State of Minnesota, Respondent, vs. Jeremy James Boles, Appellant.

State of Minnesota, Respondent, vs. Jeremy James Boles, Appellant. A06-1634, Court of Appeals Unpublished Decision, December 18, 2007.

 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1634
 
State of Minnesota,
Respondent,
 
vs.
 
Jeremy James Boles,
Appellant.

 

Filed December 18, 2007

Reversed

Shumaker, Judge

 

Dakota County District Court

File No. K5-04-3613

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

 

 

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            On appeal from his conviction of second-degree controlled substance offense, appellant contends the district court erred in denying his motion to suppress evidence of controlled substance found in his vehicle.  Because the warrantless search of the vehicle does not fall within an exception to the warrant requirement, we conclude the evidence of controlled substance found in the vehicle should have been suppressed.  Therefore, we reverse. 

FACTS

            Appellant Jeremy James Boles contends that the district court erred in denying his motion to suppress evidence of cocaine found during a warrantless search of his motor vehicle.  The dispositive facts are undisputed.

            Boles lived with his girlfriend, M.L.V., in a house in Eagan.  At about 3:00 a.m. on November 8, 2004, M.L.V. called her brother for help, saying Boles was assaulting her with a 2x4.  M.L.V.'s brother relayed that information to the police, and Officers Nelson and Rezny went to investigate.

            When they arrived at the address of the alleged assault, they saw a white SUV parked in the driveway.  M.L.V. was sitting in the driver's seat; the driver's side door was open; and Boles was standing near the open door.  Boles and M.L.V. were arguing loudly.  As the officers approached, Boles turned to look at them and then turned back away from them and made a gesture which the officers characterized as being one of throwing something inside the car.  The officers admitted that they saw nothing in Boles's hands and that they did not actually see him throw anything.

            Nelson escorted Boles to the rear of the SUV to talk to him and soon placed him in the back seat of the squad car.  Rezny, and Officer Helgerson who had arrived to assist, went into the house with M.L.V.  M.L.V. indicated that the only other person in the house was her young child.  Helgerson then did a "protective search," during which he found the child sleeping upstairs.  He also went into the basement where he saw a white substance on a mirror.  Having learned that the alleged assault occurred in the basement, Nelson joined Helgerson there to look for evidence of the assault.  He observed a broken wooden bench, a substance on a mirror that appeared to be lines of cocaine, and various items he thought were drug paraphernalia.

            Helgerson remained in the basement as Nelson went outside to look into the SUV.  He saw nothing on a cursory inspection, and he returned to the house and asked M.L.V. what Boles had thrown into the vehicle.  She stated that she was not aware that Boles had thrown anything.  Nelson and Rezny searched the SUV and found cocaine in the passenger area.  The officers asked M.L.V. about drugs, and she acknowledged that there were other controlled substances on the premises.  M.L.V. then consented to a search of the house.

            In addition to the cocaine the officers found in the basement and in the SUV, they found cocaine in the bathroom and hallucinogenic mushrooms in the squad car where Boles was sitting.  Boles moved to suppress evidence of all the drugs.  Ruling that the officers violated Boles's constitutional rights only by uncovering cocaine in the basement, the court granted the motion to suppress that evidence, but denied the motion as to all other evidence.   Boles challenges the court's ruling only as to the cocaine in the SUV.  We note that the state has not filed a notice of review as to the court's order granting the motion to suppress the cocaine found in the basement.

            After a Lothenbach proceeding, the court found Boles guilty of the second-degree controlled substance offense and dismissed the domestic-assault charge.

D E C I S I O N

            "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  "[W]hen the facts are not in dispute, a reviewing court must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure."  Id.              

            The challenge on appeal involves cocaine that the police seized from Boles's motor vehicle in a search without a warrant.  The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures.  State v. Burbach, 706 N.W.2d 484, 487-88 (Minn. 2005).  "Warrantless searches ‘are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.'"  State v. Hardy, 577 N.W.2d 212, 216 (Minn. 1998) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).  If police conduct a warrantless search, "[t]he state bears the burden of showing that at least one exception applies, or evidence seized without a warrant will be suppressed."  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988). 

            Under the automobile exception to the warrant requirement, police officers may conduct a warrantless search of an automobile if they have probable cause to believe that the vehicle contains evidence of a crime or contraband.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999); State v. Search, 472 N.W.2d 850, 852 (Minn. 1991).  Courts look at the totality of the circumstances to determine if police had probable cause to conduct a search.  State v. Johnson, 689 N.W.2d 247, 251 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  Probable cause exists if "there is a fair probability that contraband or evidence of a crime will be found in a particular place."   State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).  Generally, an officer's subjective intentions and beliefs are irrelevant when analyzing the validity of a search.  See State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (concluding that "if there is an objective legal basis for an arrest or search, the arrest or search is lawful 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"). 

            A determination of probable cause relating to warrantless searches is subject to de novo review.  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). "[D]eterminations of reasonable suspicion and probable cause as they relate to searches and seizures should be reviewed de novo on appeal," and the "findings of fact should be reviewed for clear error."  State v. Lemieux, 726 N.W.2d 783, 787 (Minn. 2007) (quotation omitted).

            Evidence obtained as a result of an illegal search or seizure must be suppressed.  Harris, 590 N.W.2d at 97.  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's conclusion that there was probable cause justifying a search of Boles's SUV was based on the throwing motion the officers observed when they arrived at Boles's residence and the officers' knowledge that there was a possibility of evidence of the assault and drugs on the premises.  The chronology of events is critical to an assessment of the court's determination.

            When the officers arrived at the residence, they knew only of an alleged assault with a 2x4.  They knew nothing about the possibility of the presence of drugs.  The officers spoke to M.L.V. about the assault but neither the officers nor M.L.V. said anything about drugs being present or having been involved in the incident.  Next, the officers searched the basement and discovered what appeared to be cocaine.  Apparently suspecting that Boles might have thrown drugs into the SUV, one officer asked M.L.V. what Boles had thrown, and she stated that she was not aware of anything having been thrown.  The officers then searched the SUV and discovered cocaine inside.  It was only after that the officers talked to M.L.V. about drugs on the premises.  She said there were drugs present, and she gave permission to search.

            It is clear that the officers had no objective reason to believe there might be drugs in the SUV until they learned of the cocaine in the basement of the residence.  But the district court held that the knowledge of the drugs in the basement was the product of an illegal search.  That ruling is unchallenged on appeal.  Thus, under the Wong Sun doctrine, the officers were prohibited from relying on that knowledge as probable cause to search the SUV for drugs.

            Without the knowledge the officers acquired from their illegal search of the basement, they had, as a basis for probable cause, only the furtive throwing gesture Boles made when the officers arrived.  A furtive gesture alone will not support a finding of probable cause.  State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007); State v. Dineen, 296 N.W.2d 421, 422 (Minn. 1980).  We hold that the district court erred in determining that the officers had probable cause to search the SUV.

            The state argues that the search of the SUV was also justified because the officers had not determined conclusively that they had found the 2x4 allegedly used in the assault. Even so, the state fails to identify an exception to the warrant requirement that would apply.  The record still shows nothing but a furtive gesture.  Whether that gesture involved a throwing of drugs or a 2x4 or something else, or whether there was actually no throwing at all, were all matters of speculation and did not justify the search of the SUV without a warrant.

The state also contends that the search of the vehicle was justified as a search incident to a lawful arrest.  We disagree.

A police officer who makes a lawful custodial arrest of a vehicle's occupant may search the passenger compartment of the vehicle as a contemporaneous incident of arrest.  New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981).  This is true even when an officer does not make contact until the person arrested has already left the vehicle.  Thornton v. United States, 541 U.S. 615, 617, 124 S. Ct. 2127, 2129 (2004); State v. White, 489 N.W.2d 792, 795-96 (Minn. 1992) (allowing an incidental search of a car even after defendant is placed in the squad car).  However, "[t]he mere presence of the vehicle in the vicinity of the arrest is insufficient to support a search."  State v. Robb, 605 N.W.2d 96, 101 (Minn. 2000).  "[T]he fact that the defendant is in the squad car at the time the search occurs is irrelevant because Belton expressly foreclosed the need for a case-by-case determination of the arrestee's control of the car."  White, 489 N.W.2d at 796.

            The state contends that the Belton rule applies here and claims that Boles was an occupant of the vehicle because of the location of his head and hands.  The state cites no authority to support its proposition that Boles was an occupant merely because his head was inside the car and his hands were against it. 

            In Robb, the Minnesota Supreme Court addressed, in a footnote, the state's claim that the defendant's "act of reaching his arm into the Bronco also qualifie[d] him as an occupant under Belton."  605 N.W.2d at 101 n.3.  In rejecting this argument, the court explained that "[t]he act of reaching an arm into the interior of a vehicle while under police supervision does not make one an occupant for the purposes of Belton."  Id.  Likewise, the Eighth Circuit Court of Appeals has explained that once an arrestee "had fully entered the interior of his car in the course of his arrest, the passenger compartment became the area within his control as defined in Belton."  United States v. Riedesel, 987 F.2d 1383, 1389 (8th Cir. 1993), quoted in Robb, 605 N.W.2d at 101 n.3.  Here, there is no testimony that Boles was ever actually inside the SUV, either before or after the officers arrived.  We are not persuaded that the mere act of having just one's head inside and hands near or on a vehicle makes one an occupant of the vehicle for purposes of Belton.  Therefore, we conclude that the Belton rule does not apply to the search of Boles's vehicle.

            Officers may also search, incident to a lawful arrest, a person's body and the area within his or her immediate control.  Robb, 605 N.W.2d at 100.  "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).  The rationale behind this exception to the warrant requirement is to ensure officer safety by removing weapons and to prevent the destruction or concealment of evidence.  Id. at 981.  A search incident to arrest can precede the arrest if "(1) the arrest and search are substantially contemporaneous, and (2) probable cause to arrest existed before the search."  State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992) (quotation and citations omitted).

To constitute a lawful search incident to arrest, police must confine their search to "the arrestee's person and the area ‘within his immediate control'construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."  Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969).  In applying this exception, courts consider several factors, including the arrestee's distance from the area, whether the arrestee was handcuffed or restrained, whether police were positioned to block the arrestee from the searched area, the ease of access to the searched area, and the number of officers present.  State v. Fisher, 588 N.W.2d 515, 517 (Minn. App. 1999) (citing 3 Wayne R. LaFave, Search & Seizure § 6.3(c), at 306-07 (3d ed. 1996)).  Accordingly, where officers handcuffed and guarded an arrestee, thereby securing the only person with access to a weapon, a search of an area fifteen feet away from the arrestee was not justified as a search incident to a lawful arrest.  Id.

Here, the search of the vehicle cannot be justified as a search incident to arrest under Chimel.  Although Boles was near the vehicle when officers arrived, he was quickly moved away from the vehicle and placed in the back of a squad car.[1]  Another officer accompanied M.L.V. inside.  By the time the vehicle was searched, at least three officers were at the scene.  Neither Boles, nor M.L.V. for that matter, had access to the vehicle so that they could obtain a weapon from it or destroy evidence inside.  Considering these facts, we cannot conclude that the vehicle was within Boles's immediate control at the time that it was searched. 

            Because Boles was not an occupant of the vehicle under Belton and because the vehicle was not an area under Boles's immediate control, we hold that the warrantless search of Boles's vehicle was not justified as a search incident to a lawful arrest.

            The state failed to establish an exception to the requirement that the police obtain a warrant to search Boles's motor vehicle.  Therefore, the district court erred in denying the motion to suppress the controlled substance found there and that ruling, along with appellant's conviction, must be reversed.

            Reversed.

 

[1]The state, relying upon White, argues that Boles's location in the back of the squad car at the time of the search is irrelevant, because a police officer can search an automobile incident to arrest.  489 N.W.2d at 795-96 (concluding that the bright line rule established by Belton allowed officers to search the arrestee's vehicle, even though the arrestee was in the squad car at the time of the search).  White is analyzed under the Belton rule, which requires that the arrestee be an occupant of the vehicle to be searched.  See id. at 794.  The facts in White clearly indicate that officers saw the defendant driving the vehicle and saw the defendant exit the vehicle and make eye contact with officers before walking to a nearby yard.  Id. at 793.  As addressed above, Boles was not an occupant of the vehicle, and thus the bright line rule established by Belton,and utilized in White, cannot apply.  Rather, the search must be analyzed under Chimel, which requires the consideration of several factors, including the arrestee's distance from the area to be searched.