State of Minnesota, Respondent, vs. Christopher James Wright, 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This opinion will be unpublished and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

A03-1256

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher James Wright,

Appellant.

 

Filed August 17, 2004

Affirmed
Klaphake, Judge

 

Olmsted County District Court

File No. K9-01-3449

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, 151 SE Fourth Street, Rochester, MN  55904 (for respondent)

 

Melissa Sheridan, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Christopher James Wright challenges the district court's denial of his motion to suppress evidence, arguing that police exceeded the scope of a permissible search during execution of an arrest warrant.  Because appellant consented to the officer's reentry into the apartment in order to turn off the lights, and the drugs were in plain view when the officer entered to turn off the bedroom light, we affirm.

D E C I S I O N

In reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred by refusing to suppress evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The district court's findings of fact will not be set aside unless clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Findings are clearly erroneous if this court, after reviewing the record as a whole, "reaches the firm conviction that a mistake was made."   State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).

            Appellant concedes that police had limited authority to search his apartment for Tyresa Bush because they had valid arrest warrants for both appellant and Bush.  State v. Williams, 409 N.W.2d 553, 555 (Minn. App. 1987); see also Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388 (1980) (concluding that valid arrest warrant gives limited authority to enter suspect's residence, if police have reason to believe suspect is within).  This court stated that "law enforcement officers may conduct, as a precautionary measure, protective sweep searches of areas immediately adjoining the place of arrest without probable cause or reasonable suspicion to believe criminal conduct is occurring."  State v. Bergerson, 671 N.W.2d 197, 203 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

            Appellant argues that the police exceeded the scope of this permissible search when Sergeant Michael Walsh went back through the apartment and, more specifically, into the bedroom, to turn off the lights.  Appellant concedes that Walsh may have had permission to enter the kitchen to turn off the kitchen light, but argues that Walsh had no basis for entering appellant's bedroom, where he observed the drugs.  Appellant asserts that Walsh did not have authority to enter another part of the apartment without a valid warrant or appellant's consent.  See State v. Miranda, 622 N.W.2d 353, 358 (Minn. App. 2001).

            Consent to search must be voluntary and uncoerced.  Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059 (1973); State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).  The Minnesota standard for determining whether consent was voluntary is "whether a reasonable person would have felt free to decline the officer['s] request or otherwise terminate the encounter."  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (quotation omitted).  This is a question of fact to be determined from the totality of the circumstances.  Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2059.

            Appellant testified that, at most, he asked Sergeant Walsh to turn off the kitchen light, not all the lights in the apartment.  Walsh and his fellow officer, on the other hand, testified that appellant's request appeared to extend to all lights in the apartment.  According to the district court's memorandum, this testimony was credible and was supported by a microcassette recording the officers made during the arrest.[1]  We defer to the fact finder on determinations of credibility.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Because appellant gave consent to enter other areas of the apartment in order to turn off lights, police were legitimately in a position to view the contents of the bedroom.

            Under the plain view exception to the search warrant requirement, police may, without a warrant, seize an object they believe to be the fruit or instrumentality of a crime, provided that "(1) [the] police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object's incriminating nature is immediately apparent."  State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995) (quotation and citations omitted) (alteration in original).

            Deferring to the district court's factual findings, we conclude that appellant consented to police entry into his bedroom for the purpose of turning off the lights.  Because police were legitimately in a position to observe the drug evidence in plain view, the district court did not err by refusing to suppress the evidence.  We therefore affirm.

            Affirmed.

[1] Neither the microcassette nor a transcript of the recording was made a part of the record, although the tape was played during the omnibus hearing.