State of Minnesota, Appellant, vs. Deanna Lea Miner, Respondent.

State of Minnesota, Appellant, vs. Deanna Lea Miner, Respondent. A06-649, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and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

A06-649

 

State of Minnesota,
Appellant,
 
vs.
 
Deanna Lea Miner,
Respondent.

 

Filed August 22, 2006

Reversed

Stoneburner, Judge

 

Scott County District Court

File No. CR0518430

 

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Government Center JC340 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)

 

David B. Boyce, Ramstad, Kennedy & Boyce, 525 First Avenue East, Shakopee, MN 55379 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            The state appeals an order suppressing evidence, arguing that seizure of a "crack pipe" was valid under the "plain feel" exception and that the search that led to discovery of the pipe was also justified as incident to arrest.  Because the record supports the validity of the search and seizure of the pipe as incident to arrest, we reverse and remand.

FACTS

 

            Near midnight, Jordan police officers received a dispatch reporting a motor-vehicle theft in progress.  The dispatcher stated that the stolen vehicle was a black Volkswagen Golf driven by Kevin Dugal and that respondent Deanna Lea Miner was involved in the theft and was following Dugal in a rusty Chevrolet Suburban.  The dispatcher also stated that Dugal and Miner had been using crack all day. 

            Within approximately 15 minutes after receiving this dispatch, police officer Brian Stolt located the Golf and the rusty Suburban parked on the side of the road.  Dugal was standing by the Suburban, and Miner was in the Golf.  Stolt drew his handgun and ordered Dugal and Miner away from the vehicles and onto their knees.  Dugal and Miner complied.

            Officer John Wamsley arrived and pat-searched Miner's outer clothing for officer safety.  Wamsley felt an object that he later testified he immediately recognized as "consistent with" an illegal-narcotics pipe.  Wamsley seized the pipe, which had a Brillo pad inside it with what appeared to be controlled-substance residue.  Subsequent testing of the pipe and Brillo pad revealed a trace amount of cocaine.  Miner was taken into custody and subsequently charged with controlled-substance crime in the fifth degree and petty misdemeanor possession of drug paraphernalia.  After the arrest, the complaining witness, Dugal's daughter, declined to press charges.

            The district court granted Miner's motion to suppress evidence of the pipe, concluding that although there was reasonable suspicion for a patdown for weapons, discovery of the pipe went beyond the scope of a weapons search.  The district court found that there was no evidence of suspicion that Miner was under the influence of a controlled substance or in control of a vehicle, that Wamsley "did not testify as to his immediate recognition of this item as being illegal contraband," and that the totality of the circumstances would not support a "strong and honest suspicion" that Miner had committed a crime.  This appeal by the state followed.

D E C I S I O N

 

            On appeal from a pretrial suppression order, the state must show that the suppression order will have a critical impact on the state's ability to prosecute the defendant and that the order constituted error.  State v. McGrath, 706 N.W.2d 532, 538-39 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006).  It is not disputed that suppression of the evidence precludes the state from being able to convict Miner of the charges against her; therefore, the state has met the critical-impact test.

            "Where the facts are not in dispute, the issue of whether the district court's pretrial order is erroneous is a question of law, subject to de novo review."  State v. Volkman,675 N.W.2d 337, 341 (Minn. App. 2004).  "A search incident to arrest is valid by itself and does not require any additional justification."  State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).  "The search ‘incident' to arrest has been extended to include a search ‘precedent' to arrest if the officer has probable cause to arrest at the time of the search."  State v. Bauman, 586 N.W.2d 416, 420 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  In Bauman, we stated that a more descriptive name for such a search is "search incident to probable cause to arrest" because "[t]he focus is not on the arrest, but on whether probable cause to arrest exists before a search." Id. at 421.

            In this case, the district court erred by concluding that the totality of the circumstances did not provide probable cause to believe that Miner had committed a crime.

[Courts] apply an objective standard for determining the lawfulness of an arrest or a search by taking into account the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed, and if the objective standard is met, we will not suppress evidence or invalidate an arrest even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.

 

State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998) (quotation omitted). 

            "The test of probable cause to arrest is whether the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed."  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (quotation omitted).  The police officers knew from dispatch that there was a report that (1) Dugal had stolen a VW Golf; (2) Miner was involved; (3) Dugal was driving the VW, and Miner was driving a rusty Suburban; and (4) both had been using crack all day.  When Stolt located the vehicles, Miner was sitting in the stolen car. 

            Under the totality of the circumstances, a person of ordinary care and prudence could entertain an honest and strong suspicion that Miner was involved in felony car theft giving rise to probable cause for arrest.  The fact that the complaining witness later declined to press charges and did not directly tell the officers, when they interviewed her after the arrest, that Miner was involved in the theft is irrelevant to the circumstances that existed at the time of the arrest.  The audio recording of the complaining witness's 911 call is largely unintelligible, but several times the complaining witness uses the pronoun "they," and she can be heard giving Miner's name and the description of the Suburban.  It is undisputed that the dispatcher told the officers that Miner was involved in the theft.  The district court erred by suppressing evidence seized incident to a lawful arrest. 

            Because we conclude that the search and seizure was justified as incident to arrest, we do not reach the state's argument that the search and seizure was also justified under the "plain feel" doctrine.

            Reversed.