State of Minnesota, Respondent, vs. Robert Scott Morine, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-2144

State of Minnesota,
Respondent,
 
vs.
 
Robert Scott Morine,
Appellant.

Filed November 21, 2000

Affirmed
Klaphake, Judge

Carver County District Court

File No. K2-99-301

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

Michael A. Fahey, Carver County Attorney, Martha Mattheis, Assistant County Attorney, Carver County Justice Center, 600 East Fourth Street, Chaska, MN  55318 (for respondent)

John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414-3230; and

Bryan J. Leary, Special Assistant State Public Defender, 10 Second Street Northeast, Suite 114, Minneapolis, MN  55413 (for appellant)

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

KLAPHAKE, Judge

            Appellant Robert Scott Morine appeals from a conviction of attempted robbery, claiming that the trial court erred in declining to suppress evidence at trial and in issuing a search warrant to search his sister's home, where he was residing at the time of the offense.  Because we conclude that (1) there was no error in the court's admission of either identification evidence obtained in a one-person show-up or evidence of appellant's boots, and (2) the search warrant was supported by adequate evidence, we affirm.  We also affirm because appellant has not raised any legal issues of merit in his pro se brief.

D E C I S I O N

            Identification Evidence 

            Appellant claims that the trial court should have suppressed evidence of the one-person show-up conducted soon after the offense when the victim identified appellant as the person whom he had discovered breaking into his home.

            Courts employ a two-part test in determining whether pretrial identification evidence is admissible.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  First, the court must determine whether the identification procedure was "‘unnecessarily suggestive.'"  Id. (quoting State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995)).  "Included in that inquiry is ‘whether the defendant was unfairly singled out for identification.'"  Taylor, 594 N.W.2d at 161 (quoting Ostrem, 535 N.W.2d at 921) (emphasis added).  One-person show-ups are not unnecessarily suggestive per se.  Taylor, 594 N.W.2d at 161-62; State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983).

            Second, if the court finds the identification procedure was unnecessarily suggestive, it must determine whether the identification caused "‘a very substantial likelihood of irreparable misidentification.'"  Taylor, 594 N.W.2d at 161 (citation omitted).  The identification is reliable, even though suggestive, if the identification has an "adequate independent origin."  Id., 594 N.W.2d at 161.

            Applying the two-part test set forth in Taylor, we conclude that the show-up used here did not cause a substantial likelihood of misidentification.  Prior to the show-up, the victim had a good opportunity to observe appellant while appellant was trying to break into his home and during their subsequent car chase.  The victim had also provided police with an accurate description of appellant and his vehicle, including the vehicle's license plate number.  The show-up was conducted, at most, within two hours of the crime, and the victim identified appellant with certainty as the intruder of his home.  While show-ups are by their nature suggestive, this show-up was reliable under the facts of this case and properly ruled admissible by the district court.  See Taylor, 594 N.W.2d at 162 (show-up identification admissible where child sexual assault victim knew her assailant and identification was merely confirmatory; show-up not unnecessarily suggestive because it had no potential to influence the identification); McDuffie v. State, 482 N.W.2d 234, 236-37 (Minn. App. 1992) (show-up identification admissible where robbery victim had opportunity to view suspect, gave matching description of suspect, identified suspect with certainty, and suspect was apprehended within one-half hour of robbery in victim's neighborhood), review denied (Minn. Apr. 13, 1992); State v. Hazley, 428 N.W.2d 406, 410 (Minn. App. 1988) (show-up identification where suspects were paraded one-by-one in front of squad car containing robbery victims ruled admissible where victims provided earlier matching descriptions of suspect and suspect's vehicle license plate number and suspect was apprehended soon after crime), review denied (Minn. Sept. 28, 1988).

            Boots Evidence 

            Appellant next argues that evidence of his boots should have been suppressed because his sister, Sheryl Morine, offered the boots to police prior to issuance of a search warrant, and at that time she was acting as an agent for the government.  Appellant had been residing at his sister's home at the time of the offense, and he drove there immediately after committing the attempted burglary.

            A district court's determination of whether a private person's actions in conducting a search constitute a government search that is subject to Fourth Amendment protections is a factual determination subject to the clearly erroneous standard of review.  State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990).  Where a private person acts as an "agent or instrument of the state when conducting [a] search, the search is subject to Fourth Amendment constraints."  Id. (citation and quotation omitted).  The Minnesota Supreme Court has stated that precedent "plays but a small part" in determining whether a private person's search constitutes a governmental search requiring Fourth Amendment protections, because such questions must be answered case-by-case.  Id.  The court, however, has noted the helpfulness of criteria set forth in United States v. Walther, 652 F.2d 788 (9th Cir. 1981), as well as other federal cases, which "direct the trial court to focus on the significance and impact of the government's involvement in the search."  Buswell, 460 N.W.2d at 618; see also U.S. v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990).  In Walther, a seminal case issued by the Ninth Circuit Court of Appeals, the court stressed two "critical factors":  (1) the government's knowledge of and acquiescence in the search, and (2) the purpose of the search, to either assist law enforcement or to further the private person's aims.  Walther, 652 F.2d at 792.

            Here, law enforcement had no involvement in Sheryl Morine's search that produced appellant's boots.  Police neither knew of the search nor acquiesced in it.  We agree with the trial court's conclusion that Sheryl Morine's actions cannot be construed as the actions of a government agent.

Appellant argues that it can be inferred that Sheryl Morine conducted the search for the purpose of assisting in the investigation because she produced the boots soon after a detective had told her "everything" he knew about the case, presumably including that footprints were found both at the victim's house and at her house.  We decline to speculate about Morine's purpose in conducting the search and conclude that no inference should be made on her purpose in retrieving the boots. The boots were properly admitted into evidence.

Search Warrant

            Appellant claims that the court erred in failing to properly analyze and make findings on whether the officers were prompted by tainted information to seek the warrant and in concluding that the search warrant was supported by probable cause. 

            The trial court ruled illegal only the evidence contained in the warrant application of two police officers who looked through a window of Cheryl Morine's garage where they observed appellant's car.  The bulk of the information cited in the search warrant application was legally obtained.  Normally, the district court must conduct a factual inquiry into whether evidence obtained unlawfully prompted police to seek a warrant.  State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996); see Murray v. United States, 487 U.S. 533, 543-44, 108 S. Ct. 2529, 2536 (1988) (remanding where court failed to make findings on whether unlawful search caused police to seek warrant).  Here, where the search warrant is based overwhelmingly on evidence legally obtained prior to the illegal action, the independent source rule is not implicated.  The court had a "substantial basis for its decision," as required.  Lieberg, 553 N.W.2d at 55.

            Appellant also contends that the search warrant was not supported by probable cause.  The United States and the Minnesota constitutions provide that warrants must be supported by probable cause.  See U.S. Const. Amend. IV; Minn. Const. art. I, § 10; State v. Bradford,       N.W.2d       (Minn. Aug. 24, 2000).  Appellate courts give great deference to the factual findings of the court issuing a warrant, and will reverse  "only if clearly erroneous."  Bradford, ___ N.W.2d at ___ (citation omitted).  An appellate court reviews de novo the probable cause determination, and its review analyzes whether "there was a substantial basis to conclude that probable cause existed."  Id. (citation omitted).

            A search warrant may be issued if, based on the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).  After excising the evidence that was suppressed, the search warrant application in this case includes the following facts:  (1) the victim described appellant to police; (2) the victim identified the vehicle appellant was driving; (3) the vehicle was registered to the address of Sheryl Morine; (4) appellant spoke to police at his sister's home and made incriminating statements to them before he was placed in the squad car; (5) police matched footprints at the scene with those at Sheryl Morine's house; and (6) the victim identified appellant at the show-up.  Based on the totality of these circumstances, we conclude that there was probable cause to issue the search warrant.

            Pro Se Issues 

            In his pro se brief, appellant claims that one of the detectives investigating this offense "intentionally deceived" the court into issuing the search warrant and that there was "judicial interference."  In his statement of facts, appellant also appears to challenge the police handling of his clothes and claims that certain testimony was "misrecorded."  Appellant fails to further enumerate or substantiate his claims.  As appellant's claims find no support in the trial court record, we decline to address them in this appeal.

            Affirmed.