State v. West

State of Minnesota, Respondent, v. Terry Lee West, Appellant.

A16-1959

STATE OF MINNESOTA IN COURT OF APPEALS

November 6, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Bjorkman, Judge

Polk County District Court

File No. 60-CR-11-1260

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, Minnesota (for respondent)

Richard Kenly, Backus, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

UNPUBLISHED OPINION

BJORKMAN, Judge

For the second time, appellant challenges multiple controlled-substance convictions based on events that occurred in mid-2011. In December 2013, this court reversed his convictions based on improper denial of an omnibus hearing. On remand, a jury once again convicted appellant of third-degree and fifth-degree sale of a controlled substance, and fifth-degree possession of a controlled substance. He now argues that (1) the district court erred by not suppressing (a) two custodial statements that he made without receiving a Miranda warning, (b) evidence obtained when police executed a search warrant at his residence, and (c) his testimony from his initial sentencing hearing; (2) the district court abused its discretion by admitting audio and video recordings made during a controlled purchase; (3) the district court erred by imposing a mandatory minimum sentence under Minn. Stat. § 609.11 (2010); and (4) the district court abused its discretion by denying his request for a continuance to enable his expert witness to testify. We affirm.

FACTS

On May 20, 2011, police met with an informant who said that appellant Terry West was supplying him with marijuana for resale each month. That same day, police worked with the informant to complete a controlled purchase of marijuana at West's residence. Through audio and video recordings, police observed West give the informant two handfuls of marijuana and tell him he could pay for it later.

On June 1, based on the controlled purchase and the details the informant supplied, police obtained and executed a search warrant for West's residence and surrounding property. During the search, police discovered and seized more than 6,000 grams of usable marijuana, additional physical evidence consistent with the cultivation and sale of marijuana, and firearms and ammunition. Police also questioned West briefly withoutgiving a Miranda warning, eliciting incriminating statements regarding the controlled purchase, then arrested him.

West was subsequently charged with (1) conspiring to commit third-degree sale of a controlled substance, (2) third-degree sale of a controlled substance, (3) fifth-degree possession of a controlled substance, (4) fifth-degree sale of a controlled substance, and (5) two counts of selling a controlled substance without affixing a tax stamp.

Twice while West was in jail, a police investigator met with West to serve him with property receipts or forfeiture notices. Each time, West became upset and made incriminating statements to the investigator. The investigator did not provide a Miranda warning but told West that he would not discuss his case.

After several substitutions of defense counsel and various pretrial motions, the district court determined that West waived his right to an omnibus hearing. West thereafter waived his right to a jury trial, the state dismissed the conspiracy and tax-stamp charges, and the three remaining controlled-substance charges were submitted to the district court on a stipulated record. The district court found West guilty and conducted a sentencing hearing to determine whether West possessed a firearm at the time of the offenses, triggering a mandatory minimum sentence under Minn. Stat. § 609.11. West elected to testify at the hearing. He addressed both his firearms collection and his marijuana business, including the controlled purchase.

Shortly after the sentencing hearing, the state charged West with perjury based on his testimony. At the perjury trial, the district court admitted the recordings of the controlled purchase, the physical and photographic evidence from the search of West'sresidence, and West's statements to police at the time of the search and while he was in jail. A jury found West guilty, and we affirmed his perjury conviction. State v. West, No. A16-0614 (Minn. App. Jan. 30, 2017).

In the meantime, West appealed his controlled-substance convictions, challenging the district court's determination that he had waived his right to an omnibus hearing. We reversed and remanded, instructing the district court to permit West to file a suppression motion and, if any evidence were to be suppressed, to vacate West's conviction and conduct a new trial. State v. West, No. A13-0198 (Minn. App. Dec. 30, 2013), review denied (Minn. Mar. 18, 2014).

On remand, West moved to suppress the evidence obtained from the execution of the search warrant, as well as his statements to law enforcement at the time of the search and while he was in jail. The district court conducted an omnibus hearing, denied West's motion to suppress the warrant and his jail statements, granted West's motion to exclude statements he made at the time of the search, and ordered a new trial.

West subsequently moved to "exclude" from the new trial his testimony from the prior sentencing hearing. The district court conducted a second omnibus hearing and denied the motion. West again waived his right to a jury trial and agreed to submit the controlled-substance charges to the court on the testimony and exhibits from the perjury trial. The district court found West guilty of all three charges and determined that he possessed firearms at the time of two of the offenses. The district court sentenced West to 36 months' imprisonment. West appeals.

DECISION

I. The district court did not err by denying West's motions to suppress.

"When reviewing a district court's pretrial order on a motion to suppress evidence, [appellate courts] review the district court's factual findings under a clearly erroneous standard and the district court's legal determinations de novo." State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted).

West argues that the district court erred by not suppressing his two jail statements, evidence obtained from the warranted search, and his sentencing testimony. We address each argument in turn.

A. West's Jail Statements

West argues that the district court erred by failing to suppress the incriminating statements he made to police while in jail because he was not given a Miranda warning.¹ "Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning." State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998). But a Miranda warning is required only if a suspect "is both in custody and subject to interrogation." State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010). We determine whether an individual was interrogated by independently examining the totalityof the circumstances based on the facts as found by the district court. State v. Jackson, 351 N.W.2d 352, 355 (Minn. 1984).

Interrogation includes both express questioning and "its functional equivalent," meaning "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90 (1980). Indeed, "even express questions are not always interrogation" if not reasonably likely to elicit a response that is incriminating. State v. Tibiatowski, 590 N.W.2d 305, 309 (Minn. 1999). The crux of the inquiry is whether, from the suspect's perspective, the police conduct reflects "a measure of compulsion above and beyond that inherent in custody itself." Edrozo, 578 N.W.2d at 724-25.

The district court made the following findings regarding West's interactions with the investigator. When the investigator met with West at the jail on June 13 to serve him with property receipts or forfeiture notices, West spontaneously began to talk about his case. The investigator told West he did not want to talk about the case without West's lawyer present and offered to organize a meeting with West's lawyer. But West continued to talk to the investigator and made incriminating statements. The investigator returned on June 30 with another property receipt. This time he brought an audio recorder. When West again began to speak about his case, the investigator repeated his caution and reiterated his willingness to organize a meeting with West and his lawyer. West continued to make incriminating statements, which the investigator recorded.

West contends that these circumstances amount to interrogation because the investigator "hoped the disclosures would be incriminating" and operated a hidden recorder during the second jail encounter. We are not persuaded. A police officer does not interrogate a suspect simply by hoping, or even planning for the possibility, that he will incriminate himself. See id. at 725 (upholding admission of statements defendant made to a fellow suspect while they were left alone with a hidden recording device). And while West was tired and upset at the time of the conversations, nothing in the record indicates that the investigator caused or took advantage of West's condition by asking about his alleged offenses. On this record, we conclude that the investigator did not subject West to interrogation, so no Miranda warning was required. Accordingly, the district court did not err in denying West's motion to suppress his incriminating statements to the investigator.²

B. Search Warrant

When reviewing the decision to issue a search warrant, we consider only whether the issuing judge had...