In the Matter of the Welfare of: S.R.B., Child.

This opinion will be unpublished and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

A03-910

In the Matter of the Welfare of:

S.R.B., Child.

Filed May 11, 2004

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Olmsted County District Court

File No. J0-02-51061

Dodge County District Court

File No. J1-02-50229

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant S.R.B.)

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

Raymond F. Schmitz, Olmsted County Attorney, Karen A. Arthurs, Assistant County Attorney, Olmsted County Government Center, 151 Fourth St. S.E. Rochester, MN  55904; and

Paul Kiltinen , Dodge County Attorney, Dodge County Courthouse, 22 Sixth Street East, Department 12, Mantorville, MN  55955-2220 (for respondent State)

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On a stipulated record, the district court adjudicated S.R.B. delinquent for committing first-degree controlled substance crime.  S.R.B. appeals the adjudication, challenging the propriety of a stipulated trial without his personal waiver of trial rights, the sufficiency of the evidence to support the adjudication, and the search of his car.  Because it is undisputed that S.R.B. did not validly waive his trial rights, we reverse and remand for trial and do not consider S.R.B.'s sufficiency argument.  We affirm the denial of the motion to suppress evidence found in a consensual search of S.R.B.'s car.

F A C T S

            Olmsted County Sheriff's deputies discovered methamphetamine along with materials commonly used in the manufacture of methamphetamine in a search of a car driven by S.R.B.  The deputies had been dispatched to a salvage yard in response to a report of a suspicious vehicle that had pulled into the salvage-yard driveway at about midnight and extinguished its lights.

The first deputy to arrive observed a 1995 Dodge Neon parked in the driveway with two people in the front seat.  The deputy approached the car and spoke with S.R.B.  S.R.B. told him that his father owned the salvage yard, and he was waiting for him to open the padlocked gate so that S.R.B. and his passenger could work on the car.  The deputy noted that S.R.B.'s eyes were glassy and watering.  S.R.B. identified himself with a valid driver's license; the passenger appeared nervous and informed the police that his license was revoked.  The car was registered to S.R.B.'s parents.

The deputies told S.R.B. that if they could verify his story, they would leave.  They obtained the parents' phone number from S.R.B., and a deputy spoke with S.R.B.'s mother.  His mother said that she did not know S.R.B. was at the salvage yard and that S.R.B.'s father was sleeping and did not intend to go to the salvage yard.  The deputy asked S.R.B.'s mother if she objected to a search of the car for contraband, and she said she did not.

In the search of the car, the deputies found a small amount of methamphetamine and materials commonly used in the manufacture of methamphetamine.  The methamphetamine was discovered in a sunglasses case located in the center console of the vehicle.  The items indicating the manufacture of methamphetamine included ephedrine, lithium batteries, butane fuel, a substance that appeared to be anhydrous ammonia, funnels, a spatula, paper towels, gloves, and tape.  Both S.R.B. and his passenger were arrested.

In a second phone call to S.R.B's mother, the deputies obtained permission to enter the salvage yard to search for anhydrous ammonia or other substances that would indicate the manufacture of methamphetamine.  About fifty feet inside the gate, a deputy located a forty-pound tank with an attached hose and a coupler that appeared to fit anhydrous-ammonia couplers.  The police cleared the tank, which produced a strong odor of anhydrous ammonia.  When S.R.B.'s father was interviewed, he remembered that when he closed the business the day before, the tank had been moved from its usual location to a place nearer the gate.

            S.R.B. was charged with conspiracy to manufacture methamphetamine under Minn. Stat. § 152.021, subd. 2a (2000) and Minn. Stat. § 152.096 (2000), and fifth-degree possession of a controlled substance under Minn. Stat. § 152.025, subd. 2(1) (2000).  At an omnibus hearing, he challenged the scope of the seizure that preceded the search and his mother's authority to consent to the search of the car.

The district court denied the motion to suppress, and the state and S.R.B. submitted the case to the court on a stipulated record under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found that the state proved beyond a reasonable doubt that S.R.B. had conspired to manufacture methamphetamine but that the state had failed to prove beyond a reasonable doubt that he possessed a controlled substance.  S.R.B. appeals the constitutional validity of the adjudication and the search.

D E C I S I O N

I

In State v. Lothenbach the Minnesota Supreme Court adopted a procedure that preserves a defendant's right to appeal a pretrial suppression ruling without the necessity of trial when the defendant does not contest the facts underlying the charge.  State v. Verschelde, 595 N.W.2d 192, 196 (Minn. 1999).  The purpose of the Lothenbach procedure is to preserve a right of review for suppression issues when those issues are dispositive, not to test the sufficiency of evidence.  See Lothenbach, 296 N.W.2d 854, 857-58 (outlining procedure); see also State v. Busse, 644 N.W.2d 79, 88-89 (Minn. 2002) (reaffirming purpose of Lothenbach procedure to submit a case on stipulated facts to preserve pretrial appeal and rejecting right to review sufficiency of evidence).  Nonetheless, a defendant entering into a Lothenbach stipulation is still waiving the right to trial.  Minn. R. Crim. P. 26.01, subd. 3.  For that reason, a defendant using the Lothenbach procedure must, in writing or orally on the record, waive his trial rights, including the right to testify, to hear and question the prosecution witnesses, and to call witnesses on his behalf.  State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986) (concluding that record was inadequate to reflect defendant's full and free waiver of trial rights). 

Although the Minnesota Rules of Juvenile Procedure do not specifically provide for a trial on stipulated facts, that procedure has been applied in juvenile proceedings.  See In re Welfare of R.J.E., 642 N.W.2d 708, 711 (Minn. 2002) (applying Lothenbach procedure to contested trial in juvenile proceedings).  The juvenile rules parallel the rules of criminal procedure in requiring a formal waiver of the right to trial when entering a plea of guilty.  See Minn. R. Juv. Delinq. P. 8.04, subd. 1(B) (requiring written or on-record waiver of trial rights).  The trial rights to be waived in a juvenile proceeding are essentially the same as the counterpart rights in Minn. R. Crim. P. 26.01:  the right to trial, including the right to have the state prove the elements of the offense; the right to be presumed innocent; the right to remain silent; the right to call witnesses to testify; and the right to confront and cross-examine witnesses. 

The record does not reflect that S.R.B. personally waived his right to trial before proceeding under Lothenbach.  The state agrees that the absence of S.R.B.'s personal waiver of his trial rights requires a new trial.  Because the necessity of a new trial obviates a sufficiency-of-the-evidence review, in addition to that review being unavailable under a Lothenbach procedure, we do not address that claim.

II

Although we reverse and remand for a new trial or a proper waiver of trial rights, S.R.B.'s challenge to the validity of the car search will affect the case on remand and we, therefore, consider it in this appeal.  See State v. Bunce, 669 N.W.2d 395, 398 (Minn. App. 2003) (reviewing validity of search before remanding for new trial or proper waiver), review denied (Minn. Dec. 16, 2003).  S.R.B. challenges the search on two grounds:  first, the scope and duration of the seizure preceding the search, and, second, the validity of the consent to the search.

S.R.B. argues that the scope and duration of the detention leading up to the request for the search exceeded the purpose of the initial encounter.  See State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003) (stating that scope and duration of traffic stop must be limited to justification for stop).  If a detainee's responses or other circumstances give rise to a reasonable, articulable suspicion of additional criminal activity within the time necessary to resolve the original purpose of the stop, an officer may broaden the inquiry to satisfy those suspicions.  State v. Wiegand, 645 N.W.2d 125, 136 (Minn 2002).  Reasonable suspicion is determined from the totality of the circumstances.  State v. Lande, 350 N.W.2d 355, 357-58 (Minn. 1984). 

We conclude that the search of the car did not impermissibly exceed the scope of the initial stop.  The police first stopped the car on a report of a suspicious vehicle parked without headlights in front of the locked gate of a business around midnight.  Thus, at the time of the stop, the officers had a reasonable, articulable suspicion of possible criminal activity, such as burglary, and could conduct further investigation to determine why S.R.B. and his passenger were at the salvage yard at that hour.  The officers took steps to verify S.R.B's story that his father was coming to open the gate.  When the telephone call to S.R.B.'s parents showed that this explanation was fabricated, it was reasonable for the police to make further inquiry.  Because the initial suspicion was not dispelled, the police did not exceed the scope and duration of the initial seizure.

A valid consent to search is a well-established exception to the warrant requirement under the United States and Minnesota Constitutions.  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).  A third party has actual authority to consent to a search if that person has "common authority over or other sufficient relationship to the premises or effects sought to be inspected."  United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974).  This principle of common authority rests on mutual use of the property by persons who, for most purposes, have joint access or control.  Id. at 171 n.7, 94 S. Ct. at 993 n.7.  Although Matlock involves a search of a home, its principles apply equally to the search of a vehicle.  State v. Frank, 650 N.W.2d 213, 216 (Minn. App. 2002). 

The car that S.R.B. was driving was titled, registered, and insured in the names of S.R.B.'s parents.  S.R.B. testified that he purchased it from them for $500.  According to S.R.B. he took care of maintenance and had exclusive use of the car; his parents had a set of keys for emergencies.  S.R.B.'s mother also testified that this was the arrangement but explained that S.R.B. purchased the car from them for $300 plus money for insurance.  S.R.B. argues that because he was buying the car from his parents and had exclusive use, mutual use was not established so his mother could not validly consent to a search of the car.  This argument ignores the central fact that, because the car was still registered to S.R.B.'s parents, they were the undisputed owners of the vehicle.  See Minn. Stat. § 169.01, subd. 26 (2000) (defining owner as person who holds legal title to vehicle).  The parents' ownership conforms to Minnesota law, that subject to certain exceptions not relevant here, a person under eighteen is not allowed to own a car in Minnesota.  See Minn. Stat. § 168.101 (2000).

Applying the reasoning of Matlock, S.R.B. assumed the risk that, as owners of the vehicle, his parents could permit the car to be searched.  Matlock, 415 U.S. at 171, 94 S. Ct. at 993.  This assumption is buttressed by the nature of the parent-child relationship that supports a parent's ability to consent to the search of the child's property.  See, e.g., State v. Schotl, 289 Minn. 175, 178, 182 N.W.2d 878, 880 (1971) (holding that defendant's mother had possessory interest in house in which defendant had room, so that even though defendant had made one payment to his mother for purposes of staying there, her acquiescence excused warrantless search of room).  The district court did not err in concluding that S.R.B.'s mother had actual authority to consent to a search of the car.

            The district court alternatively concluded that the doctrine of apparent authority provided legal justification for the search.  This doctrine provides that even if common authority does not actually exist, consent to entry remains valid if, under an objective standard, the officer reasonably believes that a third party had 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)).  We agree that the fact that the car was registered to S.R.B's parents provided the officer with a sufficient objective basis to believe that the mother had authority to give consent to search the car registered to her.  See Thompson, 578 N.W.2d at 740. 

            Finally, we reject S.R.B.'s argument that the holding in State v. Licari, 659 N.W.2d 243 (Minn. 2003), invalidates his mother's consent.  The facts and circumstances of Licari are readily distinguishable because the purported consent in Licari was obtained from a landlord to search a storage unit.  Id. at 247.  The commercial context of the landlord-tenant relationship is not comparable to S.R.B.'s parents' ownership of the car their son was driving.  Unlike the circumstances of this case, the officer's inquiry in Licari failed to establish actual or apparent authority to search.  Id. at 254.  Because of the parents' ownership of the car and the parent-child relationship, S.R.B.'s mother had both actual and apparent authority to consent to the search of the car.

Affirmed in part, reversed in part, and remanded.