Opinion
No. CX-02-239.
Filed January 28, 2003.
Appeal from the District Court, St. Louis County, File No. K200600872.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, and Alan Mitchell, St. Louis County Attorney, (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Lansing, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Jarred Dean Lind contends that the district court erred in denying his motions to suppress evidence and testimony and to appoint substitute defense counsel. Because the district court did not err in its rulings, we affirm.
FACTS
Duluth police received reports of two separate armed robberies on August 10, 2000. They located two young males who fit the descriptions of the robbers and were able to arrest one, while the other fled. The investigation focused on appellant Jarred Dean Lind, who the police were told lived in the basement level of 315½ West 3rd Street, the entry door to which was painted blue.
Officers obtained a search warrant for that address. The applicant for the warrant stated in his affidavit that the place to be searched was the basement area of 315½ West 3rd Street and that the exterior door to that location was blue.
When the officers arrived at the residence, they discovered that the basement level had a separate address, 315 West 3rd Street. Before executing the warrant, officers telephoned the issuing district judge, explained the address error, and received the judge's authorization to search 315 instead of 315½ West 3rd Street. During the search, they found Lind on the premises and arrested him.
With Lind in custody, two officers questioned him about the robberies, and they tape-recorded the interview. They began by advising Lind of his Miranda rights. They then told Lind that he was under arrest for robbery and asked if he understood his rights and would be willing to talk to them. Lind replied: "I'd rather have an attorney be present." One of the officers then indicated that if Lind wanted to speak with an attorney they would have to stop talking. Lind responded: "you can go ahead and question me I ain't got nothing to hide or anything." The officer stated: "Well you've, you mentioned that you wanted an attorney we're gonna have to stop talking to you now. Okay?" Lind replied: "All right." The officer stopped the tape.
According to the officer's omnibus-hearing testimony, after he turned off the tape-recorder, Lind kept talking to another officer about his alibi. The officer then turned the recorder on again and continued with the interrogation.
Later in the interrogation, one of the officers again asked Lind if he understood his rights and was willing to talk to the police without an attorney. Lind said, "I will `cuz it's on a recording." The following occurred:
[Officer No. 1:] You know. So that, I mean, so that's, so you understand you're under no obligation to talk to us, right? Okay.
[Officer No. 2:] Yes/no?
[Lind:] Yes.
[Officer No. 2:] You understand that? Okay. So should we continue then? Is that what you want to do?
[Lind:] Yeah.
Eventually Lind admitted committing both robberies, but he later recanted.
After being charged with two counts of aggravated first-degree robbery and two counts of felon in possession of a firearm, Lind moved to suppress evidence obtained from the search of his residence and the admission he made during the police interrogation. The district court denied the motions. Lind also moved for the appointment of a different public defender from the one representing him. The court denied that motion. Eventually, Lind agreed to submit the case to the court on stipulated facts. The court found Lind guilty of the crimes charged. On appeal, Lind alleges that the court's denial of his motions to suppress and to appoint a substitute public defender was in error.
DECISION
When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, 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).
Search Warrant
Lind first contends that the original search warrant did not authorize a search of his residence and that the corrected warrant was invalid because the police failed to comply with proper procedures in obtaining it.
To be valid, a search warrant must particularly describe the place to be searched. U.S. Const. amend. IV; Minn. Const. art I, § 10. In assessing the sufficiency in a warrant of the description of the place to be searched, the test is
whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.
United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979).
On the basis of the warrant itself, the application, and the supporting affidavit, it is clear that the district court originally authorized a search of a basement residence with a blue entry door located at 315½ West 3rd Street. The address was wrong, being ½ a number off. But even with the slightly incorrect address, the description allowed the officers to locate and identify the premises with reasonable effort. And because the description contained more than just a number, identifying both the precise location as a basement residence and the particular color of the entry door to that location, there was no reasonable probability that another place might be mistakenly searched. The warrant satisfied the Gitcho test. Furthermore, State v. Gonzales holds that an incorrect address will not invalidate a search warrant if, because of the applicant's familiarity with the place to be searched, there is no danger the wrong residence will be searched. State v. Gonzales, 314 N.W.2d 825, 827 (Minn. 1982).
Because the original warrant was valid, we need not address Lind's contention that proper procedures for a "telephonic" search warrant were not followed.
Lind secondly argues that two bandanas the police seized while searching his residence were not listed in the warrant and, therefore, should have been suppressed. The remedy for an improper seizure of evidence because it is beyond the scope of the warrant is the suppression of that evidence. State v. Monsrud, 337 N.W.2d 652, 661 (Minn. 1983).
The bandanas were not specifically listed as such in the warrant. And even though "clothing" is mentioned, the items sought are particularly described. Thus, the bandanas were beyond the scope of the warrant, but the court refused to suppress the bandanas.
Nevertheless, it does not appear from the record that the bandanas became evidence in the factual stipulation, or that the district court relied on the bandanas as evidence, or that the court made any findings premised in any way on the bandanas. We do not review evidence that is not included somehow in the court's findings. State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000). Thus, there was no error in the court's refusal to suppress the bandanas.
Admissions
The district court held that Lind failed to make an unequivocal demand for an attorney during his interrogation and thus denied Lind's motion to suppress his admissions. Lind contends that his request for an attorney was clear, unequivocal, and repeated, and, thus, the court erred in denying his motion. We will not overturn the district court's factual determination of whether a defendant invoked his right to counsel unless the determination is clearly erroneous. State v. Miller, 573 N.W.2d 661, 671 (Minn. 1998).
There is no dispute that Lind unequivocally requested counsel just before the officers turned off the tape recorder. The issue is whether Lind reinitiated communications with the police. We follow Edwards v. Arizona on this issue.
The bright-line rule of Edwards establishes a duty on the part of police to cease interrogation after a suspect invokes his right to counsel "unless the [suspect] himself initiates further communication, exchanges, or conversations with the police."
State v. Munson, 594 N.W.2d 128, 140 (Minn. 1999) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885 (1981)).
Lind concedes that he eventually unequivocally waived his right to counsel but points out that he did so only after a lengthy conversation following his initial request for counsel. At issue then is the interrogation that occurred between the tape-recorder being turned off and Lind's clear waiver of counsel.
As to that portion of the interrogation, despite Lind's request for an attorney, he continued to communicate with the officers and to urge them to hear about his alibi. Under Edwards, because Lind reinitiated communication, exchanges, or conversations with the police, the police did not have a duty to cease interrogation. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. Furthermore, Lind's admissions did not occur until after he made his unequivocal waiver of his rights. Thus, any error in failing to suppress the portion of the interrogation at issue was harmless because it was only after his unequivocal waiver of rights that Lind's admission was made.
Request for Substitute Counsel
Lind was represented by a public defender. Claiming conflicts with that lawyer, he moved the court to appoint substitute counsel. The court denied the motion on the ground that it lacked authority to appoint a substitute public defender. Lind argues that this was error and seeks a remand for a determination of whether his circumstances warranted substitute counsel. See State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977) (holding that a motion for substitute counsel will be granted "only if exceptional circumstances exist and the demand is timely and reasonably made.").
Although the district court has the authority to appoint substitute counsel, the court's inaccurate statement to the contrary does not necessarily entitle Lind to another attorney. See State v. Lamar, 474 N.W.2d 1, 3, (Minn.App. 1991) (noting that the trial court's statement that the defendant could not have a different public defender under any circumstances, though not an accurate statement of the law, the court's denial of a new trial was harmless), review denied (Minn. Sept. 13, 1991).
Lind claims that his attorney had a conflict because of a personal relationship with the prosecutor, lied about possible plea bargains, and was constantly out of the office. The "exceptional circumstances" that must be shown to justify the appointment of substitute counsel are such "that affect a court-appointed attorney's ability or competence to represent the client." State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001) (citation omitted).
Lind's allegation of a "personal relationship" between the prosecutor and defense counsel is vague and fails to show expressly or inferentially defense counsel's lack of competence to represent Lind. The complaint about defense counsel being out of the office similarly does not impugn the attorney's competence. Busy trial attorneys are frequently not in their offices. Finally, the claim that Lind's attorney lied about plea bargains is not only unsubstantiated but is contradicted by Lind's insistence in open court that he would not accept a plea bargain and instead would go to trial. Nothing in the record shows anything beyond Lind's dissatisfaction with his attorney. "General dissatisfaction or disagreement with appointed counsel's assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney." State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998).
Finally, we have reviewed the issues raised by appellant's pro se supplemental brief and to the extent they are not mentioned above, we find them to be without merit.