State of Minnesota, Respondent, vs. Curry Matthew Pitt and Kirstin Noelle Partanen, Appellants.

This opinion will be unpublished and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

A03-1908

 

State of Minnesota,
Respondent,
 
vs.
 
Curry Matthew Pitt and Kirstin Noelle Partanen,
Appellants.

 

Filed October 20, 2004

Reversed

Peterson, Judge

 

Koochiching County District Court

File Nos. K1-02-404/K3-02-405

 

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

 

Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN  56649 (for respondent)

 

Brian M. Marsden, 1600 University Avenue, Suite 406, St. Paul, MN  55104-3825 (for appellants)

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from multiple convictions, appellants Curry Matthew Pitt and Kirsten Noelle Partanen challenge the district court's pretrial order denying their motion to suppress evidence seized after police detained Pitt, arguing that the evidence should have been suppressed because (1) Pitt's detention was constitutionally impermissible; and (2) the evidence was the fruit of the impermissible seizure.  We reverse.

FACTS

            On May 16, 2002, International Falls police were dispatched to the Holiday Inn hotel to investigate an incident in which hotel guests had checked out of a room the previous afternoon but had spent another night in the room without paying.  The room was registered to Clarance Ritari.  Hotel employees described two men and one woman who occupied the room.

In the room, officers found packaging for three walkie-talkies that were purchased from a local sporting-goods store.  The manager of the sporting-goods store described the two men who purchased the walkie-talkies and provided surveillance videotape that showed the transaction at the store.  The manager's descriptions of the men were similar to the descriptions that the motel employees gave.  While viewing the surveillance tape, officers saw that one of the men shoplifted a gun holster that the manager later valued at $40.  A misdemeanor warrant was issued for Ritari for defrauding an innkeeper.

About two months later, on July 25, 2002, the manager of the sporting-goods store called police to report that one of the men who was involved in the theft of the holster was back in the store.  After arriving in separate squad cars, Sergeant Willie Kostiuk and Officer Jacob Skifstad saw a man who fit the description leaving the store.  The two uniformed officers approached the man outside the store and asked for identification, and the man produced a driver's license, which identified him as appellant Curry Matthew Pitt.  The officers instructed Pitt to keep his hands to his sides when he put them in his pockets.  They also asked Pitt if he had been in the area two months earlier, whether he removed anything from the store without paying for it, and how he got to the sporting-goods store. 

Pitt admitted that he was in the store on May 15th and said that if he had taken anything, he would gladly pay for it.  He told the officers that he had walked to the store from the Holiday Inn, a distance of approximately two miles.  The officers then asked Pitt if he would come down to the police station to talk further about the shoplifting incident.  Pitt agreed to do so, but he testified that he felt he had no choice.  The officers described Pitt as being very cooperative and quite nervous. 

Before taking Pitt to the police station, the officers conducted a pat search that revealed a knife and a cell phone, which Kostiuk secured.  At the police station, Pitt was placed in a room where he was monitored on a video camera.  The officers did not question Pitt but discussed the case with Sergeant Brian Youso.  Youso phoned the Holiday Inn and learned that Pitt had just checked out accompanied by a tall, thin female with blonde hair wearing a ruffled sweater.  Youso relayed this information to Kostiuk and Skifstad, and Skifstad recalled seeing a blonde female sitting in a vehicle outside the sporting-goods store.  Kostiuk and Skifstad returned to the store in separate squad cars and pulled up beside a black Chevrolet Blazer parked in front of the store.  The Blazer had a dealer license plate.   

A blonde female was sitting in the passenger side of the vehicle.  Skifstad approached the vehicle and asked the woman if she was waiting for Pitt.  She said that she was.  When asked for identification, the woman produced an expired driver's license that identified her as appellant Kirsten Noelle Partanen.  Skifstad described Partanen as "very, very nervous."  Kostiuk testified that Partanen was cooperative.  The officers asked about the vehicle's registration, and Partanen provided a certificate of title signed by Chayla Smith, transferring title.  Partanen said that Pitt had recently purchased the vehicle from Smith, but Pitt's signature was not on the title identifying him as the buyer.  The officers could not contact Smith to confirm Partanen's story.

Kostiuk ran a check on the dealer license plate, which did not reveal anything amiss.  Skifstad testified that both he and Kostiuk thought it was suspicious that the vehicle had only one dealer plate.[1]  Kostiuk asked Partanen if he could search the vehicle, and Partanen said no.  He then asked her if she would lift the blanket covering some items in the back so that he could see if anyone was hiding under the blanket.  Partanen consented and lifted the blanket, which revealed no one was hiding under it.  Kostiuk pulled the magnetized dealer plate from the vehicle and discovered an address and telephone number of the dealership on the back of the plate.  Kostiuk phoned the number on the plate and was told that the plate had been stolen from the dealership.

Because the officers could not confirm that the vehicle had current insurance and that it was not stolen, Kostiuk told Partanen that he was impounding the vehicle.  Kostiuk drove the vehicle to the police station and began an inventory search.  Kostiuk found a large plastic bag filled with what he believed to be marijuana.  He discontinued the inventory and filed a search-warrant application for the rest of the vehicle.  After a warrant was issued, the vehicle was searched, and more than 11 pounds of marijuana and a bag containing methamphetamine were discovered. Partanen was charged with two counts of fifth-degree controlled-substance crime for possession of marijuana and methamphetamine.  She was also charged with possession of drug paraphernalia.

Pitt was charged with possession of drug paraphernalia, unlawful use of dealer plates, possession of stolen dealer plates, and two counts of fifth-degree controlled-substance crime for possession of marijuana and methamphetamine.  Appellants were represented by the same attorney, who filed motions[2] on behalf of both appellants to suppress the evidence discovered in the Blazer and to dismiss the charges on the basis that the officers had no reasonable, articulable suspicion to detain Pitt beyond issuing a citation for misdemeanor theft and lacked reasonable, articulable suspicion to seize Partanen. 

Pitt testified at the omnibus hearing that Youso came into the room at the police station shortly after Pitt arrived, and when Pitt asked if he was under arrest, Youso told him that he was. Youso testified that he did not recall telling Pitt that.  Pitt also testified that he repeatedly asked to speak to an attorney, beginning at the time he first encountered the police outside the sporting-goods store.

The district court denied the motion.  The court found that Pitt was not seized when he first encountered the officers outside the sporting-goods store; Pitt's agreement to go with the officers to the police station was voluntary; Pitt's request for an attorney was not material because no statements were taken or offered after Pitt requested an attorney; detaining Pitt at the police station, though a restraint of his liberty, was not an unlawful seizure but a cooperative act by Pitt; any delay in obtaining an attorney for Pitt was not unreasonable; the interaction between the officers and Partanen was consensual; the officers had reasonable, articulable suspicion to conduct a limited investigation of the vehicle; and the discovery of the marijuana was the product of a valid inventory search after a lawful seizure, or inevitable in any event.

Appellants submitted their cases to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), stipulating to the facts presented in the complaints and in the police reports.  The district court found Partanen guilty of all counts and stayed imposition of sentence pending appeal.  The district court found Pitt guilty of all counts and imposed sentence.  Appellants now appeal the district court's pretrial order denying their motion to suppress.

D E C I S I O N

"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  A reviewing court also determines as a matter of law whether an officer's actions amount to a seizure and if there was an adequate basis for the seizure.  Id. 

The United States and Minnesota Constitutions prohibit the state from conducting unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. Art. I, § 10.  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions to the warrant requirement.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).  The state bears the burden of showing that an exception applies; otherwise, evidence seized as a result of a warrantless search will be suppressed. State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).

For purposes of Article I, Section 10 of the Minnesota Constitution, which prohibits unreasonable searches and seizures, a person has been seized if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.

 

State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983) & United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)).  Circumstances that might indicate a seizure has taken place include "‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'"  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877).  "‘In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.'"  E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877).  The key is whether, when police officers ask questions of an individual or request consent to a search, they "convey a message that compliance with their requests is required."  Florida v. Bostick, 501 U.S. 429, 434-35, 111 S. Ct. 2382, 2386 (1991)(quoted in Harris, 590 N.W.2d at 98).

            At oral argument, appellants asserted that Pitt was unlawfully seized outside the sporting-goods store when the officers retained Pitt's driver's license. The district court found that there was "no evidence to suggest that . . . Pitt was illegally seized" and that Pitt's encounter with the police was consensual.

Retaining a person's personal effects, such as a driver's license or identification card, has been found to be a significant factor in determining whether a person was seized.  See State v. Holmes, 569 N.W.2d 181, 185 & n.3 (Minn. 1997) (finding seizure when officer asked for and retained student-identification card); State v. Johnson, 645 N.W.2d 505, 511 (Minn. App. 2002) (holding that defendant was seized when police took defendant's identification and ran a warrants check); State v. Day, 461, N.W.2d 404, 407 (Minn. App. 1990) (finding seizure when police officer summoned motorist to approach officer's car to provide identification and respond to questioning), review denied (Minn. Dec. 20, 1990); see also Royer, 460 U.S. at 503 n.9, 103 S. Ct. at 1327 n.9 (1983) (noting that officers' taking possession of defendant's airline ticket, luggage, and identification contributed to determination that defendant had been seized because "[a]s a practical matter, [he] could not leave . . . without them").  After approaching Pitt, Kostiuk asked for identification, and Pitt produced his driver's license.  Both officers testified that Kostiuk took the license from Pitt, and neither testified that it was given back; Skifstad testified that he could not recall if Kostiuk returned the license.  Pitt testified that the officers kept his license, but the district court made no finding to that effect; the court found only that the officers identified Pitt after asking him for identification. 

But even if the officers did not retain Pitt's license, we conclude that the officers' encounter with Pitt outside the sporting-goods store amounted to a seizure.  Two officers approached Pitt.  Kostiuk testified that when he approached Pitt, he told Pitt that the manager of the sporting-goods store had called about a theft that occurred two months earlier.  Kostiuk then asked Pitt for identification, and Pitt produced his driver's license.  Skifstad wrote in his report that as the officers spoke with Pitt, Kostiuk twice ordered Pitt to keep his hands out of his pockets, then Kostiuk asked Pitt if he had been in International Falls approximately two months earlier.

By telling Pitt that they were investigating a theft, taking Pitt's driver's license, and ordering Pitt twice to keep his hands out of his pockets, the officers conveyed a message that compliance with their requests was required. Under these circumstances, a reasonable person would have believed that he was neither free to disregard the police questions nor free to terminate the encounter, and therefore, Pitt was seized.

A limited investigative stop is lawful if there is a particularized and objective basis for suspecting the person stopped of criminal activity.  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999).  The officer may justify a decision to seize a person based on the totality of the circumstances and "may draw inferences and deductions that might elude an untrained person."  Cripps, 533 N.W.2d at 391.  "The scope of a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the investigation permissible.  Police may continue the detention as long as the reasonable suspicion for the detention remains . . . provided they act diligently and reasonably."  Smallwood, 594 N.W.2d at 155 (alteration in original) (quotations omitted).  A mere hunch, absent other objectively reasonable, articulable facts, will not justify a seizure.  Harris, 590 N.W.2d at 99.

            The standard for determining whether a stop was justified by reasonable suspicion is an objective one.  State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).  Here, the manager of the sporting-goods store reported to the police that there was an individual in the store whom the manager recognized as having been involved in the theft of the holster two months earlier.  The manager's report provided the officers with reasonable suspicion that Pitt was involved in the shoplifting incident.  But a reasonable suspicion of involvement in a misdemeanor shoplifting offense that occurred two months earlier did not justify an investigative Terry stop.  See Holmes, 569 N.W.2d at 185 (holding that suspicion of prior parking violations does not merit a Terry stop).

Officers may lawfully stop an individual based on reliable information regarding an ongoing misdemeanor offense, but the same is not true with respect to a completed misdemeanor offense. State v. Stich, 399 N.W.2d 198, 199 (Minn. App. 1987).  In Blaisdell v. Comm'r of Pub. Safety, this court held that a Terry stop to investigate a completed misdemeanor is impermissible under the Fourth Amendment because of the limited benefits to the public interest resulting from warrantless stops to investigate past misdemeanors. 375 N.W.2d 880, 884-85 (Minn. App. 1985) aff'd on other grounds, 381 N.W.2d 849 (Minn. 1986) (declining to address whether all stops to investigate completed misdemeanors are impermissible under the Fourth Amendment); see Holmes, 569 N.W.2d at 185-86 (stating that Supreme Court has limited Terry "seizures to those situations where the suspected violation is serious" and suppressing evidence of pistol found as result of search after investigatory stop relating to prior parking violations).  As in Blaisdell, the misdemeanor offense that the officers who stopped Pitt were investigating was not an ongoing offense; the shoplifting occurred more than two months earlier. Blaisdell, 375 N.W.2d at 882 & n.1 (misdeameanor gas theft occurred more than two months before stop).  Therefore, under Blaisdell, the officers could not seize Pitt to investigate that offense.

            The state asserts for the first time on appeal that under Minn. Stat. § 629.366 (2002), the officers had authority to arrest Pitt for shoplifting without a warrant, and therefore, it is immaterial whether the officers had a basis for making an investigative stop.  Minn. Stat. § 629.366, subd. 2 (2002),[3] authorizes a peace officer to arrest a person without a warrant if the officer has reasonable cause[4] for believing that the person has committed shoplifting.

Ordinarily, appellate courts will not consider arguments made for the first time on appeal.  Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002).  But

[a] respondent may raise alternative arguments on appeal to defend a decision or judgment, without filing a cross-appeal, provided that "there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted [to the respondent]."

 

Balenger, 667 N.W.2d at 137, n.1 (quoting State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003)); see Minn. R. Crim. P. 29.04, subd. 6 (establishing exception to waiver rule).  The state argues that the only fact necessary to consider its new argument, that officers confronted Pitt without a warrant for misdemeanor shoplifting, is clearly established by the record.

But even if we assume that the officers had authority under the statute to arrest Pitt for shoplifting, the facts in the record show that they did not arrest Pitt upon approaching him outside the sporting-goods store.[5]  Instead, they seized him and began questioning him.  If the officers had arrested Pitt, he would have been "entitled to a Miranda warning at the time of [his] arrest," informing him of his right to remain silent before the police could question him.  State v. Houston, 654 N.W.2d 727, 735 (Minn. App. 2003) (citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)), review denied (Minn. Mar. 26, 2003). The state does not contend that the officers gave Pitt a Miranda warning before questioning him outside the store.  Therefore, even if Pitt was arrested at the moment he first encountered the police, any statements that he made, and any evidence obtained as a result of his statements, were inadmissible.  See State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998) (statements generally inadmissible if made prior to Miranda warning); State v. Warndahl, 436 N.W.2d 770, 775-76 (Minn. 1989) (fruit-of-the-poisonous-tree doctrine).  The evidence found during the search of the Blazer was obtained as a result of Pitt's statement that he had walked to the sporting-goods store from the Holiday Inn. 
Because Pitt made this statement, Youso called the Holiday Inn and learned that Pitt had checked out of the hotel with a blonde female, which prompted Skifstad to recall seeing a blonde female sitting in a vehicle outside the sporting-goods store and, in turn, prompted the police to return to the store and ultimately search the Blazer.

Citing State v. Eppler, 362 N.W.2d 315 (Minn. 1985), the state argues that because the officers had probable cause to arrest Pitt for shoplifting, "any evidence that flowed from that arrest is admissible."  In Eppler, a woman who was told that she was under suspicion for shoplifting voluntarily appeared with her attorney at a police station and talked with the officer investigating the case.  Id. at 316.  The officer asked the woman if she would let him take her picture and show it and pictures of other women to the eyewitnesses.  Id.  At first, the woman said no, but she agreed after her attorney got the officer to agree to let him preview the photographic display and be present when it was shown to the eyewitnesses.  Id.   The officer reneged on the agreement and showed the pictures to the eyewitnesses without the attorney present.  Id.  The supreme court acknowledged that there is authority for the proposition that when police have no other basis to conduct a search than the defendant's consent, the police must abide by any limits that the defendant places on the consent.  Id. at 317.  But the supreme court held that because the officer had probable cause to believe that the woman was guilty of shoplifting, he could have arrested her and taken her picture immediately without her consent, and, therefore, his failure to abide by the terms of his agreement with the woman did not render the identification evidence inadmissible.  Id. 

The supreme court did not hold in Eppler that when an officer has probable cause for an arrest, any evidence that flows from the arrest is admissible. The supreme court held only that the woman's picture was admissible because the officer had probable cause to arrest the woman for shoplifting and, upon arrest, could have taken the woman's picture without her consent. The evidence that the officers obtained from Pitt was his answers to their questions. Unlike an arrested suspect's photograph, which may be taken without the suspect's consent, an arrested suspect's answers to questions may not be obtained without giving the suspect a Miranda warning.  Edrozo, 578 N.W.2d at 724.  Therefore, having probable cause to arrest Pitt did not, by itself, make his statements and all evidence obtained as a result of his statements admissible.

Citing State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978), the state also argues that because the officers had probable cause to arrest Pitt, there is no basis to suppress the evidence discovered in the Blazer because evidence discovered in a search following an arrest is admissible.  But the evidence in Childs was discovered during a search of the person who was arrested, not during a search of his vehicle.  Id. at 26.  Where police officers have probable cause to arrest, they may properly conduct a search incident to arrest, even if the search occurs before the formal arrest.  In re Welfare of G.M., 560 N.W.2d 687, 694-95 (Minn. 1997).  But to constitute a lawful search incident to arrest, police must confine their search to the arrestee's person and the area within the arrestee's immediate control, which means the area from within which the arrestee might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969).  From the moment that Pitt first encountered the officers until after the Blazer was searched, Pitt was not close to the Blazer.  Therefore, even if the officers had arrested Pitt outside the sporting-goods store for shoplifting, the Blazer was not within the area from which Pitt might have gained possession of a weapon or destructible evidence, and the area that could have been searched incident to the arrest did not include the Blazer.

Reversed.

[1] A vehicle displaying a dealer plate must display one license plate on the rear of the vehicle.  Minn. Stat. § 169.79, subd. 3 (2002).

[2] Appellants' attorney filed two motions to suppress on behalf of each appellant, but filed a single memorandum in support of the motions.

[3] Minn. Stat. § 629.366, subd. 2, states, "Upon a charge being made by a merchant or merchant's employee, a peace officer may arrest a person without a warrant, if the officer has reasonable cause for believing that the person has committed or attempted to commit the offense [of shoplifting]."

[4] "Reasonable cause is synonymous with probable cause." State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978). 

[5] Also, the district court did not determine that there was probable cause to arrest Pitt.