State of Minnesota, Appellant vs. Steven Allen Gauster, Respondent.

State of Minnesota, Appellant vs. Steven Allen Gauster, Respondent. A07-488, Court of Appeals Unpublished Decision, October 9, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

 IN COURT OF APPEALS
A07-0488
 

State of Minnesota,
Appellant,

vs.

Steven Allen Gauster,
Respondent.

 

Filed October 9, 2007

Reversed and remanded

Halbrooks, Judge

 

Otter Tail County District Court

File No. K9-06-1650

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

David J. Hauser, Otter Tail County Attorney, Ryan C. Cheshire, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for appellant)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this appeal from a pretrial order suppressing evidence of first-degree controlled-substance offenses that resulted in dismissal of the charges, the state argues that the district court clearly erred in determining that the police impoundment and subsequent inventory search of respondent's vehicle violated his Fourth Amendment rights.  Because we conclude that impoundment was reasonable and that the inventory search was conducted according to standard department policy, we reverse the district court's suppression ruling and remand for trial.

FACTS

            At approximately 3:00 p.m. on August 25, 2006, respondent Steven Allen Gauster was sitting in a parked car on a rural county highway.  Deputy Sheriff Scott Wagner stopped to offer assistance.  Respondent stated that he owned the vehicle.  While conversing with respondent, Deputy Wagner detected an odor of alcohol on respondent's breath and observed a 12-pack of beer with one bottle missing on the front seat.  According to the deputy, respondent gave inconsistent explanations of where he had come from, first stating Underwood and later, Clitherall.  He told Deputy Wagner that he was waiting for friends who were following him in other vehicles but did not know where he was going.  When asked whether he had an open container in the car, respondent said that he did not.  Deputy Wagner then suggested to respondent that he place the remaining unopened bottles of beer in the trunk, and respondent complied. 

            As Deputy Wagner was pulling away, he ran the vehicle's license plate through his computer and learned that the vehicle's owner had a suspended driver's license.  Deputy Wagner returned, stopped behind respondent's still-parked vehicle, and activated his overhead lights.

            Deputy Wagner then asked respondent for identification and proof of insurance.  Respondent provided his driver's license but told the deputy that he had no proof of insurance, although he thought that his fiancée was going to take care of it.  Respondent handed the deputy the business card of an insurance agency.  Deputy Wagner attempted to contact the office by telephone but was unsuccessful.  Deputy Wagner subsequently advised respondent of his license suspension and his inability to verify respondent's insurance.  Standing next to the driver's window, Deputy Wagner observed several bottle caps on the floor of the passenger side of the vehicle and again asked respondent if he had any open containers of alcohol in the car.  Respondent stated that he did not.  But when Deputy Wagner walked around to the passenger side of the vehicle, he saw a partially consumed open bottle of beer underneath the driver's seat. 

            Deputy Wagner testified that at that point, he was going to cite respondent for driving after his driver's license had been suspended under Minn. Stat. § 171.24, subd. 1 (2006); lack of proof of insurance under Minn. Stat. § 169.791, subd. 2 (2006); and possession of an open container of an alcoholic beverage in a vehicle under Minn. Stat. § 169 A. 35, subd. 3 (2006), but he did not intend to arrest respondent.  Deputy Wagner decided to impound the vehicle based on respondent's inability to drive it, given the lack of proof of insurance and respondent's suspended license, and to give respondent a ride to wherever he wanted to go.  The deputy informed respondent of his decision and asked him to step out of the vehicle so that he could prepare to have the vehicle towed. 

            Whether or not respondent asked Deputy Wagner if he could make his own arrangements for a tow is disputed.  Deputy Wagner testified at the omnibus hearing that respondent did not make such a request.  But both respondent and Deputy Wagner testified that respondent asked the deputy if he could have someone come drive the vehicle away.  Deputy Wagner stated that he told respondent "no" because there was no proof that the vehicle was insured.

            During an inventory search associated with impoundment, Deputy Wagner found a glass pipe with drug residue beneath the driver's seat.  Deputy Wagner also found additional open containers of beer under the driver's seat, and two packages of a granular substance, later confirmed to be methamphetamine, in the trunk.  Respondent was subsequently arrested and charged with first-degree controlled-substance crime (possession with intent to sell ten grams or more) under Minn. Stat. § 152.021, subd. 1(1) (2006), and first-degree controlled-substance crime (possession of 25 or more grams of methamphetamine) under Minn. Stat. § 152.021, subd. 2(1) (2006). 

            Respondent moved to suppress the evidence from the search.  The district court granted respondent's motion and dismissed the charges. 

This appeal follows.

D E C I S I O N

            The state may appeal as of right to this court any pretrial order, including a probable-cause dismissal of an order based on questions of law.  Minn. R. Crim. P. 28.04, subd. 1(1).  Normally, an appellate court

will only reverse a pre-trial decision of the [district] court suppressing evidence if the State demonstrates "clearly and unequivocally that the [district] court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial."  However, when reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the [district] 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) (citations omitted).

Respondent concedes that critical impact is present here because the suppression of the evidence resulted in dismissal of the charges.  We therefore examine whether the district court erred as a matter of law.

            People have the right "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."  U.S. Const. amend. IV; see also Minn. Const. art. I, § 10.  But an inventory search "conducted pursuant to a standard police procedure prior to lawfully impounding an automobile [is] not unconstitutional under the Fourth Amendment."  State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977).  Inventory searches are reasonable because they are administrative or caretaking functions that "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger."  Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987).  As a result, "[t]he policies behind the [search] warrant requirement are not implicated in an inventory search, nor is the related concept of probable cause."  Id. at 371, 107 S. Ct. at 741. 

            The Minnesota supreme court has stated:

In determining whether an inventory search is reasonable, we must therefore 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.

 

Goodrich, 256 N.W.2d at 510. 

As a general matter, impoundment is reasonable when, due to incapacity or absence, no driver is available to drive the car.  City of St. Paul v. Myles, 298 Minn. 298, 300, 304, 218 N.W.2d 697, 698-99, 701 (1974).  Here, Deputy Wagner testified on direct examination regarding the bases for his decision to impound respondent's vehicle:

A         I told him at some point that the vehicle is going to be towed because it was suspended driving status and the issues with the insurance coverage, and asked him to getstep out of the vehicle andso I couldso I could prepare to have the vehicle towed.

Q         Why were you going to have the vehicle towed?

A         Becauseas I stated, because of his suspended driving status, insurance coverage issues.  Again, I cited him for no proof of insurance and that was thebut I believe that he had no insurance on the vehicle as well as open containers of alcohol.

Q         Okay.  So at the time you made the decision to have the vehicle towed, you knew that he did not have valid driving privileges, correct?

A         That's right.

Q         You knew that he did nothad not shown you proof of insurance?

A         Yes, sir.

Q         You knew that there was an open container in the vehicle?

A         Yes, sir.

Q         Which he had previously denied?

A         That's right.

Q         You smelled alcohol?

A         That's right.

Q         What did you do next?

A         At some point I asked him to step out of the vehicle and be seated in my car.  He was informed that he was not going to be placed under arrest at this point.  Asked him if he would be seated in my car for my safety while I searcheddid an inventory search of the vehicle prior to it being towed.  He was compliant.   And he did 

Q         So youhe was placed in your squad car?

A         That's right.

Q         All right.  But you also informed him he wasn't going to be placed under arrest?

A         Yes, I did.

Q         All right.  And then you conducted an inventory search of his vehicle.

A         That's correct.

Q         Why did you conduct an inventory search of the vehicle?

A         Because that's our policy.  The policy mandates that we do an inventory search at the scene prior to towing a vehicle.

 

            Some proof of standard police procedures governing how an inventory search is to be conducted is necessary to ensure that the inventory search is conducted in an administrative, and not an investigatory, manner.  Bertine, 479 U.S. at 372, 107 S. Ct. at 741 ("In the present case, . . . there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation."); South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 3098-99 (1976) (stating "inventories pursuant to standard police procedures are reasonable").  In this case, the state provided the district court with the Otter Tail County Sheriff's Department policy on inventory searches.  And there is no suggestion, much less any evidence, that Deputy Wagner acted in bad faith or for the sole purpose of investigation by his course of conduct here.

            Relying on Goodrich, the district court ruled that the state "established no justification for impoundment of the [respondent's] vehicle, and thus there was no justification for the search of it."  We disagree because we conclude that the facts of Goodrich are distinguishable.

            The Staples law-enforcement officer in Goodrich arrested the defendant for driving under the influence and began to search the vehicle over the defendant's objection.  256 N.W.2d at 508.  The officer also learned that the vehicle registration was not in the defendant's name.  Id.  Defendant's vehicle was parked in a gas station in town at the time.  Id.  Because this occurred in a small town, the officer knew the defendant and his family.  Id. 

            The defendant in Goodrich asked the officer to permit him to call his brother, and the officer allowed him to do so.  Id.  According to the defendant, he called in order to avoid towing and storage charges.  Id.  In response to the call, the defendant's brother arrived at the gas station and asked if he could drive the vehicle home.  Id.  The officer, who had already called a tow truck, said no.  Id.  In a subsequent inventory search of the vehicle, the officer found amphetamines and LSD.  Id.  The defendant was later convicted of possession of a controlled substance.  Id. at 507.

            On appeal, the Minnesota Supreme Court analyzed whether the impoundment of defendant's vehicle was reasonable after he had made other arrangements for the disposition of the automobile.  Id. at 509-12.  The supreme court reversed the conviction, concluding that the evidence obtained as a result of the violation of defendant's Fourth Amendment rights was inadmissible.  Id. at 511.  Specifically, the supreme court stated:

                        The sole remaining reason given in this case for impoundment and inventory, the reason repeatedly espoused by Chief Carr and Officer Winter, is the necessity of protecting the arrested individual's property from theft and the police from claims arising therefrom.  But the defendant's assumption of responsibility for his property obviated that necessity in this case.  Defendant did not ask to simply leave his locked automobile on the street, but arranged to have his mother or brother drive it home.  The gratuitous assumption of custody by the police on the facts of this case gave rise to an invasion of defendant's privacy protected by the Fourth Amendment.

 

Id. 

            The district court here read Goodrich to require a law-enforcement officer to give an individual the opportunity to make alternative arrangements for his vehicle if he cannot drive it for some reason.  The district court stated in its order that

            [t]he deputy could have and should have given the [respondent] an opportunity to arrange his own tow, whether or not the [respondent] had specifically requested it.  It was a private towing company which the deputy called to tow the vehicle to the impound lot.  The deputy could just as well have authorized that towing company to tow the vehicle to a place of the [respondent's] choosing.

 

            We do not understand Goodrich to impose such a requirement on law enforcement.  The supreme court's analysis of the reasonableness of the impoundment in Goodrich focused on the case-specific facts, i.e., that the investigatory stop occurred in a small town, the officer knew the defendant and his family, the officer permitted the defendant to make a phone call, and the defendant's brother arrived at the scene, ready to drive the car home, before the officer conducted the search of the vehicle.  256 N.W.2d at 508.  Further, as the supreme court noted, the sole reason for impoundment by law enforcement in Goodrich was the necessity to protect the defendant's property from theft and the police from any potential claims.  Id. at 511.

This case presents very different circumstances.  Because respondent could not demonstrate that his vehicle was insured, it could not be driven by him or anyone else.  It is a crime in Minnesota for an owner of a vehicle to operate the vehicle, or permit its operation on a public highway, knowing or having a reason to know that the vehicle is not insured in compliance with the Minnesota No-Fault Automobile Insurance Act.  Minn. Stat. § 169.797, subd. 2 (2006).  Nevertheless, respondent argues, and the district court agreed, that an officer must give a stopped, incapacitated individual the option of arranging for an independent tow despite the fact that the officer has a reasonable basis to impound the vehicle, conducts an inventory search according to department policy, and performs procedures in good faith.  That argument has been rejected before.

            As the U.S. Supreme Court stated in Bertine, in response to the argument that the defendant could have been offered the opportunity to make other arrangements for the safekeeping of his property:

[W]hile giving Bertine an opportunity to make alternative arrangements would undoubtedly have been possible, we said in Lafayette:

 

"[T]he real question is not what ‘could have been achieved,' but whether the Fourth Amendment requires such steps . . . [."]

"The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive' means."

 

                        We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.

 

Bertine, 479 U.S. at 373-74, 107 S. Ct. at 742 (quoting Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610 (1983) (emphasis in original)) (other citations omitted).

            Because we conclude that the district court erred in its determination that, on this record, respondent's Fourth Amendment rights were violated, we reverse and remand for trial.

            Reversed and remanded.

 

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