State of Minnesota, Respondent, vs. Robert Clarence Hensley, Jr., Appellant.

State of Minnesota, Respondent, vs. Robert Clarence Hensley, Jr., Appellant. A04-274, Court of Appeals Unpublished, March 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-274

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Clarence Hensley, Jr.,

Appellant.

 

Filed March 8, 2005

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Chisago County District Court

File No. K7-01-1357

 

 

 

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

 

Katherine M. Johnson, Daniel R. Vlieger, Assistant County Attorney. Chisago County Attorney, 313 N. Main Street, Center City, Minnesota 55012 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant State Public Defender, 2221 University Avenue South East, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

In this appeal from convictions of possession of methamphetamine and of drug paraphernalia, appellant contends that those convictions were based solely on an illegal warrantless search and that the court erred in refusing to suppress evidence obtained in the search.  Because the state failed to carry its burden of establishing an exception to the search warrant requirement, we reverse those convictions.  Other convictions relating to motor vehicle registration and title and to driving after revocation of driver's license, not being dependent on the fruits of the search, may stand.

FACTS

On July 27, 2001, Corporal Scott Berg of the Chisago County Sheriff's Department was at a gasoline station when a car with a loud exhaust drove by.  Corporal Berg decided to stop the car for an exhaust violation and he began to follow it.

The car stopped in front of a residence and the lone male occupant got out.  Corporal Berg recognized him as appellant Robert Hensley, with whom the corporal had previously become familiar.

As Corporal Berg stopped his squad car, Hensley was entering the breezeway between a house and a garage.  Berg called for him to stop but he did not, and Berg lost sight of him.  After Berg unsuccessfully attempted to find Hensley, he went back to his squad car and investigated the registration of Hensley's car.  Berg determined that the rear license tab was not properly affixed; that, although the record showed that the plate had expired, it had a current tab affixed to it; and that the record showed that the tab was registered to another vehicle.  Corporal Berg then decided to impound the car and he requested that it be towed.

Corporal Berg testified at an omnibus hearing that, while he waited for the tow truck, "I then did an inventory search of the vehicle . . . ."  The prosecutor asked about the inventory search:

Q.        And what's the purpose of the inventory search?

 

A.        To document any items found in the vehicle, so that it can be accounted for when the actual owner if they were to pick it up.

 

Q.        Is that pursuant to policy?

 

A.        Yes, it is.

There was no further testimony about the inventory search policy or the search procedures.  Corporal Berg testified that the search revealed a syringe containing methamphetamine, a fanny pack containing methamphetamine, drug paraphernalia, and paperwork bearing Hensley's name.  It was also determined that Hensley's driver's license had been revoked.

The state charged Hensley with drug possession offenses, motor vehicle registration offenses, and driving after revocation of his driver's license.  He moved to suppress all the evidence and dismiss the charges on the ground that the inventory search was illegal.

After the omnibus hearing, the district court denied the motions, concluding that the search was a lawful inventory search.  The court said: "Standard inventory procedures do exist for the Chisago County Sheriff's Department and Deputy Berg testified that he followed those procedures."  In a footnote, the district court stated: "As in Ture, Deputy Berg's testimony that he followed the procedures implemented by the Chisago County Sheriff's Department is sufficient, however the preferred practice would be to present the Court with the actual policy to review."

After Hensley and the state agreed to submit the case to the court under the procedure approved in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), the district court found Hensley guilty of possession of methamphetamine, possession of drug paraphernalia, three offenses relating to motor vehicle registration and licensing, and driving after revocation of his driver's license.

On appeal, Hensley challenges the methamphetamine and possession of drug paraphernalia convictions on the ground that the search that produced the drugs and paraphernalia on which the charges were based was illegal.

D E C I S I O N

This court reviews de novo the district court's ruling on a motion to suppress evidence.  State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).  We "will not reverse the district court's factual findings unless clearly erroneous or contrary to law."  Id.  Hensley raises two issues on appeal: (1) the propriety of the impoundment and (2) the propriety of the search.

1.         Impoundment

            In determining whether an inventory search is reasonable, the threshold inquiry involves the propriety of the impoundment "since the act of impoundment gives rise to the need for and justification of the inventory.  If impoundment is not necessary, then the concomitant search is unreasonable."  State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977).  Hensley argues that the district court erred in concluding that the impoundment was proper.

Police may take automobiles into custody "[i]n the interests of public safety" and as part of their "community caretaking functions."  South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3097 (1976) (quotation omitted).  Police officers have the authority to impound vehicles that impede traffic or threaten public safety.  Id. at 369, 96 S. Ct. at 3097.  But "[t]he state's interest in impounding must outweigh the individual's Fourth Amendment right to be free of unreasonable searches and seizures."  Goodrich, 256 N.W.2d at 510.  In enforcing state and local parking and traffic laws, a towing authority may not tow, or allow or require the towing of, a motor vehicle from public property for a parking or traffic violation until four hours after issuance of the traffic ticket or citation.  Minn. Stat. § 169.041, subd. 3 (2000).

            Hensley argues that, because his vehicle was neither a threat to public safety and did not impede traffic, the vehicle was not properly impounded.  See Opperman, 428 U.S. at 368, 96 S. Ct. at 3097 (stating that automobiles are frequently taken into police custody in the interests of public safety and as part of their community caretaking functions).  Further, he argues that the officer failed to write a citation and wait at least four hours prior to towing, as required by statute.  Minn. Stat. § 169.041, subds. 2, 3.  As a result of these failures, he contends, the impoundment of his vehicle was unreasonable and unnecessary.  Consequently, the inventory search was invalid and produced inadmissible evidence. 

The record confirms that Hensley's parked vehicle did not impede traffic and was not a threat to public safety.  Further, the record reflects that the officer did not abide by the four-hour statutory requirement ofMinn. Stat. § 169.041, subd. 3.  But there are exceptions to the four-hour requirement, one of which is that "a law enforcement official has probable cause to believe that the vehicle is stolen, or that the vehicle constitutes or contains evidence of a crime and impoundment is reasonably necessary to obtain or preserve the evidence."  Minn. Stat. § 169.041, subd. 4(11) (2000). 

Here, the officer learned that the current tab displayed on Hensley's license plate did not correspond with the computerized registration information.  The record reflects that the officer called for impoundment of the vehicle after determining that the tabs were from another vehicle and that the vehicle was not registered in Hensley's name.  These facts reasonably support an inference that the vehicle was stolen or, at the very least, that impoundment was necessary to preserve evidence related to the crime of improper registration tabs.  See Minn. Stat. § 168.36, subd. 1 (2000) (prohibiting use of vehicle without proper registration or with improper registration tabs on vehicle).  Although the law allows for confiscation of a license plate as the proper procedure for violations under Minn. Stat. § 168.36, given the totality of the circumstances, the officer determined that impoundment was necessary.  See Minn. Stat. § 168.36, subd. 4 (2000) (providing that "[i]f a peace officer stops a motor vehicle and determines, through a check of the motor vehicle registration record system, that the vehicle is being operated while the certificate of registration for the vehicle is revoked, the officer may immediately seize the vehicle's registration plates and destroy the plates or return them to the commissioner of public safety"); see also United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981) (recognizing that officers may base suspicions on inferences and deductions from police training or experience).  The suspicion here was compounded by the officer's observation of Hensley's evasive behavior.  And "[t]he police will generally be able to justify an inventory when it becomes essential for them to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger."  City of St. Paul v. Myles, 298 Minn. 298, 304, 218 N.W.2d 697, 701 (1974).  Here, Hensley had disappeared and his car, in its current condition, could not be moved legally without being towed.  Given all of the facts that the officer was confronted with, impoundment was justified. 

2.         Inventory Search

            Corporal Berg did not have a warrant to search Hensley's car.  "Warrantless searches are per se unreasonable unless an exception applies."  State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)), review denied (Minn. Jan. 27, 1999).  There is an exception to the requirement of a search warrant if the search is an inventory of a properly impounded vehicle.  State v. Ture, 632 N.W.2d 621, 627-28 (Minn. 2001).

The inventory search exception "permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation."  Id. at 628.  There may properly be a dual purpose for the search, namely, an administrative inventory and an investigation.  Id. at 629.  But to qualify for the inventory search exception, it must be shown that at least one legitimate purpose was an administrative inventory search.  Id.  A legitimate inventory search may be established by proof that the law enforcement agency had a standard inventory search policy and that the officer followed and complied with that policy in conducting the search. Id. at 628.  A written policy need not be introduced in evidence as long as the officer is able to provide testimony from which the district court may reasonably conclude that standard inventory procedures exist and that the officer conducted the search in accordance with those procedures.  Id.   The state bears the burden of proving the existence of an exception to the search warrant requirement.  Id. at 627. 

Even though the district court expressed some concern that the state did not offer the actual inventory search policy for the court's review, the court concluded that "standard inventory procedures do exist for the Chisago County Sheriff's Department . . . ," and that Corporal Berg followed those procedures.  We hold that these conclusions were error.

Corporal Berg testified only that he conducted an inventory search and that it was "pursuant to policy."  This limited testimony does not establish that the sheriff's department had a standard policy for inventory searches; it does not reveal what that policy, if any, is; and it does not demonstrate that the deputy complied with that policy in conducting the search.  Unless the district court knows from the evidence before it what the standard law enforcement agency policy is and where, when, and how it may be invoked, the court has no basis whatsoever to conduct a meaningful review and determine whether the search was in fact a legitimate inventory search.  There was no such evidence here.

The state has failed to carry its burden of establishing the existence of the inventory exception to the search warrant requirement.  Thus, all fruits of the illegal warrantless search should have been suppressed.

Our holding relates only to the convictions of controlled substance crime in the third degree possession of methamphetamine and possession of drug paraphernalia.  Because those convictions were based entirely on the fruits of the illegal search, they cannot stand.

The convictions respecting registration, title, and driving after revocation arise from Corporal Berg's lawful investigation or lawful impoundment of the vehicle and those convictions may stand.

Affirmed in part, reversed in part, and remanded.