December 2017

DATE: DECEMBER 2017

I. FOURTH AMENDMENT

C. SEARCH OF GUEST’S PURSE REASONABLE AND WITHIN SCOPE OF PREMISES WARRANT UNDER TOTALITY OF CIRCUMSTANCES: Following the district court’s denial of Appellant’s motion to suppress evidence obtained from her purse during the execution of a search warrant while she was a guest at the subject premises, Appellant stipulated to the facts under Minn. R. Crim. P. 26.01, subd. 4., and the district court found Appellant guilty. On appeal, Appellant argues that, as a visitor not named in the warrant, she had a reasonable expectation of privacy in her belongings, including her purse, even if they were not in her possession when the warrant was executed. The Court of Appeals affirmed the district court, and the Supreme Court granted review. Held, the search of Appellant’s purse was reasonable under a totality-of-the-circumstances analysis, specifically because: (1) the warrant application suggests police believed a woman lived at the home with the named suspect, and the parties agreed a purse is an item typically associated with women; (2) at the time of the search, the police did not know to whom the purse belonged; (3) the purse was found unattended in a different room than Appellant; and (4) it was reasonable for police to believe contraband could be found in Appellant’s purse. In its analysis, the Court declines to adopt all three tests proposed by the parties and used by other courts to determine when the search of a guest’s belongings exceeds the scope of a premises search warrant (the “physical possession test,” the “relationship test,” and the “actual notice test”), in favor of a reasonableness analysis based upon a fact-intensive inquiry into all surrounding circumstances. Because the search was reasonable, the district court did not err in denying Appellant’s motion to suppress. State v. Molnau, 904 N.W.2d 449 (Minn. 2017).

B. NON-PROBATIONER HAS DIMINISHED EXPECTATION OF PRIVACY IN COMMON AREAS OF RESIDENCE SHARED WITH PROBATIONER: Appellant shared a residence with his brother and J.S., who were both on felony probation and signed agreements providing consent to warrantless searches of their residence. Police received a tip that there may be stolen goods in the residence, and probation determined a warrantless search should be conducted. Appellant was outside the home when police and probation officers arrived, and initially refused to let them inside, relenting only after they threatened to knock the door down. Police asked if there were firearms inside, and Appellant said there were. In the hallway, police passed the open door to Appellant’s bedroom, through which they observed firearms. In a later interview, Appellant admitted to owning the firearms. Appellant, a felon, was subsequently arrested and convicted of receiving stolen property and being a felon in possession of a firearm. On appeal, he argues the district court should have suppressed the evidence found during the search and his statements to law enforcement about the evidence. Under the Fourth Amendment, warrantless searches of a probationer’s residence are reasonable if authorized by a condition of probation and supported by reasonable suspicion. United States v. Knights, 534 U.S. 112, 122 (2001). By choosing to live with an individual on probation, a co-resident assumes the risk that they, too, will have diminished Fourth Amendment rights in areas shared with the probationer. Thus, Appellant, who himself had been on probation in the past and admitted to knowing his brother and J.S. were subject to probation searches, voluntarily and knowingly took on the risk that the residence might be subject to probation searches. Additionally, the government’s legitimate interest in ensuring compliance with probation conditions supports the reasonableness of the search. Allowing a non-probationer co-inhabitant to object to probation searches would create a loophole allowing probationers to evade probation conditions by making a strategic decision to live with a non-probationer. The Court of Appeals notes, however, that a non-probationer still maintains an expectation of privacy in non-common areas of a residence shared with a probationer, areas under the non-probationer’s exclusive control, such as the non-probationer’s bedroom. Here, there is nothing in the record to indicate police reasonably believed Appellant’s brother or J.S. exerted any authority over Appellant’s bedroom, so they were not allowed to enter the bedroom merely because they were conducting a probation search of the residence. However, the search was lawful under the plain view exception to the warrant requirement, as police observed firearms in Appellant’s bedroom while standing in the shared hallway. Appellant’s admission that firearms were located in his bedroom, and police’s observation of firearms therein, also gave police a reasonable, articulable suspicion to conduct a protective sweep of the bedroom. State v. Bursch, N.W.2d , No. A16-1961, 2017 WL 6418216 (Minn. Ct. App. Dec. 18, 2017).

C. FIELD SOBRIETY TESTS NOT SEARCHES UNDER FOURTH AMENDMENT: Appellant was pulled over for speeding when police smelled alcohol on his breath. Appellant admitted to drinking two alcoholic beverages before driving. Police asked Appellant to exit his vehicle and had him perform field sobriety tests and a preliminary breath test, without asking him to complete the tests or informing him he did not have to perform them. Appellant was arrested for DWI after the PBT revealed an alcohol concentration of 0.13. Appellant also submitted to a DataMaster breath test, which showed a result of 0.12. Appellant’s driving privileges were subsequently revoked. Appellant argues the field sobriety tests and PBT were impermissible warrantless searches and the DMT lacked a reliable foundational basis. First, the Court of Appeals concludes that field sobriety tests are not searches for Fourth Amendment purposes. The tests are observations of the subject made by police, and do not involve the collection of physical evidence, and drivers are able to decline them. Roadside sobriety testing is merely an investigatory expansion of a traffic stop. Next, the Court finds that the PBT did not violate Appellant’s Fourth Amendment rights. The Court declines to address whether a PBT is a search entitled to the same treatment as other chemical tests post-McNeely, instead finding that Appellant consented to the PBT and, after the field sobriety tests, the officer was authorized to arrest Appellant and seize his breath incident to that arrest, without a warrant. The Court concludes that the district court did not abuse its discretion in admitting the DMT result, and affirms the district court’s decision to sustain the revocation of Appellant’s driving privileges. Vondrachek v. Comm’r of Pub. Safety, N.W.2d , No. A17-0462, 2017 WL 6418089 (Minn. Ct. App. Dec. 18, 2017).

II. APPELLATE PROCEDURE

A. MISDEMEANOR APPEAL DEADLINE APPLIES WHEN DEFENDANT AQUITTED OF GROSS MISDEMEANOR, FOUND GUILTY OF MISDEMEANOR, AND GIVEN PETTY MISDEMEANOR SENTENCE: Appellant was acquitted of gross misdemeanor fourth-degree assault and misdemeanor disorderly conduct, but found guilty of misdemeanor obstruction, and the district court imposed a petty misdemeanor sentence. Appellant filed a notice of appeal 91 days after final judgement was entered, under Minn. R. Crim. P. 28.02, subd. 4(3)(a) (requiring notice of appeal to be filed within 90 days after entry of final judgement in felony and gross misdemeanor cases). At oral argument, both parties assumed the matter was a gross misdemeanor “case” for the purposes of appeal deadlines, and the parties argued whether there was good cause for a one-day extension to file the notice of appeal. Held, the matter became a misdemeanor or petty misdemeanor “case” when Appellant was acquitted of the gross misdemeanor charge and found guilty of a misdemeanor charge, triggering the 30-day misdemeanor or petty misdemeanor appeal deadline. The Court has no authority under the Rules of Criminal Procedure to extend the appeal filing deadline more than 30 days. Appellant’s appeal is dismissed as untimely. State v. Parnell, N.W.2d , No. A16-2009, 2017 WL 6418217 (Minn. Ct. App. Dec. 18, 2017).

III. THIRD-DEGREE MURDER

A. WHERE DEFENDANT AND VICTIM ARE NOT MARRIED, NO ERROR TO REFUSE TO GIVE JOINT ACQUISITION INSTRUCTION: Appellant was found guilty of third-degree murder for providing cocaine to a woman who later died. At trial, Appellant argued he and the victim jointly purchased the cocaine. Appellant was charged with third-degree murder under Minn. Stat. 609.195(b), which provides that “[w]hoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a [Schedule I or II] controlled substance… is guilty of murder in the third degree.” At the conclusion of trial, the district court denied Appellant’s request that the jury be instructed that Appellant had not “given away” cocaine if the jury found that the victim and Appellant jointly acquired the cocaine. State v. Carithers, 490 N.W.2d 620, 622, 624 (Minn. 1992), established the joint-acquisition defense Appellant sought to raise at trial, holding that criminal liability could not be imposed where there was “joint acquisition and possession of drugs under circumstances where neither defendant’s conduct could be fairly characterized as involving a sale or transfer or delivery to the person who died.” The Supreme Court explicitly limited it’s holding to the facts of the case, which involved a married couple that jointly acquired a controlled substance, id. at 620, 623-24, and has repeatedly reasserted Carithers’ limited scope. The Court of Appeals declines to extend Carithers’ joint-acquisition defense to cases involving a non-married couple that jointly acquired drugs that killed one of them. State v. Schnagl, N.W.2d. , No. A16-1509, 2017 WL 6418215 (Minn. Ct. App. Dec. 18, 2017).

IV. SIXTH AMENDMENT

A. REVOCATION OF STAYED SENTENCE BASED ON PROBATION VIOLATION NOT A NEW SENTENCE REQUIRING COMPLIANCE WITH BLAKELY: Appellant pleaded guilty to being a felon in possession in 2012 and the district court stayed imposition of his sentence for five years. The sentencing guidelines recommended a presumptive 15-month stayed sentence. In 2017, the district court found Appellant violated his probation, vacated the stay, and executed the presumptive 15-month guideline sentence. On appeal, Appellant argues the district court violated his Sixth Amendment right to a jury trial under Blakely by not imposing a stayed sentence, and imposing an executed sentence, which Appellant claims was an upward dispositional departure requiring jury findings or a waiver. The Court of Appeals notes that the “critical question in this case is when, exactly, [Appellant] was sentenced” – more generally, when a defendant is sentenced on a stay of imposition: when the stay is granted, or when it is vacated. Held, a defendant is sentenced within the sentencing guidelines when a stay of imposition is granted. Sentencing occurs in two steps: (1) imposition of sentence, and (2) execution of the imposed sentence. A stayed sentence can be either a stay of imposition or stay of execution. For a stay of imposition, the guidelines provide that no sentence length is pronounced, and imposition is stayed to some future date. So, while a stay of imposition lacks a defined length of imprisonment, it is still a “sentence” under the guidelines. Thus, Appellant was sentenced when a stay of imposition was granted following his guilty plea in 2012. The execution of his presumptively stayed sentence was the result of his probation violation, rather than a “new” sentence, and Appellant has no Sixth Amendment right to a jury for a probation revocation hearing. State v. Bradley, N.W.2d , No. A17-1024, 2017 WL 6418876 (Minn. Ct. App. Dec. 18, 2017).

V. CONDITIONAL RELEASE

A. PHASE II OF CHALLENGE INCARCERATION PROGRAM NOT “RELEASE FROM PRISON”: Appellant filed a civil suit against a MN DOC program manager, claiming his conditional release term was miscalculated. He received a 51-month sentence and five-year conditional release term for first-degree test refusal in June 2007. In July 2008, he moved into phase II of the Challenge Incarceration Program (CIP), which allowed him to reside at home. Appellant he argues entering phase II triggered the start of his conditional release term, which would have then expired in July 2013. Appellant began supervised release in December 2010, but was reincarcerated in March 2014. He remained in custody until May 2014.
The mandatory first-degree DWI five-year conditional release term begins when the offender is released from prison. CIP is divided into three phases, and it is not until the completion of the third phase that an offender is entitled to supervised release for the remainder of his sentence. Thus, an offender in CIP is not “released from prison” until after completion of phase III. The Court of Appeals points to its recent decision in State ex rel. Huseby v. Roy, 2017 WL 4478212 (Minn. Ct. App. Oct. 9, 2017), pet. for review filed (Minn. Nov. 8, 2017), in which the court held that an inmate’s transfer to a residential work release program outside of a correctional facility did not constitute a release from prison and did not begin the inmates five-year conditional release term.
Appellant’s conditional release term commenced when he was granted supervised release in December 2010. Heilman v. Courtney, N.W.2d , No. A17-0863, 2017 WL 6418873 (Minn. Ct. App. Dec. 18, 2017).

VI. EXPUNGEMENT

A. CHARGE CONTINUED AND LATER DISMISSED WITHOUT ADMISSION OR FINDING OF GUILT IS “RESOLVED IN FAVOR OF PETITIONER”: Appellant was charged with providing false identification to gain access to an airport security area and the State agreed to continue the case for dismissal, and no admission or finding of guilt was made. The charge was dismissed on August 1, 2016. One month later, Appellant petitioned to have the charge expunged and the State objected. Both a referee and the district court concluded that Appellant’s petition should be denied. When a case is resolved in a petitioner’s favor, the court must grant expungement unless the agency whose records would be affected “establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.” Minn. Stat. 609A.03, subd. 5(b). In State v. C.P.H., 707 N.W.2d 699 (Minn. Ct. App. 2006), the court held that, for expungement purposes, a criminal charge that is continued for dismissal and subsequently dismissed, without an admission or finding of guilt, is resolved in favor of the petitioner. The Court of Appeals clarifies that subsequent changes to the expungement statute in 2014 did not affect the holding in C.P.H., but instead extended the reach of the statute to a new class of individuals (those who admitted guilt or were found guilty but nonetheless successfully completed a diversion program or received a stay of adjudication). Here, the district court properly determined that Appellant’s case was resolved in his favor. However, the Court also concludes that the district court erred in finding that the State presented clear and convincing evidence that expungement of Appellant’s charge presented a unique or particularized risk of harm to the public that outweighs the unrebutted and legally recognized benefits that Appellant expects from expungement. The district court made a number of errors in its factual findings, as the record did not support the findings. The State also did not provide sufficient evidence to establish a genuine public safety concern, and the district court improperly analyzed the disadvantages to Appellant of not sealing the record when it seemed to require Appellant to prove specific disadvantages. Reversed and remanded. State v. A.S.R., N.W.2d , No. A17-0284, 2017 WL 6418089 (Minn. Ct. App. Dec. 18, 2017).

VII. DWI

A. DATAMASTER TEST RESULT IS DIRECT EVIDENCE OF ALCOHOL CONCENTRATION: Appellant challenges the sufficiency of the evidence to support his conviction for third-degree DWI, arguing the DataMaster breath test (DMT) result is only circumstantial evidence of alcohol concentration, and other rational inferences inconsistent with guilt can be drawn from the circumstances proved at his court trial. More specifically, Appellant argues that, while the DMT reports a number representing alcohol concentration, the factfinder must rely on inference in determining whether that number accurately reflects the true alcohol concentration. In this case of first impression, the Court of Appeals holds that a DMT result is direct evidence of a person’s alcohol concentration. Evidence is direct when it directly addresses the fact in dispute. It is circumstantial when proof of the fact in dispute requires an additional inference from the evidence. Here, the fact in dispute is Appellant’s alcohol concentration, and the DMT’s report directly addresses that fact. “While no measurement is perfect, that does not meant that all measurements are circumstantial evidence.” The evidence is sufficient to support Appellant’s conviction. State v. Brazil, N.W.2d , No. A16-2058, 2017 WL 6567670 (Minn. Ct. App. Dec. 26, 2017).