State of Minnesota, Respondent, vs. Lizabeth Ann Skarja, Appellant.

State of Minnesota, Respondent, vs. Lizabeth Ann Skarja, Appellant. A05-1234, Court of Appeals Unpublished, July 3, 2006.

This opinion will be unpublished and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

A05-1234

 

State of Minnesota,

Respondent,

 

vs.

 

 Lizabeth Ann Skarja,

Appellant.

  Filed July 3, 2006

Affirmed

Randall, Judge

 

St. Louis County District Court

File No. K2-04-102079

 

 

Michael A. Hatch, State Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, Minnesota 55802 (for respondent); and

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant).

 

 

            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

This is an appeal from a conviction of fifth-degree controlled substance crime.  Appellant argues that police who stopped her car to see if her passenger was a man they were seeking lacked articulable suspicion to stop the car.  She argues they stopped her simply because her car matched a general description of the car driven by the suspect, whom they only suspected of intending to commit a future crime.  Appellant also argues that police lacked any articulable suspicion to continue the stop after they learned appellant's passenger was not the suspect.  Thus, she argues their discovery of the warrant for her arrest was the fruit of the illegal stop.  We affirm.

FACTS

While on duty, St. Louis County Sheriff Deputy Nicholas Toewe (Toewe) received a telephone call from a woman who informed Toewe that her ex-husband was en route to her residence.  The woman feared for her safety because of past violence and threats from her ex-husband.  The woman informed Toewe that her ex-husband was traveling in an "older black car" and that she "didn't know who he was going to be with."  The woman gave no description of her ex-husband or information about who may be with him.  Toewe did not know the ex-husband nor had he ever met him.    

            Approximately two hours after the telephone call, Toewe conducted a stop of appellant Lizabeth Skarja's 1991 black car.  Appellant's car was driving towards and was five blocks from the address of the woman's house who had called earlier.  Toewe noticed a female driver, appellant, and a male passenger in the front seat.  Toewe testified that he stopped the vehicle simply to investigate whether the ex-husband might be in the vehicle.  There was nothing wrong with the vehicle nor had the driver committed any traffic violation.                 

            After Toewe approached the vehicle, appellant inquired as to why she had been stopped and was told by Toewe that he wanted to speak with her passenger.  Toewe testified that if the passenger was in fact the ex-husband, his intent was only to warn the ex-husband not to go to his ex-wife's home.  Toewe approached the passenger's side of the car and asked the passenger for identification.  The passenger presented identification and Toewe had no reason to believe that the passenger was not the individual on the identification card.   Toewe returned to his squad car to conduct a status check on the passenger.  He determined the passenger was not the ex-husband.   

After contacting dispatch with the passenger's information and while waiting for information on the passenger, Toewe was contacted by radio by Deputy Aaron Nevala (Nevala), who requested that Toewe telephone him.  Toewe telephoned Nevala, who told Toewe that the female with the passenger was most likely Liz Skarja, whom he had just arrested a week earlier.  Nevala told Toewe that when he arrested appellant, she had provided him with identification in the name of Terrina Shoquist.  Nevala also opined that appellant might have in her possession stolen checks in Shoquist's name.    

            After speaking with Nevala, Toewe approached the car and asked appellant for identification.  Appellant presented a Minnesota driver's license with the name Terrina Shoquist.  Toewe next asked appellant why her face did not match the picture on the license.  Appellant stated that she had changed her hair color.  Toewe next asked appellant to recite the address on the license.  Appellant could not but presented a check book containing checks with the name Terrina Shoquist.  Based on the information from Nevala and a flier he had seen a week earlier identifying appellant as having an outstanding warrant, Toewe arrested appellant.   

            Subsequent to appellant's arrest, Toewe conducted a search of appellant's vehicle, finding methamphetamine.  Appellant was charged with (1) controlled substance crime in the fifth-degree in violation of Minn. Stat. § 152.025, subd. 2(1); (2) giving a false name to a peace officer in violation of Minn. Stat. § 609.506, subd. 2; and (3) driving after revocation in violation of Minn. Stat. § 171.24, subd. 2.   

Appellant contested the vehicular stop and the length of detention, and sought suppression of the methamphetamine as a result of an illegal search and seizure.  After a contested omnibus hearing, the district court found that Toewe's traffic stop violated the Fourth Amendment to the United States and Minnesota constitutions but that appellant's subsequent arrest was constitutional based on appellant's warrant for a felony arrest.  The district court concluded that any evidence obtained was not fruit of the poisonous tree because it had been purged of any taint.     

Appellant entered Lothenbach pleas on the three charges and was convicted by the district court.  Appellant received the presumptive sentence of twenty-four months for the fifth-degree possession charge, and the two remaining charges were dismissed.  This appeal followed.      

D E C I S I O N

I.

The state concedes that the initial stop of appellant's vehicle was not based on a reasonable and articulable suspicion of criminal activity.  Based on the state's appreciated candor, the district court found that Toewe's traffic stop of appellant was unconstitutional because it violated the Fourth Amendment to the United States and Minnesota constitutions. 

In determining the propriety of investigative stops, this court "review[s] the events surrounding the stop and consider[s] the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop."  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)).  The factual basis required to support a stop is minimal.  See Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  Officers, however, cannot stop a person based on a mere whim or hunch.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  But they may make inferences based on their training and experience that would otherwise escape an untrained individual.  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  This court must look to the totality of the circumstances relating to Deputy Toewe's stop and arrest to determine if his actions were based on a reasonable and articulable suspicion of illegal conduct.  See id.; see also State v. Askertooth, 681 N.W.2d 353, 364 (Minn. 2004) (quoting Terry v. Ohio, 392 U.S. at 21-22, 88 S. Ct. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)) (stating that the state must "satisfy an objective test:  ‘would the facts available to the officer at the moment of the seizure . . . warrant a man of reasonable caution in the belief that the action taken was appropriate.'").   

We conclude that the initial stop of appellant's vehicle was not an "articulable suspicion" stop, but a stop based on legitimate police work with the intention of hoping to prevent a future criminal domestic incident.[1]  A similar scenario would be a state highway patrolman stopping cars at random (no articulable suspicion of any criminal act involved) to warn motorists that a bridge ahead had washed out by heavy rain and to caution them to turn around and find an alternate safe road.  There is no question that well-intentioned random stops are not automatically valid.  See Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 186-87 (Minn. 1994) (stating that it is "quite possible that a substantial segment of our society would suffer the short term intrusion of a sobriety checkpoint stop
in order to remove drunken drivers from the road.  ‘But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis'" (citing Mich. Dep't of State Police v. Sitz, 496 U.S. 444 at 459 (Brennan, J., dissenting)). 

Here, the law enforcement officer was, at least, in a good place for legitimate and verifiable reasons.  Thus, our analysis does not stop at the "stop."  At that point, for instance, the "plain sight" rule is in effect and people in that car do not have immunity to commit new crimes or attempted crimes or give off visible signs of criminal activity, even though the initial stop was invalid for criminal purposes.  We analyze the Fourth Amendment constitutional issues in a criminal case from a different perspective than the legitimate civic duties of law enforcement personnel.

Appellant is correct about the state of the law.  The United States and Minnesota constitutions protect citizens from unreasonable searches and seizures.  U.S. Const. Amend. IV; Minn. Const. Art. I, § 10.  Evidence obtained as a result of an illegal seizure is inadmissible to support a conviction.  State v. Harris, 590 N.W.2d 90, 97 (Minn. 1999).  It is well established that "evidence discovered by exploiting previous illegal conduct is inadmissible."  State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)), review denied (Minn. Dec. 11, 2001).

The district court, however, found that while Toewe was conducting a status check on the passenger, he was notified and realized that an outstanding warrant for appellant's arrest existed.  Once Toewe returned to the vehicle to ascertain appellant's identification, appellant identified herself with a false name and date of birth, using another person's driver's license. 

Appellant does not dispute the district court's findings that she falsely identified herself.  Appellant argues that the district court impermissibly relied on the fact that she falsely identified herself because she claims her false identification only occurred because she was stopped unlawfully.  The state argues that, although it conceded the traffic stop was unlawful, appellant committed a new and distinct crime after the stop by giving Toewe a false name and misrepresenting herself by presenting someone else's driver license.   The state argues appellant's intentional misrepresentation is a sufficient intervening circumstance that purges the taint of an unlawful stop, if one occurred.  We agree with the district court and respondent that there were sufficient independent intervening circumstances that allowed law enforcement to proceed further after the initial stop (invalid) revealed nothing suspicious about the passenger.

Purely by happenstance, Toewe received credible information from another deputy that appellant might have stolen checks in her possession.  We conclude that this information gave Toewe the right to approach appellant and ask for identification; that led to the discovery of the stolen checkbook.  Appellant could have been arrested by Toewe on her outstanding warrant, and the discovery of the stolen checkbook.  Once Toewe arrested appellant, he initiated a search incident to the arrest which produced the methamphetamine.  The district court found that Toewe discovered the methamphetamine after arresting appellant on her outstanding warrant.  It found that any evidence discovered as a result of the arrest was admissible because the search was incident to appellant's (legitimate) arrest.  We agree. 

Although a fine line exists, we conclude that the district court correctly found that there were in effect two separate stops and brief detentions.  The initial stop, based upon the information regarding the ex-husband, led to no charges.  The second stop, which occurred when Toewe received additional information from another deputy that appellant might be in possession of contraband, was permissible.  This stop was based on credible information from a fellow deputy and knowledge of appellant's outstanding warrant.  The basis for appellant's arrest was distinguishable from and independent of the initial traffic stop.  Appellant's arrest was a result of the information received from Nevala, not from the initial traffic stop.  Once Toewe confirmed that appellant's passenger was not who he was looking for, new and distinct information was received by Toewe and thus began his investigation into appellant's identity.  Toewe did not exploit or purposely inquire about appellant's identity until receiving information from Nevala.  When Nevala learned of the passenger's name, he knew that appellant associated with the passenger and reminded Toewe that if the driver was in fact appellant, she had an outstanding warrant.  It was after receiving this information that Toewe questioned appellant and recognized her and her distinctive neck tattoo after recalling a police flyer he had seen regarding appellant's outstanding warrant.             

After identifying appellant as having an outstanding warrant, Toewe arrested and searched appellant and her vehicle, discovering the methamphetamine.  The district court correctly found that appellant's arrest was valid as a result of appellant's outstanding warrant and that the search was lawful as a search incident to an arrest.  See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981) (holding that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."); see also State v. Liljedahl, 327 N.W.2d 27, 30 (Minn. 1982). 

             Affirmed.

[1]  Appellant does not raise the issue nor does anything in the record indicate that, in any way, the stop was pretextual for purposes of checking out a person or persons who were suspected of harboring contraband.