State of Minnesota, Respondent, vs. Daniel Jay Campbell, 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This opinion will be unpublished and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 A03-705

 

State of Minnesota,
Respondent,
 
vs.
 
Daniel Jay Campbell,
Appellant.

 

Filed June 14, 2004

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. K0021928

 

 

Mike Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

 

Susan Gaertner, Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of first-degree controlled-substance crime, appellant challenges the district court's pretrial order denying his motion to suppress evidence found during a warrantless search of an apartment, arguing that his girlfriend did not have authority to consent, and she did not consent, to the search.  Appellant also argues that his statement to police should have been suppressed because his requests for counsel were ignored.  We affirm.

FACTS

            At approximately 11:30 a.m. on May 25, 2002, St. Paul police officer Steven Huspek responded to a complaint about a strong chemical odor that was coming from the downstairs apartment of a two-story building with two apartments on the second floor and one apartment on the ground floor.  The complainant also stated that she had observed a large amount of foot traffic at the downstairs apartment and suspected there was a possible methamphetamine lab in the apartment.

            As Huspek approached the building in his squad car, he saw a man, later identified as appellant Daniel Jay Campbell, standing in the doorway just outside the downstairs apartment. After the two made eye contact, appellant turned quickly and went into the apartment.

            Huspek parked his squad car in front of the doorway to the apartment, and as he walked toward the building, a woman, later identified as Tania Kubiszewski, walked out of the apartment.  Huspek asked her if she lived there, and she told him that she was just staying there for a few days.  Huspek asked if she knew who the man that just walked into the apartment was, and Kubiszewski said that it was her boyfriend.  Huspek also learned that neither Kubiszewski nor appellant were the tenants, and the apartment was rented to a man named "Tim" who had left to go to the store.  Huspek described Kubiszewski as cooperative, but also "very excited," and emotionalshe started to cry immediately upon talking to the officer and repeatedly called out to her boyfriend.  Based on his observations, Huspek believed that Kubiszewski was high on some type of drug.

            As Huspek talked to Kubiszewski, he could smell a strong ether odor coming from the apartment and, through the open door to the apartment, he saw two large fans blowing air to the outside.  Huspek asked Kubiszewski where her boyfriend went, and she said she did not know.  Huspek said, "I think we should find him," and told Kubiszewski that he wanted to speak to him.  According to Huspek, Kubiszewski then turned, stepped over the first fan, and walked into the apartment.  Huspek took her response to his statement as an invitation to walk into the apartment and followed Kubiszewski. 

            Huspek noticed that the chemical odor was stronger inside the apartment.  Kubiszewski became visibly upset, called out for appellant, and cried.  When she could not locate appellant, she said that he must have run out the other door to the apartment. She then went to the bathroom door, which was closed, opened it a foot, peered in, and then quickly closed the door.  Huspek was suspicious of her movements and thought that she probably saw appellant hiding in the bathroom.  He asked her to step back, drew his revolver, and looked into the bathroom.  He saw several jars filled with liquid next to the shower stall, and to the right of the shower, he saw more jars, coffee filters, and other chemicals.  Based on his training and experience, Huspek believed the items to be the workings for a methamphetamine lab.  Huspek escorted Kubiszewski out of the apartment, placed her in the back of his squad car, radioed for backup, and notified the fire department.  A search warrant was obtained, and officers trained in the identification and processing of methamphetamine labs searched the apartment and found chemicals and other materials typically used to manufacture methamphetamine.

On May 29, 2002, appellant was arrested. While in custody, appellant was interviewed by officer Todd Feroni.  Appellant was charged with first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subds. 2a, 3, 609.05 (2000) (aiding and abetting manufacture of methamphetamine); conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subds. 2a, 3, 152.096 (2000); and first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subds. 2(1), 3, 609.05 (2000) (possession).

Appellant filed a motion to suppress, arguing that Huspek's search of the apartment was invalid and that his statement to Feroni was made in violation of his right to counsel.  In an oral order the district court found that Huspek's entry into and search of the apartment did not violate appellant's Fourth Amendment rights.  The district court found that Huspek reasonably interpreted Kubiszewski's act of turning around and walking into the apartment as an invitation by Kubiszewski for Huspek to enter the apartment.  The district court also found that Huspek's search of the bathroom after Kubiszewski quickly opened and closed the door, was reasonable for the purpose of ensuring officer safety.

Appellant waived his right to a jury trial and submitted his case to the court based on stipulated facts pursuant to Minn. R. Crim. P. 26.01, subd. 3, and State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Appellant was found guilty on all three counts.  This appeal followed. D E C I S I O N

 "[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed."  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Authority to Consent to the Search

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10; Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041 (2001); State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996).  Short-term social guests have a reasonable expectation of privacy in their host's home under both the Fourth Amendment and the Minnesota Constitution, entitling guests to claim the protection of the Fourth Amendment and the Minnesota Constitution.  In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn. 2003).  The exclusionary rule prohibits the admission of evidence discovered during an illegal search.  Id.

"It is well settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is "‘per se' unreasonable * * * subject only to a few specifically established and well delineated exceptions.'"  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).  "It is equally well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."  Hanley, 363 N.W.2d. at 738.  The government bears the burden of showing that consent was given freely.  Othoudt, 482 N.W.2d at 222.

Appellant argues that Huspek entered the apartment without obtaining consent.  Appellant contends that Kubiszewski had no authority, actual or apparent, to consent to the search.  The state argues that this issue is not properly before this court because appellant did not raise the issue of Kubiszewski's authority to consent in the district court.  See Roby v. State, 547 N.W.2d 354, 347 (Minn. 1996) (stating appellate courts will generally not consider matters not argued and considered in the district court).   But the state argued to the district court that the consent issue involved two questions, and the first question was "[D]id Officer Huspek have enough information to determine that the female had authority to consent to the entry."  Although the district court did not explicitly address the issue, we can infer from the court's finding that Huspek reasonably interpreted Kubiszewski's actions as an invitation to enter the apartment that the court found that Kubiszewski had authority to consent to entry.  Therefore, this issue was sufficiently raised in the district court. 

"[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected."

 

Hanley, 363 N.W.2d at 738 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)) (emphasis added in Hanley). 

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property.  The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

 

Hanley, 363 N.W.2d at 738-39 (quoting Matlock, 415 U.S. at 171, n. 7, 94 S. Ct. at 993, n. 7) (emphasis added in Hanley). 

Where common authority does not actually exist, consent to enter is still valid where, "under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter."  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998) (citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990)).  "[A]pparent authority exists only if the authority claimed by the third party would, if true, be sufficient to satisfy the legal test for actual authority."  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).  "Stated another way, if the facts possessed by police would not establish actual authority to consent under the law, police reliance on those facts cannot be reasonable."  Id. at 253.

Huspek saw Kubiszewski coming out of the apartment that appellant had just entered.  Kubiszewski told Huspek that she was staying in the apartment with appellant. She also told Huspek that neither she nor appellant were tenants.  These facts, if true, are sufficient to establish actual authority to consent.  See Thompson, 578 N.W.2d at 740 (officers could reasonably believe that young man approximately 18 years old who did not live in apartment but who answered officers' knock on apartment door at approximately 6:00 a.m. had authority to consent to officers' entry into apartment to speak with renter and a guest of the renter).  Therefore, Kubiszewski had apparent authority to consent to Huspek's entry into the apartment to speak with appellant.

Appellant argues that because Kubiszewski was visibly upset, Huspek could not have reasonably concluded that she had authority to consent to a search of the apartment. But appellant cites no authority indicating that a person's emotional state makes it unreasonable for an officer to believe the person, and it is not apparent why Kubiszewski's emotional state would cause Huspek to question the accuracy of her statements that she and appellant lived in the apartment, but were not tenants. 

Consent to Search

Appellant contends that Huspek never asked Kubiszewski if he could enter the apartment, and she did not invite him in.  Appellant argues that there was no communication whatsoever regarding Huspek entering the apartment and whether that was acceptable to Kubiszewski, and, instead of obtaining consent, Huspek assumed that Kubiszewski's turning and walking into the apartment was an invitation to enter.  The district court found that Huspek reasonably interpreted Kubiszewski's act of turning and walking into the apartment as an invitation to enter the apartment.

We do not understand appellant's argument to be a challenge to the district court's determinations of fact; it appears that the parties agree about the events that occurred when Huspek arrived at the apartment.  Appellant's argument is that it was not reasonable for Huspek to interpret these events as meaning that Kubiszewski consented to Huspek's entry into the apartment.

Consent does not have to be verbal, it may be implied from conduct.  Othoudt, 482 N.W.2d at 222.  Whether Kubiszewski gave Huspek permission to enter the apartment "is judged by an ‘objective reasonableness' standard: ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?'"  United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir. 1992) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991)).

The issue, therefore, is whether a reasonable person would have understood that Kubiszewski was consenting to Huspek entering the apartment when Huspek said to Kubiszewski, "I think we should find him," and told Kubiszewski that he wanted to speak to appellant, and Kubiszewski turned and walked into the apartment.

It is important to emphasize that, in analyzing this issue, we are not attempting to determine whether Huspek's interpretation of Kubiszewski's actions was correct; we are only determining whether his interpretation was reasonable.  The Supreme Court has explained:

It is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the governmentwhether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirementis not that they always be correct, but that they always be reasonable.  As we put it in Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949):

"Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.  But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability."

 

Rodrigues, 497 U.S. at 185-86, 110 S. Ct. at 2800.

There is nothing in the record that indicates that Huspek exerted any kind of authority over Kubiszewski, other than that inherent in his office as a police officer.  Huspek's conduct was not overbearing.  Kubiszewski was visibly upset, and she had repeatedly called for appellant.  When Huspek told Kubiszewski that he wanted to speak with appellant and said, "I think we should find him," Kubiszewski turned and walked into the apartment.  Although Kubiszewski's actions might not have been in response to Huspek's statements, given the sequence of events, it was reasonable for Huspek to interpret the actions as a response to his statement that he and Kubiszewski should find appellant and that Kubiszewski was going to look for appellant and expected Huspek to follow her.

Right to Counsel

Appellant argues that his right to counsel was violated when his requests for counsel before and during the interview with Feroni were ignored.  The district court found that (1) appellant's claims that he invoked his right to counsel before the tape recorder was turned on and at one point where the transcript of the tape recording indicates that what appellant said was inaudible were not credible; (2) Feroni responded appropriately to appellant's requests for counsel; (3) appellant was given the opportunity to withdraw from the interview and chose not to; and (4) appellant's statements were voluntarily made, and they were knowing and intelligent.[1]

The right to have counsel present during all custodial interrogations is well established.  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).  "The request for counsel must be clear and unequivocal."  State v. Ray, 659 N.W.2d 736, 741 (Minn. 2003).  A request for counsel is considered unequivocal if it is articulated "sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney."  State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999).  When a request for counsel is equivocal, "police may only ask narrow questions designed to clarify the desire to obtain counsel."  Ray, 659 N.W.2d at 742.  "If an accused asserts his right to counsel, interrogation must cease unless the accused initiates further communication, exchanges, or conversations with the police and validly waives his earlier request for the assistance of counsel."  State v. Hannon, 636 N.W.2d 796, 804 (Minn. 2001).  "The state bears the burden of demonstrating [by a preponderance of the evidence] that any claimed waiver of Miranda rights was knowing, voluntary, and intelligent."  Ray, 659 N.W.2d at 742; State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995)(stating level of proof required).  The district court's factual determinations surrounding a defendant's statement will be accepted unless clearly erroneous.  Williams, 573 N.W.2d at 286.  But this court reviews de novo the district court's legal conclusions based upon its findings.  Ray, 659 N.W.2d at 742.

Appellant testified at the Rasmussen hearing that he requested an attorney twice while deputies were bringing him to the interview room before his interview with Feroni and that the deputies told him that he would have to talk to Feroni about his request. Appellant testified that he repeated his request for an attorney twice before Feroni turned the tape recorder on.  Feroni testified that appellant made no such request.

Appellant also testified that he requested an attorney once where the interview transcript indicates that what he said was inaudible.  This occurred early in the interview as Feroni was gathering preliminary information:

 

Feroni:

What's the date today. 29th. Go by Dan or Daniel? Which do you prefer?

Appellant:

Dan.

Feroni:

Your middle name is Jay?

Appellant:

Yup.  What am I being charged with (inaudible) what the deal is?

Feroni:

Don't know yet.  Don't know yet.  How old are you?

 

The district court found that appellant's claims that he requested counsel before the tape recorder was turned on and that he requested counsel where the transcript indicates that what he said was inaudible were not credible.  This court defers to the district court's determinations on credibility.  State v. Reiners, 664 N.W.2d 826, 837 (Minn. 2003).

Appellant also claims that he requested counsel during the interview, and his requests were ignored.

"Once a suspect unequivocally invokes his right to counsel, courts may admit responses to further questioning only on finding that the suspect (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right invoked."  State v. Hannon, 636 N.W.2d at 805 (quotation omitted).  Even if a suspect initiates further conversation, the state has the heavy burden to establish that subsequent events indicated a waiver of the suspect's right to have counsel present during the interrogation.  Id.

After obtaining appellant's name, birth date, address, and other preliminary information, Feroni informed appellant of his Miranda rights and told him that he could indicate that he understood each right by initialing the form.  Appellant stated, "I've thought about what I should do, but I'm not too sure what's going on."  Feroni responded:

Feroni:

Okay.  Well, let me just explain here, Dan.  You just sign right there and you'll get a copy when we're done.  That's a decision that you have to make Dan. All I want to do is talk to you about some things here and I want you to be able to tell your side of the story on everything.  Okay?

Appellant:

All right.

Feroni:

And it's up to you.  You have to make that decision. We want to be able to clear the air here and go from there.  We want your side of the story.  I think it's important and it's important to you.  So it's up to you what you'd like to do.  If you would like to talk about it, we'll just b.s. about it a little bit here and see where it leads us.

 

Feroni continued the interview.  He asked appellant about his methamphetamine addiction, his girlfriend, and about the items found in the apartment.  Appellant maintained that while he recognized that the items in the apartment were used to manufacture methamphetamine, the items were not his and he was not involved in the manufacture.  Appellant said that he and his girlfriend were staying in the apartment because they had no other place to stay.  Feroni asked several questions about what was going on in the apartment, and appellant said that he did not know.  After appellant denied that he was involved with anything in the apartment, the following exchange occurred:

Feroni:

What do you want, Dan.

Appellant:

You know what I want.  I want freedom.

Feroni:

But you're . . . hold on a second, I read your rights to you, you understand your right, correct?

Appellant:

Yeah. What do you want?

Feroni:

Did you, did you, did you say you want a lawyer?

Appellant:

I do want a lawyer but . . . you know, what do you guys want?  It's not mine, I'll tell you that.

Feroni:

I want you to make a decision.

Appellant:

All we can figure that out. (inaudible).

Feroni:

I want something.  I want you to make, I want you to make an intelligent decision.  If you [want] a lawyer, you'll get a lawyer.  Okay.  But I'm not going to talk to you.  Okay.  And.  You got it?  This is your opportunity right here, right now, to explain this stuff.

Appellant:

You're not goin [sic] talk to me with an attorney there.

Feroni:

 

Probably not, no.  It's up to you.

Appellant:

About all I can say is those other people are (inaudible) with something.  That's how, that's the only way.

 

Feroni then told appellant that he knew that appellant had been arrested before and that the circumstances involved similar chemicals.  Appellant repeated that he had nothing to do with the chemicals officers found in the apartment, and Feroni asked him what they were using the toluene for.  Appellant stated, "I don't want to talk about it. I want an attorney. (inaudible) believe it or not. (inaudible)."  Feroni then said, "Okay.  Well, we'll conclude.  If you want an attorney we'll get you an attorney and I'll conclude the interview here."  Feroni then turned off the recorder.  Because the tape recorder was turned off, there is no conclusive record as to what occurred next.[2]  Feroni testified that appellant told him that he wanted to help the police out by providing information concerning other methamphetamine manufacturers that he was aware of.  Feroni responded by telling him that he had concluded the interview.  When appellant repeated his offer, Feroni asked him if he wanted a lawyer, and appellant said no.  Feroni turned the tape recorder back on, and the following exchange occurred:

Feroni:

Now Dan, we had a little discussion and you were talking here just a few minutes ago. . . . when I was talking here earlier you said you wanted a lawyer.  Do you want a lawyer.

Appellant:

Not about this, at this time.

Feroni:

Okay. Have I made any threats to you?

Appellant:

No.

Feroni:

Have I made any promises to you?

Appellant:

No.

Feroni:

And this is all on your own accord, correct?

Appellant:

Yup.

Feroni:

Are you being honest?

Appellant:

Yes.

 

Appellant argues that he revoked his request for an attorney only as to questioning pertaining to other manufacturers, not as to the crime for which he was charged.  But appellant cites no authority for his argument that a request for counsel can be partially revoked.  If a suspect is fully advised "of his Miranda rights, and . . . indicates that he understands his rights and nevertheless gives an incriminating statement, the state is deemed to have met its burden of proving that the accused knowingly and intelligently waived his rights."  Williams, 535 N.W.2d at 286.  The state has met its burden of demonstrating by a preponderance of the evidence that appellant's waiver of his Miranda rights was knowing, voluntary, and intelligent.

Affirmed.

[1] Presumably, the district court is referring not to appellant's statements, but to the waiver of his right to counsel, which the state must prove was knowingly, intelligently, and voluntarily waived.  State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978).

[2] The Scales requirement seeks to curtail factual disputes about statements coerced by police overreaching.  State v. Williams, 535 N.W.2d at 289.  State v. Scales requires all custodial interrogation be recorded when questioning occurs at a place of detention and that failure to comply with the requirement may result in the suppression of any of defendant's statements.  518 N.W.2d 587, 592 (Minn. 1994).