State of Minnesota, Respondent, vs. Gary Allen Kowalewski, Appellant.

State of Minnesota, Respondent, vs. Gary Allen Kowalewski, Appellant. A04-1756, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A04-1756

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gary Allen Kowalewski,

Appellant.

 

 

Filed September 13, 2005

Reversed
Klaphake, Judge

Halbrooks, Judge, dissenting

 

Olmsted County District Court

File No. K0-02-661

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 4th Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            On appeal following his conviction for fifth-degree controlled substance crime, appellant Gary Allen Kowalewski challenges the district court's denial of his pretrial suppression motion.  See State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980) (approving procedure for bench trial on stipulated facts to allow challenge to pretrial orders).  The district court denied appellant's motion to suppress evidence discovered during a vehicle search after determining that appellant failed to show that he had a reasonable expectation of privacy in the interior of the vehicle he was driving.  Because once the deputy's initial suspicions of criminal activity were dispelled, he lacked any reasonable, articulable suspicion to expand the scope of the stop, we reverse the district court's order denying appellant's motion to suppress.

FACTS

            On November 13, 2001, at approximately 3:55 p.m., while traveling along a highway, Olmsted County Deputy Rich Carmack observed an approaching vehicle drift over the centerline.  Carmack testified that he saw that the driver, later identified as appellant, "had both his hands up to his mouth and appeared to be lighting what [Carmack] thought to be a pipe of some sort."  Although Carmack did not actually see appellant holding a marijuana pipe, he believed that appellant had such a pipe because of "the fashion in how [appellant] was lighting it." 

            After passing the vehicle, Carmack made a U-turn and stopped the vehicle.  Appellant gave the deputy his driver's license but was unable to provide proof of insurance.  Carmack acknowledged that he did not see a pipe or any marijuana and that appellant was not holding anything in his hands.  Carmack further admitted that he did not smell any burning marijuana and that when asked, appellant denied that he had been smoking or drinking anything. 

            Carmack returned to his squad car and accessed appellant's driving record, and discovered that appellant's license was valid, but his driving record indicated that in 1997 his license had been revoked for "sold/possessed controlled sub[stance]."  Carmack returned to the vehicle to give appellant "a verbal warning for crossing the centerline." 

            At that point, Carmack asked appellant for consent to search the vehicle.  Appellant told Carmack that he could not give permission because the vehicle was not his.  Appellant said that the car belonged to Otto Baron, but was unable to provide Baron's phone number.  Carmack checked directory assistance, but was unable to locate Baron's number.  Carmack then "conveyed to [appellant] that [Carmack] believed [appellant] was trying to hide something and that [Carmack] intended to get a drug dog just to walk the perimeter of the vehicle."  According to Carmack, he "explicitly explained" to appellant that he was "not trying to threaten" him.  Carmack then "[j]ust talked with" appellant in an attempt to get him to consent, and after "five or ten minutes," appellant agreed to allow Carmack to search the vehicle.

            Carmack ordered appellant out of the vehicle and pat-searched him, finding nothing.  When he searched the vehicle, Carmack found a zipped fanny pack on the front passenger seat.  Carmack testified that "[appellant] said it wasn't his and . . . [that] he didn't know how it got in the vehicle."  Appellant did not object to a search of the fanny pack.  When he opened the pack, Carmack found a "one-hitter," two small plastic bags containing what appeared to be marijuana, and some prescription pill bottles with appellant's name on them, one of which contained two pills later identified as morphine. 

            Carmack arrested appellant, handcuffed him, and placed him in the back seat of the squad car.  The deputy then continued searching the car and located a gray metal box underneath the passenger seat.  The box contained vials of a yellowish liquid, later determined to be methadone.  A follow-up investigation revealed that appellant had a valid prescription for the methadone. 

            After searching the car, Carmack read appellant his Miranda rights and then interviewed him.  According to Carmack, after the tape recorder was no longer running, he "commented or mentioned" to appellant that he thought that appellant was smoking marijuana and that appellant admitted doing so.   

            Appellant was cited for possessing marijuana and released at the scene.  Based on the discovery of the two morphine pills, appellant was later charged with fifth-degree controlled substance crime under Minn. Stat. § 152.025, subds. 2(1), 3(b) (2000). 

            At the omnibus hearing, appellant argued that the initial stop was improper and that, even if the stop was valid, appellant was unlawfully detained, thus tainting any consent to search the vehicle.  The district court denied appellant's suppression motion, ruling that appellant "did not have an expectation of privacy in the vehicle that society is willing to recognize as reasonable."

D E C I S I O N

            The legality of an investigative stop is a question of law, which we review de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  When reviewing motions to suppress, we accept the district court's findings of fact unless the findings are clearly erroneous, giving due weight to the inferences drawn from those facts by the district court.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

            The district court denied appellant's motion to suppress on the ground that appellant failed to present sufficient evidence to establish that he had a "reasonable expectation of privacy in the interior of the vehicle."[1]  We do not reach this issue because the controlling issue is whether the initial stop and the continuing detention of appellant's person was constitutionally valid.  The initial stop and the extended seizure of his person is the threshold constitutional issue, not the ultimate search of the vehicle and its contents.  See State v. Miller, 659 N.W.2d 275, 282 (Minn. App. 2003) (noting that passenger had standing to challenge search with drug-detection dog and his continued detention as unrelated to initial stop).  Once a seizure or search becomes "unreasonable" under the constitution, any subsequent "fruits" must be suppressed.  See State v. Bergerson, 659 N.W.2d 791, 797-98 (Minn. App. 2003) (explaining and applying "fruit of poisonous tree" doctrine).

            Investigative stops are permitted under the constitution if there is a particularized basis for suspecting criminal activity.  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  The deputy here testified at the omnibus hearing that he observed appellant's vehicle drift over the centerline; he also testified that he saw that appellant "had both his hands up to his mouth and appeared to be lighting what [the officer] thought to be a pipe of some sort."  The deputy thus had a legitimate reason to stop appellant's vehicle.

            Once the vehicle was stopped, however, "the scope and duration of the . . . investigation must be limited to the justification for the stop."  Fort, 660 N.W.2d at 418.  Any "expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity."  Id. at 419.  An investigative stop must be temporary and cannot last longer than is necessary to achieve the purpose of the stop.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).

            Here, appellant gave the deputy his driver's license but was unable to provide proof of insurance.  The deputy acknowledged that he did not see a pipe or any marijuana and that appellant was not holding anything in his hands.  The deputy further admitted that he did not smell any burning marijuana and that, when asked, appellant denied that he had been smoking or drinking anything.  The deputy agreed that appellant told him that he had been using a cell phone.  Finally, appellant's driving record indicated that his license was valid.  The deputy testified that he went back to the vehicle to "give [appellant] a verbal warning for crossing the centerline."

            Once the deputy's initial suspicions were dispelled, the stop should have ended.  Rather than giving appellant a warning and allowing him to leave, however, the deputy continued to detain and question him.[2]  Because the deputy lacked any objective reasonable suspicion to prolong the investigative stop once his initial suspicions were allayed, the evidence discovered during the search of the vehicle was the fruit of an unlawful search and must be suppressed.  Fort, 660 N.W.2d at 419 (holding that in absence of reasonable, articulable suspicion, consent to search obtained by exploitation of routine traffic stop that exceeds scope of stop's underlying justification is invalid).

            We therefore reverse the district court's pretrial order denying appellant's motion to suppress.

Reversed.

HALBROOKS, Judge (dissenting)

I respectfully dissent.  Determining whether evidence must be suppressed based on a violation of the Fourth Amendment involves a two-step analysis.  See State v. Colosimo, 669 N.W.2d 1, 5 (Minn. 2003) (stating that if a defendant's "expectation of privacy was not reasonable, the Fourth Amendment's prohibition on ‘unreasonable searches' is not implicated").  First, we must decide whether appellant established a reasonable expectation of privacy in the place or thing searched.[3]  See id.  Only if such an expectation was established do we move to the second step: determining whether the search in question was so "unreasonable" as to violate the Fourth Amendment.  Id.

It is well established that Fourth Amendment rights are personal and may not be vicariously asserted.  See, e.g., United States v. Payner, 447 U.S. 727, 731, 100 S. Ct. 2439, 2444 (1980) (stating that a person's "Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party") (emphasis in original); United States v. Wright, 826 F.2d 938, 944 (10th Cir. 1987) (stating that "it is not grounds for suppression [of evidence allegedly seized in violation of the Fourth Amendment] at all that the reasonable expectation of privacy of a third party was even flagrantly violated").  Moreover, the party seeking suppression of evidence bears the burden of demonstrating that his or her personal Fourth Amendment rights were violated.  State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990) (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 428 (1978)), review denied (Minn. Sept. 14, 1990).

A search cannot violate a person's Fourth Amendment rights unless he or she has a legitimate expectation of privacy in the area or items searched.  Rakas, 439 U.S. at 143, 99 S. Ct. at 430.  "A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable."  Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 1687 (1990) (quotation omitted).  Although an ownership interest is not required, "mere presence" on the searched premises is insufficient to create a reasonable expectation of privacy.  See Rakas, 439 U.S. at 143, 99 S. Ct. at 430 (stating that the "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place"); cf. Minnesota v. Carter, 525 U.S. 83, 89, 119 S. Ct. 469, 473 (1998) (noting that "one who is merely present [in a home] with the consent of the householder may not [claim the protection of the Fourth Amendment]"). 

Resolving the issue of whether a person has a legitimate expectation of privacy in the place searched or object seized involves a two-part test:

A court must determine: (1) whether the petitioner has asserted a subjective expectation of privacy, and (2) whether the petitioner's subjective expectation is objectively reasonable.  The first part of the test is a question of fact that we review under a clearly erroneous standard, while the second part is a question of law, dictating de novo review.

 

United States v. Kiser, 948 F.2d 418, 423 (8th Cir. 1991) (citation omitted).

In this case, it is clear that appellant has asserted a subjective expectation of privacy in the car that he was driving.[4]  The question is therefore whether appellant's subjective expectation of privacy is one that society is prepared to recognize as reasonable.  In denying appellant's motion to suppress, the district court noted that

[appellant] claims he was in possession of the vehicle with the owner's permission, yet did not know how to contact the owner to verify or negate this assertion.  It is unknown to the [district] court if this was a single occurrence, or if [appellant] had had the owner's permission to drive the vehicle on other occasions.  Furthermore, it is unknown whether [appellant] and the owner had a personal or business relationship.  These factors contribute to the determination of whether [appellant's] expectation of privacy in the vehicle was reasonable. 

 

Because of the "scarcity of information regarding the circumstances of [appellant's] use of Mr. Baron's vehicle," the district court concluded that appellant had not established that he had a reasonable expectation of privacy in the interior of the car. 

As previously noted, appellant bears the burden of establishing that he had a "personal and legitimate expectation of privacy."  Robinson, 458 N.W.2d at 423.  In Robinson, we held that a defendant had no expectation of privacy in a car when he drove it on one occasion for the owner's sole benefit and had no possessory interest in the car or any items contained in it.  Id. at 424.  Appellant had the opportunity to testify or present other evidence at the omnibus hearing, yet he chose not to do so.  As the district court noted in denying appellant's motion to reconsider, appellant "has not offered any evidence to support" his assertion of a privacy interest in the vehicle.  Accordingly, he has not met his burden of distinguishing Robinson and establishing the existence of a "personal and legitimate expectation of privacy."  Id. at 423.  On this record, the district court did not err by denying appellant's motion to suppress.  Accordingly, I would not reach the issue of whether Deputy Carmack had a reasonable, articulable suspicion to expand the scope of the traffic stop.[5] 

[1]  The dissent similarly focuses on whether appellant had an expectation of privacy in the vehicle so as to allow him to challenge its search.  But appellant had a valid and constitutionally protected expectation of privacy in his person, so as to keep him free of unreasonable searches and seizures.  See 6 Wayne R. LaFave, Search & Seizure § 11.3(e), at 194 (2004) (recognizing that Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978), does not prohibit passenger from challenging police conduct that intrudes upon constitutional protections against unreasonable seizure of his person).  Here, when the deputy exceeded the scope and duration of the initial stop, the seizure of appellant's person became unreasonable and violated the constitution.  Thus, this case is wholly unlike the cases cited by the dissent, including State v. Colosimo, 669 N.W.2d 1, 4 (Minn. 2003), where the supreme court determined that no seizure occurred because the conservation officer merely walked up to the boat parked on a trailer at a boat launch and started conversing with the defendant, or State v. Robinson, 458 N.W.2d 421, 422-23 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990), where the search took place after the defendant was already validly under arrest and removed from the vehicle.

[2] Even the district court was "extremely troubled" by the techniques employed by Carmack to gain appellant's consent for the search and by the "coercive nature of the search involved in this case."  "[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.  For, no matter how subtly the coercion was applied, the resulting ‘consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed."  Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048 (1973) (emphasis added).  While Carmack claimed that he was "not trying to threaten" appellant, his lengthy detention of appellant, combined with his statement to appellant that he believed that appellant was "hiding something" and that he was going to call in a canine unit, raises questions as to the validity of appellant's consent.  Because consent for this search was given only after the seizure was unlawfully prolonged, however, we need not address this issue.  See George, 557 N.W.2d at 581.

[3] Appellant argues that "the question is not whether appellant had an expectation of privacy in the interior of the car[,] but instead whether he had standing to challenge the stop of his person and his . . . continued detention."  But as the Supreme Court has stated, the proper approach is to address the scope of a defendant's Fourth Amendment rights directly, rather than through the lens of standing.  Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S. Ct. 421, 428 (1978); see also Minnesota v. Carter, 525 U.S. 83, 87, 119 S. Ct. 469, 472 (1998) (noting that the Court in Rakas "expressly rejected" analyzing Fourth Amendment rights "under the rubric of ‘standing' doctrine"); State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990) (citing Rakas and stating that in cases such as this, "correct analysis" focuses on the extent of a particular defendant's Fourth Amendment rights rather than on traditional standing principles), review denied (Minn. Sept. 14, 1990).

[4] The district court also accepted that appellant had asserted an expectation of privacy. 

[5] Like the majority, I have grave concerns about the tactics employed by Deputy Carmack.  His actions raise the very real possibility that appellant's consent was not truly voluntary, but given under duress.  Nonetheless, we are constrained by Robinson and cannot reach the Fourth Amendment issue because appellant has not met his burden of distinguishing that case with respect to the expectation of privacy.