In re: Elizabeth S. Olson, petitioner, Respondent, vs. Brian H. Olson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-98-344

Terence Hogan,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 3, 1998
Affirmed
Anderson, Judge

Ramsey County District Court
File No. T9-97-84565

Arthur R. Martinez, 425 South Third Street, Minneapolis, MN 55415 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Peggy J. Birk, St. Paul City Attorney, Michael A. Seasly"" ~, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Appellant Terence Hogan challenges his conviction for engaging in prostitution, arguing that the arresting police officer (1) unconstitutionally seized appellant and (2) failed to record the interrogation of appellant in the officer's squad car. Due to appellant's failure to raise the seizure issue at the trial court level, and because appellant's interrogation did not violate this state's custodial-interrogation recording requirement, we affirm.

FACTS

On the evening of December 11, 1997, a St. Paul police officer observed appellant's vehicle enter and linger down a dead end street, a dead end commonly used for criminal activity. As he left the dead end, appellant committed a traffic violation and was subsequently stopped by the police officer.

The police officer suspected that appellant was engaged in prostitution with his female companion. Based upon this suspicion, the officer asked appellant to exit the vehicle so as to separate appellant from his companion and to prevent the collaboration of their stories. Appellant was patted-down for weapons and placed in the back of the officer's squad car. After a few routine questions in the back of the squad car, the officer read appellant his Miranda rights and questioned appellant as to the suspicious activity. Appellant confessed to engaging in prostitution and was arrested.

At a Rasmussen hearing, the district court found that the officer had read appellant his Miranda rights. Appellant then stipulated to all facts at trial, except the Miranda issue. After appellant waived his right to a jury trial, the court found appellant guilty of the misdemeanor offense of engaging in prostitution. Appellant was sentenced to a fine of $500, a 30-day jail term stayed for one year, a $250 statutory assessment, and a one-block stay-away order from the area of the offense. Appellant challenges this conviction under both the Fourth Amendment to the U.S. Constitution and Article I, Section 10 of the Minnesota Constitution, as well as under State v. Scales, 518 N.W.2d 587 (Minn. 1994).

D E C I S I O N

I.

This court rejects appellant's argument that the police officer's seizure was unconstitutional.

Appellant did not raise at the Rasmussen hearing the argument that his detention in the back seat of the police officer's car was an unconstitutional seizure. The failure to raise an issue at trial waives the right to raise the issue on appeal. State v. Spaeth, 552 N.W.2d 187, 196-97 (Minn. 1996). Near the close of the Rasmussen hearing, appellant asked the court to rule on "whether or not the stop was constitutional." The court found the police officer had probable cause to stop appellant for a traffic violation and did not rule on whether appellant's back-seat interrogation was an unconstitutional seizure. Appellant did not follow up with a specific seizure question, and, as a result, he is prohibited from doing so now.

Appellant argues that his "stop" reference includes the word "seizure." Appellant equates his "stop" language to U.S. Supreme Court and Minnesota decisions which have stated that a traffic stop justifies Fourth Amendment seizure analysis. See, e.g., Whren v. U.S., 518 U.S. 806, 809, 116 S. Ct. 1769, 1772 (1996) (stating that "the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure'") (citations omitted); State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (driver was "seized" when placed in back of squad car).

Such a broad request requires this court to ignore the fact that at the hearing appellant asked the court to rule only as to the traffic violation and not to the detention in the back seat of the squad car. This court generally will consider only matters argued and considered by the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Appellant was on notice of a search and seizure issue because the state's pre-trial motion to compel discovery included such a reference. Yet, despite such notice, appellant specifically limited the focus of this case to the Scales recording requirement at both the trial management conference and the Rasmussen hearing. We do not expect the district court to fill in the gaps of appellant's argument, nor is it reversible error to fail to do so. C.f. State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992) (where state did not have advance notice of issues to be raised at omnibus hearing, it was proper to reopen hearing to allow state to present additional evidence); State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994) (issue not waived when defense counsel briefed argument after omnibus hearing). This court will not now infer that which appellant has previously failed to articulate.

Nevertheless, even if we were to accept appellant's argument, we find that neither the scope nor the duration of the interrogation was unconstitutional under either the Fourth Amendment or Article I, Section 10 of the Minnesota Constitution.(1) In State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986), the supreme court ruled that, when questioning suspects after a traffic stop, it is only prudent that an officer separate a vehicle's multiple occupants. The Herem court also found that requiring a suspect to sit in a police car for a short time does not take a situation "beyond the realm of an ordinary traffic stop" and is "not the functional equivalent of a formal arrest." Id. at 883-84. This court has also refused to place a rigid time limitation on the duration of investigative stops. State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993). We find neither evidence nor argument which casts doubt on the officer's right to question appellant after the routine traffic stop. The duration of the stop was not unusual. In addition, we find that it was reasonable that the officer separated appellant and his female passenger to prevent collaboration of their stories. Hence, we find neither a violation of appellant's constitutional rights nor reversible error.

II.

We next evaluate whether the district court admitted appellant's unrecorded confession in violation of the supreme court's rule in State v. Scales, 518 N.W.2d 587 (Minn. 1994). "The trial court's factual findings are subject to a clearly erroneous standard of review, but the question whether there was a 'substantial violation' of Scales" presents a question of law that this court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996).

In Scales, the supreme court stated that:

[A]ll custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.

518 N.W.2d at 592.

Our first consideration must be whether appellant was in custody. Appellant concedes that, for Scales to apply, we must find the back seat of a squad car to be a place of detention.

Appellant's case is similar in both facts and argument to State v. Schroeder, 560 N.W.2d 739 (Minn. App. 1997). In Schroeder, the defendant was arrested for assisting in a burglary, placed in a police squad car, and read his Miranda rights, after which defendant made several incriminating statements. Id. at 739. On appeal, the defendant challenged the failure to record his statements, arguing that all police cars should have working tape recorders. Id. at 740 (officers had recorders, but one was not working and other could not be found). The Schroeder court declined to so expand Scales, understanding that such an interpretation would extend an absolute recording requirement to all instances of custodial interrogation, not just to places of detention. Id.

We also address the second prong of the Scales test: whether the failure to record an interrogation is a substantial violation of the recording requirement. Scales, 518 N.W.2d at 592. Any unrecorded statement made by a suspect during custodial interrogation may be suppressed at trial, but it must be suppressed only if the recording violation is deemed substantial. Id. The Scales court defined substantial to include a consideration of all relevant circumstances, including "gross, willful and prejudicial" conduct. Id. (quoting the Model Code of Pre-Arraignment Procedure § 150.3(2)(a)(1975)).(2)

Appellant does not challenge the district court's Miranda ruling, but instead argues that, because of the factual dispute, the officer's failure to record the confession became a substantial violation. The supreme court has explained that the rationale for the Scales decision was "to prevent factual disputes about the existence and context of Miranda warnings and any ensuing waiver of rights." State v. Miller, 573 N.W.2d 661, 674 (Minn. 1998). Appellant emphasizes the factual difference between this case and Schroeder because, unlike Schroeder, appellant challenged the Miranda reading at the district court level.

Both Miller and Schroeder offer an understanding of what constitutes a substantial violation. In Miller, the supreme court ruled that the failure to record part of an interrogation was not a substantial violation of Scales absent evidence that the failure was deliberate or that the police department had a practice of failing to record suspects' statements. 573 N.W.2d at 674-75. In Schroeder, the court searched for a "credible suggestion of police overreaching" that would constitute a substantial violation of Scales. 560 N.W.2d at 740.

The record contains no credible suggestion of police overreaching or any other substantial violation.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

1. Where the facts are not significantly in dispute, this court is at liberty to find as a matter of law that an officer was justified in questioning an appellant in the back of a squad car. State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (citing Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985)).

2. The Scales court quoted from both Sections 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure, which provide as follows:

(2) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if one or more of the following paragraphs is applicable:

(a) The violation was gross, willful and prejudicial to the accused. A violation shall be deemed willful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.
(b) The violation was of a kind likely to lead accused persons to misunderstand their position or legal rights and to have influenced the accused's decision to make the statement.
(c) The violation created a significant risk that an incriminating statement may have been untrue.

(3) Circumstances to Be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (2) is substantial, the court shall consider all the circumstances including:

(a) the extent of deviation from lawful conduct;
(b) the extent to which the violation was willful;
(c) the extent to which the violation was likely to have led the defendant to misunderstand his position or his legal rights;
(d) the extent to which exclusion will tend to prevent violations of this Code;
(e) whether there is a generally effective system of administrative or other sanctions which makes it less important that exclusion be used to deter such violations;
(f) the extent to which the violation is likely to have influenced the defendant's decision to make the statement; and
(g) the extent to which the violation prejudiced the defendant's ability to support his motion, or to defend himself in the proceeding in which the statement is sought to be offered in evidence against him.

518 N.W.2d at 592 n.5.