Opinion
No. A04-692.
Filed November 16, 2004.
Appeal from the District Court, Winona County, File No. K9-03-1723.
Mike Hatch, Attorney General, and Charles E. MacLean, Winona County Attorney, (for appellant).
Karin Leonard Sonneman, Sonneman Sonneman P.A., and Mary M. McMahon, (for respondent).
Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this criminal proceeding, the state appeals the district court's pretrial order suppressing crack cocaine found in a warrantless search of respondent Henry Lee Doyal's apartment. Despite the suppression, the district court found probable cause to go to trial on the state's controlled substance charges. Because the suppression order has a critical impact on the state's case, and because the fruits of the search were seized within the scope of Doyal's voluntary consent, we reverse and remand.
DECISION I.
Critical Impact
When the state appeals a pretrial suppression order, it "must `clearly and unequivocally' show both that the trial court's order will have a `critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995). Under the critical impact standard, "[w]hether suppression of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state's evidence against the accused." Id. The supreme court has said that critical impact "is necessarily a demanding standard." Id. But the state does not need to show that its case would be completely destroyed; critical impact has also been found when the state's chances of a successful prosecution are significantly reduced without the suppressed evidence. State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987).
Without the suppressed drugs, the state's evidence is (1) a woman's statement to the police made outside of Doyal's apartment that Doyal was smoking crack cocaine inside; (2) a brass scouring pad, as evidence of drug paraphernalia, found in Doyal's toilet; and (3) Doyal's admission to the officers at the scene that the seized cocaine was his.
The state charged Doyal with possession of a controlled substance in the fifth degree. Minn. Stat. § 152.025, subd. 2(1) (2002). It is thus critical to the prosecution that the direct evidence of the wrongdoing — the crack cocaine — be available to it. Without the cocaine, the state must prove beyond a reasonable doubt that Doyal possessed the drugs by circumstantial evidence and Doyal's admission, which he disputed ever making in his testimony. The suppression of the cocaine thus significantly reduces the state's prosecution chances and clearly and unequivocally has a critical impact.
II.
Scope of Doyal's Consent to Search his Apartment
The United States Supreme Court has held that the scope of a suspect's consent to search is evaluated under an objective standard. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803 (1991); United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 2170-71 (1982) (holding that lawful search "extends to the entire area in which the object of the search may be found"). The Court noted that a suspect may circumscribe his consent, but absent any limitation, consent will extend to all areas that may reasonably contain the object of the search. Jimeno, 500 U.S. at 252, 111 S. Ct. at 1804; see also United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir. 1978) (upholding search when border agent asked for permission to search suspect's truck, suspect did not object, and agent found marijuana underneath truck's hood).
Doyal claims that he only consented for the officers to superficially "look around," and not to "search," his apartment. Permission to "look around," Doyal argues, did not give the officers the freedom to open Doyal's backpack or overturn his baseball cap, which eventually revealed the crack cocaine.
But viewed within an objective framework, the officers did not conduct a search beyond the scope of Doyal's consent. One officer told Doyal that he was investigating a complaint that crack cocaine was being smoked in the apartment. There is no evidence that the officers engaged in subterfuge to gain consent to search for something other than drugs, nor is there evidence suggesting that Doyal did not understand the true reason for the search. In this situation, a reasonable person would have understood that by giving consent to have the officers come in and "look around" for cocaine, Doyal was consenting to an invasive examination of the premises, as cocaine can reasonably be present in any area in the apartment. Both the backpack and the baseball cap, and the areas on the couch beneath the items, could have reasonably contained drugs. See Jimeno, 500 U.S. at 251, 111 S. Ct. at 1804 (allowing consent search for drugs in vehicle to extend to closed paper bag on floorboard). Although Doyal testified that he did not give the officer permission to open his backpack or turn over his hat, because it was reasonable for the officer to do so, the officer's actions did not exceed the scope of Doyal's consent.
The state has shown that the trial court's suppression order was clearly and unequivocally in error. Because we determine that the consent search allowed for the seizure of the crack cocaine, we decline to address the state's arguments that the search and seizure may also be upheld under plain-view or search-incident-to-arrest principles.
We reverse the trial court's suppression order and remand for proceedings not inconsistent with this opinion.