State of Minnesota, Respondent, vs. Jon Wade Muir, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-03-154

 

State of Minnesota,

Respondent,

 

vs.

 

Jon Wade Muir,

Appellant.

 

Filed September 9, 2003

Affirmed

Harten, Judge

 

Wilkin County District Court

File No. K4-02-119

 

Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

Timothy E.J. Fox, Wilkin County Attorney, Box 214, Breckenridge, MN 56520; and

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

Appellant challenges his conviction of first-degree controlled substance crime, arguing that the district court erred by denying his motion to suppress evidence found in the car he was driving and that his waiver of a jury trial was inadequate because the district court failed to inform him of the basic elements of a jury trial.  Because we see no error of law, we affirm.

FACTS

When appellant Jon Muir was served with an order for protection, an officer asked him if he had any weapons in his car.  Appellant said that he did not.  The officer then asked appellant for permission to search the car.  Appellant told the officer that, because appellant's father owned the car, the officer would have to talk to appellant's father.  The officer informed appellant that he could consent to the search, but appellant insisted that it was not his car, that he could not consent to a search, and that the officer had to talk to his father.

The officer verified that appellant's father was the registered owner of the car and called him at his home.  After appellant's father confirmed that he owned the car, the officer asked, "[D]o you mind if we look through it?"  Appellant's father replied, "I guess not."  The police told appellant that his father had given consent, and appellant gave them a key.  When they attempted to open the car, however, the key would not fit in the door.  After an officer saw appellant remove something from his shoe and put it in his back pocket, the police asked appellant if he had another key.  When appellant failed to produce the key, an officer patted appellant's pockets, found the correct key, and unlocked the car.  The police searched the car and found methamphetamine and several items commonly used in the manufacture of methamphetamine.

Appellant was arrested and charged with first-degree possession, sale, manufacture, and aiding and abetting the manufacture of a controlled substance.  He waived his right to a jury trial and moved to suppress the evidence found in the car.  The district court denied the motion, concluding that appellant's father had apparent authority to consent to the search, that the police could have searched the car without having a key, and that the officers inevitably would have discovered the evidence by lawful means.  Appellant was convicted on the possession charge, and this appeal followed.

D E C I S I O N

1.         Motion to Suppress

Appellant argues that the district court erred in denying his motion to suppress because his father did not have authority to consent to the search and the police seizure of the key was unlawful.  When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine as a matter of law whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

a.         Authority to Consent

The Minnesota and United States Constitutions protect against unreasonable searches and seizures by the state.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  "Warrantless searches are presumptively unreasonable unless one of a few specifically established . . . exceptions applies."  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (quotation omitted).  "Consent to entry is a well recognized exception to the warrant requirement."  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).

The district court determined that appellant's father had apparent authority to consent to the search.  We agree.  A third party has apparent authority to consent to a search when, "under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter."  Thompson, 578 N.W.2d at 740 (citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990)).  This court must determine whether, under the totality of the circumstances, there was a sufficient objective basis for the police to believe that the person consenting to the search had authority to consent.  Id.

Appellant repeatedly told the police that only his father, the registered owner, could consent to search the car.  The police corroborated appellant's claim by verifying that his father was the registered owner of the car; appellant's father confirmed that he owned the car and consented to the search.  Although the father told the police that appellant drove the car "all the time," his ownership interest presumably gave him the right to use it.  See Licari, 659 N.W.2d at 254 (officer could not reasonably rely on landlord's apparent authority where landlord's statement to officer did not include right to use of premises to be searched).  Under the totality of the circumstances, there was a sufficient objective basis for the police to reasonably believe that appellant's father had authority over the car and could give consent to search it.

Appellant argues that, because the officer told him that he could consent to the search, the officer did not believe that appellant's father had authority to consent.  Appellant cites no authority, however, for the implication that only one person may have authority to consent.  Moreover, the relevant issue is whether there was an objective basis for the officer to believe that appellant's father had authority.  Appellant also argues that the police should not be allowed to rely on the father's consent when appellant was present, objected to the search, and had a privacy interest superior to that of his father.  But the police had no indication that appellant's privacy interest was "superior" to his father's interest, and appellant strongly implied otherwise when he insisted that he did not have the authority to consent to the search, but his father did.  Further, appellant did not unequivocally refuse permission to search; he merely told the police to call his father.

We conclude that the district court did not err by determining that appellant's father had apparent authority to consent to the search of the car.

b.         Seizure of the Key

Appellant argues that the district court erred by denying his motion to suppress because the warrantless search of his person was unlawful.  "If the state can establish by a preponderance of the evidence that the fruits of a challenged search ultimately or inevitably would have been discovered by lawful means, then the seized evidence is admissible even if the search violated the warrant requirement."  Licari, 659 N.W.2d at 254 (quotation omitted).

It is apparent that even without the warrantless search of appellant's person, the police inevitably would have discovered the evidence by lawful means.  An officer testified that he could have searched the car without the key and that he would have done so.  Because appellant's father did not place any limitations on his consent, it would have been reasonable for the officer to open the car without the key.  See, e.g., United States v. Martinez, 949 F.2d 1117, 1120 (11th Cir. 1992) (scope of general consent to search mini-storage unit included consent to pry open and search locked trunk of a vehicle inside unit); see also Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991) (determining the standard for measuring scope of consent is that of objective reasonableness).  Thus, it was inevitable that the consensual search of the car would have been lawfully executed even without the car key.  Under the circumstances, the district court did not err in declining to suppress the evidence found in the car notwithstanding the warrantless seizure of the car key from appellant's person. 

2.         Waiver of Jury Trial

Appellant argues that he "did not validly waive his right to a jury because the [district] court did not first insure that [he] understood the basic elements of a jury trial."

The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

 

Minn. R. Crim. P. 26.01, subd. 1(2)(a).  Strict compliance with the rule is required to assure that the waiver is made voluntarily and intelligently.  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. 18 June 2002).

The record demonstrates that appellant's waiver was in strict compliance with Minn. R. Crim. P. 26.01.  Appellant signed the following waiver:

            I, John Muir, * * * acknowledge that I have a constitutional right to have this case decided by a 12 person jury and after fully discussing this right with my attorney, I am hereby knowingly and voluntarily waiving my right to a trial by jury and ask the Court to set this on for a Court trial.

 

Appellant personally waived his right to a jury trial in writing after being advised that he had a constitutional right to a jury trial and after "fully" discussing that right with his attorney.  We conclude that the district court did not err by determining that appellant had knowingly and voluntarily waived his right to a jury trial.

            Affirmed.