State of Minnesota, Respondent, vs. Timothy Lenus Johanneck, 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This opinion will be unpublished and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

A03-671

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy Lenus Johanneck,

Appellant.

 

 

Filed May 18, 2004

Affirmed

Robert H. Schumacher, Judge

 

Blue Earth County District Court

File No. K5021080

 

 

Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, Post Office Box 3129, Mankato, MN 56002 (for respondent)

 

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Timothy Lenus Johanneck challenges his conviction of second-degree controlled substance possession under Minn. Stat. § 152.022, subd. 2(3) (2000).  He argues the statutory distinction drawn between the quantity of hallucinogenic mushrooms possessed and the quantity of marijuana possessed violates equal protection guarantees of federal and state constitutions.  He also argues the drugs should have been suppressed as fruits of an illegal search, and there was insufficient evidence to support his conviction.  We affirm.

FACTS

            In May 2002, H.M. contacted the Waseca County Sheriff's department to report suspicious circumstances at her home.  Investigator Lance Lehman and Detective Mike Anderson spoke with H.M. at her residence.  She informed the officers that her sister Andrea Dorman and Johanneck, Dorman's boyfriend, had arrived at her house while she was absent.  H.M. is not particularly close to her sister and found it unusual that Dorman was at her home. 

Dorman told H.M. that the couple was there waiting for a package from FedEx.  H.M. thought it "highly unusual" that a package for Dorman or Johanneck would be sent to her residence.  Based on H.M.'s knowledge of Dorman's background, she suspected the package would contain drugs.  Lehman asked H.M. to contact him if the package arrived. 

            The next day, H.M. informed Lehman that the FedEx package had arrived.   Lehman and Davis again met with H.M. at her residence.  She informed the officers that she saw the FedEx truck driving in the neighborhood, approached the driver, and inquired about the package.  The FedEx driver had a package for "Andy Doorman at 2072 67th St. New Richland, MN."  Andy is a nickname used by Dorman.  The package listed a telephone contact, which was Johanneck's cell-phone number. The FedEx driver voluntarily gave the package to H.M., and she turned the package over to Lehman.

Lehman returned to Waseca with the package and contacted Officer Tim Schroeder.  Schroeder is a narcotics-detection-dog handler; both he and his dog are certified by the United States Police Canine Association.  Schroeder and his dog, Sarge, came to the Waseca Police Department garage where Schroeder and Lehman placed five packages of roughly similar size, including the FedEx package, on the floor at equal intervals.  Sarge indicated that the FedEx package contained a controlled substance.

A search warrant was issued to search the package and it was executed that same day.  Inside the package, Lehman found a mushroom and stem weighing approximately 225 grams.  The mushroom tested positive for the hallucinogen psilocyn/psilocybin.   

A delivery strategy was formulated to complete the delivery of the FedEx package to Dorman and Johanneck.  H.M. agreed to assist law enforcement efforts.  Officers arrived at H.M.'s residence with the FedEx package.  H.M. called Dorman on Johanneck's cell phone and left a message on the voicemail that the package had arrived.  Dorman returned the call and eventually the two sisters agreed to meet.  Dorman took possession of the package when she got into H.M.'s car.  Dorman was arrested after the two sisters drove to a nearby mall.

Waseca police officers also searched the area around the mall for Johanneck.  Deputy Chad Davis located Johanneck and a second male, Almicar Valdez.  Both men were taken into police custody.  Valdez informed the police that he had given Johanneck a ride to Wal-Mart to pick up a package containing illegal drugs from Dorman. 

            Johanneck was charged with second-degree controlled substance crime under Minn. Stat. § 152.022, subd. 2(3) (2000).  During preliminary hearings Johanneck argued the statute violated equal protection, the police had illegally obtained the package, and the search warrant was invalid.  The court denied all of Johanneck's motions. 

At trial both Dorman and Johanneck stipulated that the police reports and the complaint were true and accurate.  Both defendants waived their rights to a jury trial.  At the conclusion of trial, the court found both defendants guilty of second-degree controlled substance crime.  The court sentenced Johanneck to 48 months in prison but stayed execution and placed Johanneck on probation.

D E C I S I O N

1.         Johanneck argues that Minn. Stat. § 152.022, subd. 2(3), is an unconstitutional violation of his equal protection guarantees because there is no rational relationship between "the severity of the controlled substance and the penalty for its possession."  Under Section 152.022, subdivision 2, a person is guilty of second-degree controlled substance possession if "the person unlawfully possesses one or more mixtures of a total weight of 50 grams or more containing amphetamine, phencyclidine, or hallucinogen or, if the controlled substance is packaged in dosage units, equaling 100 or more dosage units."  Minn. Stat. § 152.022, subd. 2(3).  Under the same subdivision, a person is guilty of second-degree controlled substance possession if "the person unlawfully possesses one or more mixtures of a total weight of 50 kilograms or more containing marijuana or Tetrahydrocannabinols."  Id., subd. 2(4). 

Evaluating a statute's constitutionality is a question of law, which this court reviews de novo.  Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  "Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary."  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  The party challenging a statute has the burden of demonstrating beyond a reasonable doubt it violates some constitutional provision.  Id.

Both the United States and the Minnesota constitutions guarantee that no person shall be denied equal protection of the laws.  U.S. Const. amend. XIV, § 1; Minn. Const., art. I, § 2.  The clauses are analyzed under the same principles and the crux of both clauses is "the mandate that all similarly situated individuals shall be treated alike but only invidious discrimination is deemed constitutionally offensive."  Scott v. Minneapolis Police Relief Ass'n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted).  The challenging party must show the statute "prescribes different punishments or different degrees of punishment for the same conduct committed under the same circumstances by persons similarly situated."  State v. Frazier, 649 N.W.2d 828, 837 (Minn. 2002); see Haggerty, 448 N.W.2d at 364 (challenging party bears burden of proving statute is unconstitutional); see also Klinger v. Dep't of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) ("Dissimilar treatment of dissimilarly situated persons does not violate equal protection."). 

There is no evidence in the record before us to support the proposition that a person in possession of hallucinogenic mushrooms is similarly situated to a person in possession of marijuana.  In fact, Johanneck admits psilocybin, the hallucinogen in the mushroom, is different from marijuana.  Johanneck argues, however, that the two drugs' effects on the central nervous system are "roughly" the same and thus, based on his reading of the supreme court's decision in State v. Russell, 477 N.W.2d 886 (Minn. 1991), the state must provided a rational basis to treat possession of the two drugs differently. 

In Russell, however, the supreme court specifically noted that the "mood altering ingredient in both powder and [crack] was the samecocaine."  Id. at 890 (emphasis added).  Evidence that the mood-altering chemicals in marijuana and hallucinogenic mushrooms, although different, have "roughly" the same effect on the human body does not place this case within the scope of the supreme court's decision in Russell.  We conclude Johanneck has not met his burden to show section 152.022 prescribes different punishments or different degrees of punishment for the same conduct committed under the same circumstances by person similarly situated, and therefore we will not consider the extreme measure of declaring the statute unconstitutional.

2.         Johanneck next argues that the court erred in declining to suppress the results of the search where the affiant failed to disclose to the signing judge that the narcotics detection dog had only received minimal training in the detection of hallucinogenic mushrooms.  "When reviewing a pretrial order denying a motion to suppress evidence, [this court] may independently review the facts and determine whether the district court erred in not suppressing the evidence as a matter of law."  State v. McBride, 666 N.W.2d 351, 360 (Minn. 2003).  "The correct approach in a case where the facts are not significantly in dispute 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."  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

"A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentation of facts material to the findings of probable cause."  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (emphasis added) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978)).  If the misrepresentation is material "the court must determine that the police deliberately or recklessly misrepresented facts, because innocent or negligent misrepresentation will not invalidate a warrant."  Moore, 438 N.W.2d at 105. 

At the September 23 omnibus hearing, Schroeder testified that during Sarge's initial narcotics training the dog learned to detect marijuana, methamphetamine, crack,  cocaine, and ecstasy.  He further testified that after this initial training session, he taught Sarge to detect hallucinogenic mushrooms, although the training involved a total of 15 minutes on two separate occasions.  Lehman's application for a search warrant provides Sarge was certified "in drug detection by the USPCA" in April 2002.  The fact that the warrant application does not describe every controlled substance Sarge has been certified to detect, or the amount of training the dog received with respect to each substance, does not demonstrate Lehman acted intentionally or recklessly, especially since Lehman had suspicions that the package contained a controlled substance, but had no indication what type of controlled substance the package might contain.  See id. at 106 (holding search warrant was valid where there was no evidence in record that officer deliberately misrepresented facts).

We also note the district court properly determined Johanneck did not have "standing" to challenge the initial seizure of the package.  The package was addressed to "Andy Dorman" and sent to H.M.'s residence, the inclusion of Johanneck's cell phone number on the package's address label does not give Johanneck a reasonable expectation of privacy in the package.  See McBride, 666 N.W.2d at 360 (Fourth Amendment protections "are not triggered unless an individual has a legitimate expectation of privacy in the invaded space" (quotation omitted)); Stephen P. Jones, Reasonable Expectations of Privacy:  Searches, Seizures, and the Concept of Fourth Amendment Standing, 27 U. Mem. L. Rev. 907, 922 (1997) (individual must have some right to exclude others to establish privacy interest).  The district court did not err when it denied Johanneck's motion to suppress the evidence.

3.         Johanneck also argues that there is insufficient evidence that he had possession of the hallucinogenic mushrooms.  The state argues that Johanneck stipulated to a court trial according to the procedures set out in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and therefore cannot challenge the sufficiency of the evidence.  Johanneck counters that it was in fact a court trial based on stipulated facts under Minn. R. Crim. P. 26.01, subd. 3. 

At the beginning of the court trial for both Dorman and Johanneck, Dorman's attorney stated:

 

Your Honor, actually what we would ask the Court to do is allowI'll speak for [Johanneck's attorney], as wellwe'd ask the Court to consider the case on stipulated facts.  We will agree that the complaint and the police reports are accurate and true.  My client will waive her right to present evidence and waive her right to a trial by jury and allow the Court to consider the case on the reports as well as the complaint and will stipulate that the facts and allegations in the complaint are true. 

 

Johanneck's counsel agreed that his client intended to proceed in the same manner.

On appeal, Johanneck argues this was not a Lothenbach plea because it is clear neither Dorman nor Johanneck pleaded guilty.  The Lothenbach procedure, however, does not involve a guilty plea.  State v. Vershelde, 595 N.W.2d 192, 194 (Minn. 1999).  Rather, the "Lothenbach procedure calls 'for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution's case.'"  Id. at 195(quoting Lothenbach, 296 N.W.2d at 857).  That is exactly what was done in this case.  Johanneck agreed that the police reports and complaint were true and accurate, waived his right to confront any prosecution witness, waived his right to present a defense, and waived his rights to a jury trial. 

Furthermore, at the beginning of the court trial the following exchange occurred between the court and the two trial counsels:

Court:       And so this would be a so-called Lothenbach plea in order to allow you to perfect an appeal on a particular legal issue which I, in ajust in general is the due process and equal protection issue concerning the mushrooms?" 

 

Dorman's trial counsel:        Ithat wouldn't be our issue.  I didn't raise that at the omnibus hearing.

 

Court:       Oh, all right.

 

Dorman's trial counsel:        I want to discuss with my client the possibility of appealing the search warrant, but I haven't decided for sure if I'll do that; but I want to leave the option open to her.  I'm notI believe Mr. Grigsby has the same position.

 

Johanneck's trial counsel:    Yes, your honor.  I know that Mr. Grigsby wants to reserve the right to pursue an appeal.  I'm not sure which particular issue he has in mind, either; but it's his intention to proceed, otherwise, as [Dorman's trial counsel] earlier indicated to the Court.

 

(Emphasis added.) 

            We conclude Johanneck agreed to a court trial pursuant to the procedures set out in Lothenbach.  If Johanneck believed the evidence was insufficient to convict him, he could have proceeded to trial and argued that the state had not proven all the elements of the charge rather than stipulating to the state's case.  State v. Busse, 644 N.W.2d 79, 89 (Minn. 2002).  But since he agreed to a Lothenbach trial, he forfeited any right to challenge the sufficiency of the evidence on appeal.  See id. (noting that Lothenbach procedure was created to allow appeal of pretrial issues).

Affirmed.