State of Minnesota, Respondent, vs. James Michael Washington, Appellant.

State of Minnesota, Respondent, vs. James Michael Washington, Appellant. A04-159, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and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

A04-159

 

 

State of Minnesota,

Respondent,

 

vs.

 

James Michael Washington,

Appellant.

 

Filed January 11, 2005

Affirmed in part, reversed in part

Lansing, Judge

 

Ramsey County District Court

File No. K4-03-369

 

 

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; 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 Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from conviction of third-degree controlled-substance crime, James Washington challenges the district court's denial of his pretrial motion to suppress

evidence seized in a warrantless search of his person.  Washington also challenges the part of his sentence that ordered him to pay $100 in restitution.  Because the evidence seized would inevitably have been discovered, we affirm the district court's denial of Washington's motion to suppress.  We reverse the restitution order because it lacked the requisite factual basis.

F A C T S

A St. Paul police officer was dispatched to investigate a theft of $100 from a pull-tab booth at a Days Inn hotel.  While investigating the theft, the officer obtained a description of the alleged perpetrator, including the name "Big Mike," and information on the perpetrator's likely location at 750 North Milton Street.

            When the officer arrived at 750 North Milton Street, he saw two men sitting in a car.  As the officer approached, one man got out of the car and responded, "Yes," after the officer called out, "Big Mike."  The officer explained to Big Mike, who was later identified as Washington, that he was investigating a theft from a pull-tab booth.  According to the officer, Washington said, "It wasn't that much."  Washington then answered the officer's questions that verified his name and date of birth.

The officer decided to transport Washington to the Days Inn for identification, and conducted a pat-down search of Washington in preparation for placing Washington in his squad car.  During the search the officer seized a plastic bag containing cocaine.  He arrested Washington for illegal possession and ran a routine check of Washington's name, which showed an outstanding warrant for Washington's arrest.

At a contested omnibus hearing, the officer explained that he searched Washington because he "wanted . . . [to] make sure he didn't have any weapons or anything that would cause harm to me while he's seated behind me [in the squad]."  He testified that Washington cooperated, was not combative, and made no suspicious movements.  He also testified that, although overcast, it was not dark when he encountered Washington.  Finally, the officer testified that, regardless of the result of the protective, weapons search, he would have checked for outstanding warrants before "releas[ing]" Washington.

            Washington was charged with third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 2(1) (2002).  Washington moved to suppress the cocaine seized by the officer, arguing the search was illegal because the officer did not have a basis for believing Washington was armed and dangerous.  The court denied Washington's suppression motion, stating that "the items would have been found anyway" and that the officer had "an articulable suspicion that a crime had been committed" and "a right to take the suspect back [to the pull-tab booth]."

Washington and the state agreed to submit the charge to the court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court determined Washington was guilty of third-degree controlled substance crime, and sentenced Washington to the sixty-month guidelines sentence.  The district court also ordered Washington to pay $100 in restitution, apparently in compensation for the alleged theft of $100.

D E C I S I O N

I

In our review of a pretrial order dealing with suppression of evidence when the facts are not in dispute and the district court's decision is a question of law, we independently analyze the facts and determine, as a matter of law, whether the evidence should have been suppressed.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  This independent review extends to the determination, on undisputed facts, of whether an exception to the warrant requirement applies.  Id.

Both the Minnesota and United States Constitutions protect against unreasonable searches and seizures by state authorities.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are presumptively unreasonable unless one of "a few specifically established and well-delineated exceptions" applies.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  One exception to the warrant requirement is that a person's body and the area within his or her immediate control may be searched incident to a lawful arrest.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)).  Another exception permits the admission of improperly seized evidence if the state can demonstrate that, even if the improper police conduct had not occurred, the evidence eventually would have been discovered.  Id. (citing Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509 (1984)).

The police officer detained Washington to investigate an alleged theft.  The officer testified that it was his routine procedure to check for outstanding warrants when he is "going to arrest" someone.  The officer also testified that he was "very comfortable" in his belief that Washington was the person responsible for the theft.  Finally, the officer explained that he would have checked for outstanding warrants before "releas[ing]" Washington "no matter what happened as a result of [the theft investigation]."

Washington contends that the officer's routine procedure was to check for outstanding warrants only if he intended to immediately arrest a suspect.  Therefore, Washington argues, the officer would not have inevitably run a warrant check on Washington because he could not immediately arrest Washington for a misdemeanor that did not occur in his presence.  See Minn. Stat. § 629.34, subd. 1(c)(1) (2002) (stating an officer may arrest suspect "when a public offense has been committed or attempted in the officer's presence").

But Washington does not contest the officer's authority to temporarily detain him for questioning about the theft.  See State v. O'Neill, 299 Minn. 60, 65, 216 N.W.2d 822, 826 (1974) (observing that police officer investigating misdemeanor may temporarily detain person for questioning).  The officer's testimony demonstrates that he would have checked for outstanding warrants before he "released" Washington from theinvestigatory detention.  Thus, the officer would have inevitably learned of Washington's outstanding warrant and would have been required to arrest Washington.  See Robb, 605 N.W.2d at 101 n.2 (determining that police officers have no discretion on whether to arrest when arrest warrant exists).  A search incident to a lawful arrest is a valid, warrantless search.  Id. at 100 (discussing search incident to lawful arrest and inevitable discovery).  The district court did not err in denying Washington's motion to suppress.

Because the denial of Washington's suppression motion was proper under the inevitable discovery doctrine, we do not address Washington's contention that the search was improper because of the officer's lack of reasonable suspicion that Washington was armed and dangerous.  See In re Welfare of M.D.B., 601 N.W.2d 214, 217 (Minn. App. 1999) (explaining that reasonable basis to search person before placing that person in squad car requires "either a reasonable suspicion that the person is armed and dangerous or the existence of other circumstances that pose a threat to the officer"), review denied (Minn. Jan. 18, 2000).  For the same reason, we do not reach the alternative argument raised by Washington in his pro se supplemental brief.

II

Washington argues that the district court erred in ordering him to pay restitution.  The state concedes that the restitution order does not have an adequate factual basis.  A district court may order restitution to the victim of a crime for economic losses incurred as a consequence of the crime.  Minn. Stat. § 611 A. 04, subd. 1 (2002).  The district court has wide discretion in ordering reasonable restitution, but a factual basis must exist for establishing the victim's loss.  State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985).  The proceedings establish no connection between Washington's conviction for third-degree controlled-substance  crime and the alleged theft from the pull-tab booth.  Consequently, the restitution order cannot be sustained.

            Affirmed in part, reversed in part.