Opinion
No. C7-02-1669.
Filed: July 29, 2003.
Appeal from Polk County District Court, File No. C0011108.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Greg Widseth, Polk County Attorney, Crookston Professional Center, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges her conviction for drug offenses on the ground that the evidence used against her was obtained in an illegal search and should have been suppressed. Because the officers had a reasonable, articulable basis for extending the scope of the traffic stop and for requesting the search, and because the search of the car and of appellant's purse was consensual, we affirm.
FACTS
Appellant was a front-seat passenger in a car driven by her husband. Their children were also passengers. The car was stopped for an equipment violation. While speaking to the driver of the car, one of the officers noticed an odor of alcohol and an odor of marijuana. The officer also noticed that appellant was impatient and incoherent, that her speech was slurred, and that she looked "loaded."
The officer asked appellant's husband if he had been drinking. When appellant's husband replied that he had had a beer, the officer administered a breath test. The test showed no signs of alcohol. The officer was aware that both appellant and her husband had a history of drug use. When the officer asked appellant's husband about his drug habit, he told the officer that he was trying to quit. When the officer asked appellant's husband about appellant's drug habit, he replied that he really did not know how appellant was doing. The officer asked appellant's husband if there were any drugs in the car, and he said no. The officer then asked if he could search the car, and appellant's husband consented.
When the officer approached the front passenger side of the vehicle, he asked appellant if he could search her purse. She consented. The officer testified that as she was handing him her purse
her hand goes into the purse and that's when I see the big baggie of marijuana [and] she's trying to give me the purse and take out the bag of marijuana at the exact same time.
Based on what the officer found in her purse, appellant was charged with several drug-related offenses. She moved to suppress the evidence obtained against her as the product of an illegal search and seizure. In her motion to suppress, appellant argued that the evidence was seized in violation of her Fourth and Fifth Amendment rights under the United States Constitution and Article 1 of the Minnesota Constitution. The district court denied appellant's motion to suppress because it found that the stop was proper and that appellant consented to the search.
DECISION
Appellant challenges (1) the request by the officer to search the vehicle; and (2) the validity of appellant's consent to the search of her purse. Appellant does not challenge the validity of the stop.
On review of a pretrial suppression order, this court "independently review[s] the facts and determine[s], as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted). Where a party challenges the district court's findings of fact, this court reviews those findings under a clearly erroneous standard of review. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
I.
Appellant argues that by requesting to search the vehicle the officers impermissibly extended the scope of the traffic stop because they did not have reasonable, articulable suspicion of criminal activity.
Law enforcement may expand a permitted stop to investigate suspected illegal activity if there is reasonable, articulable suspicion of such other 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 (1968)). In the absence of reasonable, articulable suspicion, "a consent-based search obtained by exploitation of a routine traffic stop that exceeds the scope of the stop's underlying justification is invalid." State v. Fort, 660 N.W.2d 415, 416 (Minn. 2003).
Determination of reasonable, articulable suspicion requires consideration of the totality of the circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). In arriving at a reasonable suspicion of criminal activity, an officer may make inferences and deductions that might elude an untrained person. Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). But the officer must demonstrate objective facts to justify that suspicion; the officer may not base the suspicion upon a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995).
Here, the officer who initiated the search testified that he smelled both alcohol and marijuana upon approaching the car. We have held that the odor of marijuana in a vehicle provides probable cause to search the vehicle's occupants. State v. Doren, 654 N.W.2d 137, 142 (Minn.App. 2002) (citing State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973)). Appellant points out that another officer did not smell marijuana. But the first officer initiated the search, and appellant does not challenge his credibility. The smell of alcohol and marijuana gave the first officer reasonable, articulable suspicion of criminal activity, thus allowing him to expand the scope of the traffic stop and request permission to conduct a search. The consent obtained from appellant was not obtained as the result of an improper expansion of a routine traffic stop, and the district court properly denied appellant's motion to suppress.
II.
Appellant also argues that her consent to the search of her purse was not voluntary because a reasonable person in the same circumstances would not have felt free to decline such a request. The state argues that appellant waived this argument because she did not raise it at the omnibus hearing.
A review of the record indicates that appellant did not raise this argument to the district court. This court will generally not consider matters not argued and considered in the district court, including constitutional questions of criminal procedure. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In addition to not considering matters not argued in the court below, this court does not determine factual issues on appeal. State v. Kates, 616 N.W.2d 296, 299 (Minn.App. 2000) (quoting Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966)).
To consider appellant's argument at this point would require this court to make a factual determination of voluntariness. See State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (finding that whether consent to search was voluntary is a fact question determined from the totality of the circumstances). Because the district court did not have an opportunity to consider the voluntariness of the purse search, we decline to address appellant's argument.