State of Minnesota, Respondent, vs. Jose Francisco Monciviaz, 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This opinion will be unpublished and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

A03-1238

 

State of Minnesota,

Respondent,

 

vs.

 

Jose Francisco Monciviaz,

Appellant.

 

Filed ­­­June 1, 2004

Affirmed

Harten, Judge

 

McLeod County District Court

File No. K0-02-1226

 

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

 

Michael K. Junge, McLeod County Attorney, 830 Eleventh Street East, Suite 112, Glencoe, MN 55336 (for respondent)

 

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

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, 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 for second-degree controlled substance crime, arguing that police unlawfully requested consent to search without having articulable suspicion of any criminal violation.  Appellant also challenges his sentence, arguing that it violates the agreement under which appellant entered a Lothenbach stipulation.  Because the police had reasonable, articulable suspicion to request consent to search and because appellant failed to object at his sentencing hearing, we affirm.

FACTS

            On 16 October 2002, two Glencoe police officers attempted to execute an arrest warrant for Marvin Lazaro-Rojas.  When the officers knocked on the door at the address listed on the warrant, Ricardo Bazan answered.  Bazan told the officers that Lazaro-Rojas no longer lived at that address and showed them pieces of mail that had arrived for him.  The officers asked Bazan whether anyone else was in the apartment, and he admitted that another individual was sleeping in one of the two bedrooms.  The officers requested permission to search the apartment for Lazaro-Rojas and to identify the sleeping individual.  Bazan consented to the search.

            An individual in the northwest bedroom identified himself as Miguel Juarez, born 31 September 1973.  The officers took Juarez and Bazan to the kitchen area.  Upon contacting dispatch, the officers were advised that September does not have 31 days in any year.  Juarez then took out his wallet, which contained other identification cards, social security cards, and birth certificates with various names on them.  Juarez later admitted that his name is actually Joaquin Juarez Ramirez Collazo.  One officer asked Collazo if there were additional fake identification cards in the apartment.  After Collazo said no, the officer asked if he could search the bedroom for more cards.  Collazo led the officer back to the bedroom, raised his arms, and said, "Look."

            On a dresser, the officer found a cut straw and a white powdery substance on top of a plastic calling card.  The officer suspected the white powder to be either cocaine or methamphetamine and asked Collazo to whom the straw belonged.  Collazo replied that it belonged to his uncle.[1]  The officer continued to search and found a clear plastic jar underneath the dresser.  Inside the jar was a large plastic bag that contained several smaller bags with white powdery substance inside.[2]  The officer brought the suspected narcotics, other cut straws, and an electronic scale to the kitchen.

After the items had been placed on the kitchen table, appellant Jose Francisco Monciviaz entered the apartment.  The officers asked him whether he had seen the suspected narcotics and other items before.  Appellant admitted that the items were his.

Appellant was charged with first-degree controlled substance crime (possession of more than 25 grams of cocaine), which was subsequently amended to second-degree controlled substance crime (possession of more than six grams of cocaine).  Appellant moved to suppress the evidence obtained in the apartment, arguing that the police did not have the right to enter or remain in the apartment after it was determined that Lazaro-Rojas was not present.  The district court denied the motion.

Appellant waived his right to a jury trial, and the case was submitted to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  At the Lothenbach hearing, the prosecutor informed the district court that the state would, regarding sentencing, request "the bottom of the box of whatever he actually fits."  The district court found appellant guilty.  At sentencing, a different prosecutor requested the presumptive sentence, stating that "[w]hile this law is admittedly tough, 58 months, that is the guidelines and we would ask the Court impose that."  The district court sentenced appellant to 58 months.

Appellant now challenges the search of the bedroom and his sentence.

D E C I S I O N

1.         Search

When reviewing pretrial orders on motions to suppress evidence, appellate courts 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).

Before searching an individual's residence, law enforcement generally must first obtain a warrant.  State v. Bunce, 669 N.W.2d 394, 398 (Minn. App. 2003), review denied (Minn. 16 Dec. 2003).  But a warrant is unnecessary when a person with common authority over the residence consents to the search.  State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999).  The scope of a search is limited by the terms of its authorization.  Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401 (1980).  Law enforcement may expand the scope of an investigation to include "other suspected illegal activity" only where there is reasonable, articulable suspicion of the other illegal activity.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80 (1968), to address the scope of traffic stops).  In the absence of articulable suspicion, a consent search during an investigation that exceeds the scope of the justification of the underlying investigation is invalid.  State v. Fort, 660 N.W.2d 415, 416 (Minn. 2003).

Appellant argues that, although the officers had the authority to be in the apartment after Bazan consented to the search for Lazaro-Rojas, the officers were not entitled to ask Collazo for consent to search the bedroom because they lacked reasonable, articulable suspicion of other criminal activity.  We disagree.  After an officer found Collazo in the bedroom and requested identification, the two officers discovered that Collazo's identification card was fake and that he possessed other fake forms of identification in his wallet.  The officers had a particularized reason to expand the investigation at the residence and request Collazo's consent to search the bedroom for more fake identification cards.

Appellant argues that the officers did not testify that a further search of the bedroom might uncover evidence that Collazo was actually Lazaro-Rojas.  But there is no requirement that the "other suspected illegal activity" be related to the purpose of the underlying investigation.  See Wiegand, 645 N.W.2d at 137 (requiring reasonable, articulable suspicion for illegal drug activity to expand the scope of a traffic stop for a routine inventory violation).  Appellant also argues that the officers did not testify that a further search would reveal other false identification cards.  But the officer specifically asked Collazo to allow a continued search of the bedroom for more fake identification cards, indicating that the officer believed more may be present in the bedroom.

Accordingly, the evidence obtained during the search of appellant's bedroom was lawfully admitted.

2.         Sentencing

            Appellant challenges his sentence, arguing that it violates his agreement to submit the case on stipulated facts.  Appellant argues that, because the prosecutor at the Lothenbach hearing agreed to request the "bottom of the box," or low end of the presumptive range, the prosecutor at the sentencing hearing violated the agreement by requesting the presumptive term.  We need not address this issue because appellant failed to raise it at the district court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (declining to consider matters not argued and considered in the district court).

Even if appellant's sentencing objection was reviewable, we note that neither appellant nor his attorney said anything about the purported agreement at his sentencing hearing.  This case does not involve a plea agreement; appellant was found guilty following a bench trial on stipulated facts.  A Lothenbach stipulation provides no basis for an agreement as to sentence.  State v. Verschelde, 585 N.W.2d 429, 432 (Minn. App. 1998), aff'd on other grounds, 595 N.W.2d 192, 195 (Minn. 1999) (agreement to stipulate pursuant to Lothenbach is different from a plea agreement, regardless of the labeling used by the parties and district court).

            Affirmed.

 

[1] It was later discovered that Joaquin Juarez Ramirez Collazo is appellant Jose Francisco Monciviaz's son, not nephew.

 

[2] The Minnesota Bureau of Criminal Apprehension tested the powdery substance in five of the smaller plastic bags and confirmed that it consisted of 14.1 grams of cocaine.