of fifth-degree controlled-substance crime under Minn. Stat. § 152.025, subd. 2(1) (2000).  This appeal follows.

D E C I S I O N

When reviewing a pretrial order on a motion to suppress evidence, we independently review the facts and determine as a matter of law whether the district court erred in suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court will not reverse the district court's findings of fact unless they are clearly erroneous or contrary to law.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).

I.

            Riascos first argues that the district court "made no credibility finding with respect to [his] testimony" regarding whether Officer Snyder entered the room before or after Riascos was evicted.  But Riascos testified only that he could not remember whether he was told of the eviction.  Riascos appears to argue that the district court erroneously found that Officer Snyder entered the room after the parties were evicted.  A factual finding is clearly erroneous if an appellate court, "after reviewing the record, reaches the firm conviction that a mistake was made."  State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).  We leave the district court's findings intact as long as they are reasonably supported by facts in the record.  State v. Schluter, 653 N.W.2d 787, 793 (Minn. App. 2002).  Here, the record reasonably supports the district court's finding that Snyder entered the room after Riascos had been evicted.

II.

            Riascos next argues that the district court erroneously found that he consented to a search when he removed the methamphetamine from his pocket.  Consent to a search must be "voluntarily given, without coercion or submission to an assertion of authority."  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046 (1973)).  The voluntariness of consent is a question of fact, which we review under a "clearly erroneous" standard.  See State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).

            Riascos testified that Officer Snyder was "intimidating him" and that Officer Snyder patted him down and ordered him to empty his pockets.  But Officer Snyder denied that he patted Riascos down, and he testified that he told Riascos and the others only that he would eventually find any contraband.  Cf. United States v. Culp, 472 F.2d 459, 461-62 (8th Cir. 1973) (rejecting argument that consent was involuntary when officer announced that police were in process of getting search warrant).  When it found that Riascos voluntarily consented to the search, the district court resolved the conflicting testimony in favor of Officer Snyder's account.  We will not alter what was essentially a credibility determination by the district court.  See Dickerson, 481 N.W.2d at 843.  The court's finding is not, therefore, clearly erroneous.

III.

            Riascos finally argues that the district court erred as a matter of law by denying his motion to suppress because the methamphetamine was the product of an illegal search.  Riascos contends that the contents of his pockets could not have been in Officer Snyder's plain view.  The district court discussed the plain-view doctrine in its order and concluded that the alcohol that Officer Snyder observed from the hallway was in plain view, but the court did not conclude that the methamphetamine was in plain view.  Rather, the court concluded that Riascos had no reasonable expectation of privacy after he was evicted and that he consented to a search by Officer Snyder.

Although Riascos disputes the district court's finding of fact regarding the timing of his eviction from the room, he apparently concedes that he had no reasonable expectation of privacy in the room after he was evicted.  Indeed, he cites State v. Perkins, 588 N.W.2d 491 (Minn. 1999).  In Perkins, the supreme court held that a motel guest lost his reasonable expectation of privacy in his room because he continued to host a loud and disruptive party in the room after receiving warnings about excessive noise.  Id. at 493.  Here, Riascos had no reasonable expectation of privacy in the room after the expiration of his legal right to occupy the room, that is, after he was evicted.  See Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960) (upholding the admissibility of evidence seized in a search of a hotel room when, before the search, the guest had vacated the room and paid his bill).  After Riascos was evicted, Officer Snyder's warrantless entry into the hotel room did not violate Riascos's constitutional right to be free from unreasonable searches.

Riascos also argues that Officer Snyder's "demand" that he and the other occupants of the room show proof of age was an illegal seizure.  He contends that the methamphetamine was a product of this seizure.  Riascos did not raise in the district court the issue of whether he was illegally seized, and this court will generally not consider matters not raised in the district court.  See State v. Conger, 652 N.W.2d 704, 706 (Minn. 2002).  But even if we consider the issue, we conclude that here, there was no illegal seizure.

Officer Snyder requested Riascos's identification to prove that he was of legal age to consume alcohol.  The request was more than simply an inquiry about Riascos's identity and was therefore a seizure.  See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (finding a seizure when identification was requested from a person who likely knew that she was being asked to prove she was innocent of underage drinking).  To justify such a seizure, a police officer must have a reasonable suspicion that the person seized is involved in criminal activity, and the officer must articulate specific facts on which the suspicion is based.  Id.  Here, unlike in Cripps, Officer Snyder was able to articulate an individualized suspicion about the occupants of the room.  Officer Snyder testified that all of the room's occupants appeared to be younger than 21, and he requested identification from all four.  Cf. id. at 392 (noting that officer entered bar and requested identification from "basically just the first person [she] came up to," testified only about the general appearance of all of the bar's patrons, and specified nothing about the patron from whom she requested identification).  Because Officer Snyder articulated specific facts that gave rise to a reasonable suspicion of criminal activity, Riascos was not illegally seized when Officer Snyder requested proof of age.

The district court's findings that Officer Snyder entered the room after Riascos was evicted and that Riascos consented to a search when he removed the methamphetamine from his pocket are not clearly erroneous.  Further, the evidence obtained from Riascos's person and from the bathroom wastebasket was not the product of an illegal seizure.  The district court did not, therefore, err by denying Riascos's motion to suppress the evidence.

            Affirmed.