State of Minnesota, Respondent, vs. Dirk Alan Hartwig, Appellant.

State of Minnesota, Respondent, vs. Dirk Alan Hartwig, Appellant. A05-1480, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A05-1480

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dirk Alan Hartwig,

Appellant.

 

 

Filed November 14, 2006

Affirmed; motion granted

Klaphake, Judge

 

Wabasha County District Court

File No. K4-04-203

 

 

Mike Hatch, Attorney General, Manuel J. Cervantes, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Nordstrom, Wabasha County Attorney, Wabasha County Courthouse, 625 Jefferson Avenue, Wabasha, MN  55981 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Dirk Alan Hartwig challenges his conviction and sentence for first- and second-degree controlled substance offenses for manufacturing and possession of methamphetamine, arguing that the district court erred by refusing to suppress evidence found during a warrantless search and by treating the convictions as two separate behavioral incidents for sentencing purposes.

            Because exigent circumstances existed to permit a warrantless search, we affirm the district court's decision refusing to suppress the evidence.  Because the offenses of which appellant was convicted were not part of a continuous and uninterrupted course of conduct or motivated by a single criminal objective, we affirm appellant's sentence.

D E C I S I O N

            When the facts are not in dispute, the district court's suppression decision is a question of law; the appellate court independently reviews the facts and makes a de novo determination of whether the evidence should be suppressed.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

            Absent either consent or probable cause combined with exigent circumstances, warrantless searches of a residence are per se unreasonable under the United States and Minnesota Constitutions.  Id. at 222; see U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Neither party asserted consent in this matter and appellant does not challenge the district court's finding of probable cause; rather, he focuses on whether exigent circumstances existed that would excuse police failure to obtain a search warrant.

            There are two tests to establish exigent circumstances:  (1) the single factor test; and (2) the totality-of-the-circumstances test.  State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).  The following single factors, standing alone, are considered to support exigent circumstances: (1) hot pursuit; (2) imminent destruction or removal of evidence; (3) protection of human life; (4) escape of the suspect; and (5) fire.  Id.  Based on the record before us, no single factor justified a warrantless entry into appellant's trailer home.

            The totality-of-the-circumstances test involves application of the following factors: (1) whether a grave or violent offense is involved; (2) whether the suspect is reasonably believed to be armed; (3) whether there is strong probable cause; (4) whether police have strong reason to believe the suspect is on the premises; (5) whether it is likely the suspect will escape if not immediately apprehended; and (6) whether police made a peaceable entry.  Id. (citing Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)). 

            The record here supports four of the Dorman factors: (1) manufacturing methamphetamine is considered a grave offense; (2) strong evidence connected appellant to the offense, based on the information deputies received from the confidential reliable informant (CRI) that "Dirk was cooking meth" and the strong odor associated with meth manufacture that deputies smelled on the premises; (3) deputies had good reason to believe appellant was on the premises, because of co-defendant Julie Miller's evasive conduct, the CRI's information, the noises from the appellant's trailer, and the odor; and (4) deputies made peaceable entry to the residence.  Not all of the Dorman factors need be present in order to justify a warrantless search.  State v. Johnson, 689 N.W.2d 247, 252 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). 

            The district court must also consider the time it would take to obtain a warrant and whether the arrest was planned in advance or developed in the "field."  In re Welfare of D.A.G., 484 N.W.2d 787, 791 (Minn. 1992); see also Gray, 456 N.W.2d at 257 (acknowledging difficulty of obtaining warrants in the middle of the night).  While deputies here may have had time and opportunity to obtain a warrant, the record indicates that they fortuitously discovered an active session of meth manufacture, suggesting that developments unfolded while they were in the field. 

            Based on our review of the record, we conclude that the district court did not err by refusing to suppress evidence recovered after a warrantless search made under exigent circumstances.

            Sentencing

            Minn. Stat. § 609.035, subd. 1 (2004), states that "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses."  As interpreted, this means that a court may impose only one sentence when multiple offenses are part of a single behavioral incident.  State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000).  In order to determine if multiple offenses are part of a single behavioral incident, the court considers factors of time and place, and whether the offenses were motivated by a single criminal objective.  Id.  The court considers whether the offenses "(1) arose from a continuous and uninterrupted course of conduct; (2) occurred at substantially the same time and place; and (3) manifested an indivisible state of mind."  State v. Heath, 685 N.W.2d 48, 61 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  The district court's determination of whether multiple offenses constitute a single behavioral act is a factual determination that we will not reverse on appeal unless clearly erroneous.  Heath, 685 N.W.2d at 61.  The state has the burden of proving that the offenses were not part of a single course of conduct.  State v. Williams, 608 N.W.2d 837, 842 (Minn. 2000).

            Here, appellant was charged with manufacturing methamphetamine, but he was also charged with second-degree possession of more than six grams, because deputies found a bag of methamphetamine within his reach.  Possession of methamphetamine is not necessarily a lesser included offense of its manufacture.  State v. Carr, 692 N.W.2d 98, 102 (Minn. App. 2005).  In Carr, the possession charge was based on the partly manufactured methamphetamine, which was still in its liquid form; this court concluded that the only reason the defendant possessed it was in order to complete the manufacturing process, making the two charges part of a single criminal objective.  Id.  On the other hand, in Heath, this court concluded that conspiracy to manufacture and aiding and abetting possession with intent to sell were two separate behavioral incidents because the conspiracy was complete when the participants agreed to manufacture and took the first overt act in furtherance of manufacture, but that the second offense occurred later, when the methamphetamine had been manufactured and the conspirators had divided it among themselves in order to sell it.  Heath, 685 N.W.2d at 61.

            Strictly speaking, the two offenses here are not tied by time or a single criminal objective.  Appellant was in the process of manufacturing methamphetamine when the search occurred, but he already possessed usable methamphetamine unrelated to the methamphetamine that he was manufacturing.  Although appellant argues that the finished methamphetamine could well be related to the manufacturing process, courts are cautioned against interpreting the criminal objective too broadly.  See Soto, 562 N.W.2d at 304.   

            The record supports the court's determination that the offenses were not motivated by a single criminal objective or part of an uninterrupted course of conduct.  The district court therefore did not err by sentencing appellant for both convictions.

            Appellant's Pro Se Issues

            Appellant's pro se supplemental brief raises several factual claims that he asserts would change the result of the trial; these factual claims were not raised at trial.  This court may not consider evidence outside the record.  State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).  Further, appellant provides no legal authority or argument to support his claims, which we therefore deem to be waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).

            Motion to Strike

            Appellant moved to strike portions of the state's brief that cite trial testimony in support of the district court's omnibus ruling refusing to suppress evidence recovered during the warrantless search of appellant's trailer.  The district court based its omnibus ruling solely on police reports and related documentation; no testimony was taken at the omnibus hearing.  We therefore grant appellant's motion to strike those parts of the state's brief that rely on trial testimony, as being beyond the scope of the evidence considered by the district court in making its suppression decision.

            Affirmed; motion granted.