State of Minnesota, Respondent, vs. George Canady, 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This opinion will be unpublished and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

A03-503

 

 

State of Minnesota,

Respondent,

 

vs.

 

George Canady,

Appellant.

 

 

Filed June 1, 2004

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No.  02078134

 

John Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 North Central Life Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Crippen, Judge*.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant George Canady challenges his conviction for being a prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002), arguing that the officers lacked articulable suspicion in taking his identification card and that the subsequent inventory search and impoundment of the car were unreasonable.  We affirm.

FACTS

            On August 26, 2002, Minneapolis police officers Jeffrey Hoff and James Reynolds were on routine patrol when they saw a car ahead of them traveling with a broken taillight.  When the officers activated the emergency lights of the squad car, Hoff saw the passenger of the car reach down to the floorboard with his right arm.  After the driver stopped the vehicle, Hoff approached the driver and Reynolds approached the passenger. 

            Hoff asked the driver for a driver's license, and the driver produced a student identification card instead.  Reynolds obtained a Minnesota picture identification card from the passenger, which had appellant's name on it.  A check of the driver and passenger names revealed that neither the driver nor the passenger had a valid driver's license.  The officers returned the identification cards to their respective owners and issued a citation for driving without a valid license to the driver.  The officers then told the occupants to get out of the car because the car was going to be towed.

            As the two occupants walked away, Hoff initiated an inventory search of the vehicle and found a handgun underneath the passenger seat.  When Hoff looked up, neither the driver nor the passenger was in sight.  The car was towed to the Minneapolis impound lot and the remaining contents of the vehicle were inventoried.[1]  In the course of further investigation, a latent fingerprint, later identified as appellant's, was discovered on the handgun.

            Appellant was subsequently arrested and charged with illegally possessing a firearm and with removal of a firearm serial number.  Before trial, appellant moved to suppress the evidence obtained from the police stop and the inventory search of the car.  The district court denied the motion.  At the Rasmussen hearing, Reynolds identified appellant as the passenger in the car, and during the jury trial, the parties stipulated that appellant was a person prohibited from possessing a firearm.  Appellant was convicted of illegal possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002) and was acquitted of removing a firearm serial number.  Appellant was sentenced to the presumptive 60-month sentence.  This appeal followed.

D E C I S I O N

 

            Appellant argues that the district court erred by denying his motion to suppress certain evidence.  "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).  The determination of whether a search is constitutional is a question of law subject to de novo review.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  In reviewing the denial of a suppression motion, this court is bound by the district court's factual findings unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

I.

            Appellant first argues that the district court erred in finding that he was the passenger in the car when it was stopped.  We disagree.  The record reflects that the Minnesota identification card presented to Reynolds by the passenger had appellant's name on it.  Also, the furtive movement that Hoff observed from the passenger, along with the discovery of the gun with appellant's fingerprint on it, are circumstantial evidence that appellant was the passenger in the car.  In addition, Reynolds identified appellant at the Rasmussen hearing as the person from whom he obtained the identification card.  Because this is ample evidence from which the district court could conclude that appellant was the passenger in the car, the district court did not clearly err in its finding.

II.

            Appellant argues in the alternative that appellant was unlawfully seized when police took the Minnesota identification card he provided.  We disagree.  The Fourth Amendment of the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures of persons, papers, and effects.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  Limited investigatory stops are allowed if police have reasonable, articulable suspicion of a motor vehicle violation or of criminal activity.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968); State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 909 (1975).  When there is no factual dispute, a reviewing court determines if a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure.  See State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) ("The correct approach . . . is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did.").

            Appellant does not dispute that the initial stop for an equipment violation was reasonable.  Instead, appellant argues that the seizure of his identification card was unlawful because the officers lacked a reasonable suspicion of criminal wrongdoing.  The district court found that the seizure of the identification card was lawful because "[w]here the driver of an automobile subject to a traffic stop is an unlicensed driver and a juvenile out past curfew, detaining a passenger for the purpose of obtaining identification is within the scope of the original detention and is objectively reasonable."  The district court's determination is consistent with Minnesota caselaw.  State v. Johnson, 645 N.W.2d 505, 508 (Minn. App. 2002) (stating that after questioning the driver and learning that the driver has only a learner's permit, officers may ask passengers whether they are licensed drivers).

            While the officers did not question the driver as to whether she had a valid driver's license, or check the status of her licensure before inquiring as to appellant's licensure, Hoff did ask the driver for her license and was only provided a student identification card.  Because the driver provided only a student identification card and did not offer an excuse for why she did not provide a driver's license when asked for one, it was proper for Reynolds to then inquire into whether appellant was validly licensed.  It was also proper for Reynolds to seize the identification card for purposes of licensure validation.[2]  See id. at 511 (distinguishing the less-intrusive, proper procedure of taking the information officers need from an identification card and returning it to the owner, from the more-intrusive procedure of running a warrant check).  The officers would have had to check the records regardless of what they were provided by appellant.  Because the seizure of appellant's identification card was not any more intrusive than it would have been if the officer had been provided a driver's license, the seizure was reasonable.

III.

            Appellant argues that the inventory search that led to the discovery of the gun was pretextual and not supported by a need for impoundment.  We disagree.  An inventory search of an impounded vehicle has long been recognized as an exception to the warrant requirement of the Fourth Amendment.  State v. Ture, 632 N.W.2d 621, 627-28 (Minn. 2001); City of St. Paul v. Myles, 298 Minn. 298, 304-05, 218 N.W.2d 697, 701 (1974).  Inventory searches do not require probable cause.  State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997).  But an inventory search may not be "a ruse for a general rummaging in order to discover incriminating evidence."  Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990).  Two requirements must be satisfied to establish a lawful inventory search: (1) the impoundment must be necessary; and (2) the police must conduct the vehicle search using standardized procedures.  See Holmes, 569 N.W.2d at 187 n.6 (stating that "courts must determine the reasonableness of the impoundment prior to determining the reasonableness of the inventory search").

A.        Impoundment

            To determine whether an inventory search is lawful,

we must . . . look, as a threshold inquiry, to the propriety of the impoundment, since the act of impoundment gives rise to the need for and justification of the inventory.  If impoundment is not necessary, then the concomitant search is unreasonable.

 

State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977).  "The state's interest in impounding must outweigh the individual's Fourth Amendment right to be free of unreasonable searches and seizures."  Id.  Also, the circumstances surrounding the impoundment must not give rise to a "gratuitous assumption of custody by the police."  Id. at 511. 

Appellant asserts that because the car was not creating a hazard or inconvenience, impoundment was not clearly necessary, and, consistent with the department procedures, the officers should have discussed with the driver other options including contacting someone else to drive the car from the scene.  In addition, appellant asserts that because the tow truck arrived approximately nine minutes after the stop began it suggested a "gratuitous assumption of custody by the police."  Id. 

The Minneapolis Police Department Police Manual states that "if the driver is issued a citation and there is no licensed driver present whom the vehicle can be released to, the vehicle shall be towed."  The plain language of the policy does not require the officers to inquire into whether the driver or the passenger could have found someone else to drive the car away in lieu of a tow.  If a licensed driver was present, the officers could have released the car to that person.  But that is not the situation here.  In addition, the record does not contain any evidence indicating that the driver or appellant sought to take responsibility for removing the vehicle.  Because the driver in this case was issued a citation for not having a valid driver's license, and because appellant, who was the only other passenger in the car, also lacked a valid driver's license, there was no licensed driver present and the police officers properly and reasonably followed department policy by impounding the vehicle.  The impounding did not violate the Fourth Amendment or the Minnesota Constitution.  See Myles, 298 Minn. at 300, 218 N.W.2d at 698-99 (noting the impoundment was necessary where the driver and passengers were under arrest, the owner of the vehicle was not present, and it was 1:35 a.m.). 

B.        Search

            Appellant also argues that the inventory search that led to the discovery of the gun was pretextual.  When a vehicle is lawfully impounded, police officers are permitted to conduct an inventory search pursuant to standard procedures and conduct "the search, at least in part, for the purpose of obtaining an inventory."  Ture, 632 N.W.2d at 628.  A pre-existing suspicion that evidence will be uncovered during a lawful inventory search will not invalidate the search as long as it was legally initiated and conducted unless it is shown that the police acted in bad faith or for the sole purpose of investigation.  Holmes, 569 N.W.2d at 187.  Immediate on-the-scene inventories prior to a car's impoundment have been justified as necessary to protect the owner's property, to insure against claims of loss, and to guard the police from potential danger.  Colorado v. Bertine, 479 U.S. 367, 372-73, 107 S. Ct. 738, 741-42 (1987). 

            The record reflects that before the search, the officers announced to the driver and appellant that the car would be impounded and towed.  Reynolds testified that the reason for the impoundment was that the vehicle's owner was not present and there were no licensed drivers in the vehicle.  It was in the course of executing the police department's inventory-search policy that Hoff discovered the gun.  Hoff did fill out a vehicle impound report and listed the gun as inventory, and the officers did not make an arrest until after they found the handgun in the car. 

            While appellant suggests that we can infer from the officers' acknowledgement of the prior furtive movement that the officers' sole motive was to investigate and not to inventory, a more compelling inference is that the officers' intention was to inventory a properly impounded vehicle, and when Hoff began the inventory he found the handgun.  Because the officers' testimony sufficiently establishes the presence of standardized procedures, and that police did not act in bad faith or for the sole purpose of investigation, we conclude the inventory search was lawful.

            Affirmed.

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

 

[1] It is the policy of the Minneapolis Police Department to impound a motor vehicle involved in a traffic stop if neither the motor vehicle owner nor a licensed driver is available to take responsibility for the vehicle.  When a vehicle is impounded, it is police policy to search the car in order to inventory its contents.  Both procedures are done to protect the city against claims of damage or theft.

[2] Here, there is no evidence that the officers ran a warrant check on appellant.