Opinion
No. C6-02-1095.
Filed February 11, 2003.
Appeal from the Washington County District Court, File No. C1013225.
Brad C. Eggen, Law Offices of Brad C. Eggen, (for appellant)
Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Assistant Attorney General, (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Anderson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 the revocation of his driver's license for operating a motor vehicle while impaired, arguing that (1) the revocation of his license was invalid because his alcohol concentration was measured more than two hours after driving; (2) incriminating evidence was obtained in violation of his Miranda rights; (3) the search of his motor vehicle violated his rights under the Minnesota and United States Constitutions; (4) he was denied due process by respondent's failure to disclose material evidence and misleading statements made to his estranged wife by investigating officers; and (5) the trial court failed to make adequate findings regarding appellant's affirmative defense of post-driving consumption of alcohol. Because we conclude that (a) appellant's driver's license was validly revoked based on the measurement of his alcohol concentration taken more than two hours after driving; (b) Miranda does not apply to implied-consent proceedings; (c) the search of appellant's vehicle was valid under the Minnesota and United States Constitutions; (d) appellant was not denied due process; and (e) the trial court sufficiently addressed the issue of post-driving consumption of alcohol, we affirm.
FACTS
On May 9, 2001, at approximately 10:49 p.m., Minnesota State Patrol Officer Liane Sellner received a call from dispatch concerning an accident at the intersection of Highway 61 and Highway 8. Trooper Sellner arrived at the accident scene within 5 to 15 minutes of the call. The intersection of Highway 61 and Highway 8 is a "T" intersection. Instead of turning, a vehicle had gone straight through the intersection, collided with a street sign and tree, and come to a stop on top of the sign and tree. There was moderate damage to the front of the car. The vehicle was locked, and there was no one in the vehicle or at the accident scene.
Trooper Sellner ran the license plate of the vehicle and discovered that it was registered to the White Bear Lincoln Mercury car dealership. Based on that information, Trooper Sellner suspected that the car may have been stolen. She arranged for a tow truck to pull the car off of the tree and street sign. Trooper Sellner then directed the tow-truck operator to open the locked vehicle so that she could conduct an inventory search, because the vehicle was being impounded, and try to determine if the vehicle was stolen.
Once inside the vehicle, Trooper Sellner found no evidence of a crime or physical injury. She conducted a search of the vehicle, including the trunk, to make sure that all property was properly accounted for.
On the center console between the two front seats, Trooper Sellner found a rental agreement that was folded in half. She unfolded and read the agreement. Appellant's name and driver's license number were listed on the rental agreement, along with a Lake Elmo address. Trooper Sellner asked her dispatcher to send Washington County deputies to the Lake Elmo address to see if the deputies could find out any information about the abandoned vehicle or its missing driver. When the deputies arrived at the Lake Elmo address, they learned that appellant was no longer living there. The deputies spoke with appellant's estranged wife, who told them that appellant lived at an address in Forest Lake. The deputies conveyed this information to Trooper Sellner, who asked the dispatcher to send local officers to the Forest Lake address in advance of her arrival there.
Appellant had been separated from his wife for 11 years.
Forest Lake police officers Greg Weiss and Jason Meron arrived at the Forest Lake address at about 12:00 a.m. and parked their squad cars in the driveway. Appellant's girlfriend, Robin Bolen, answered the door. The officers asked if this was appellant's residence, and she responded that it was. The officers noticed appellant standing in the living room area and asked him if he would be willing to talk to them. He agreed, and the officers were invited into the house. When asked if he had been involved in an accident earlier in the night, appellant responded that he had and that he ended up in the ditch. Because appellant was wearing a bathrobe, the officers advised appellant that a female state trooper was on her way to ask him some questions and asked if he would put on street clothes. The officers noticed an odor of alcohol coming from appellant but did not see any open containers of alcohol in the area. Officer Weiss asked appellant if he had consumed any alcohol since the accident, and appellant responded that he had not. After appellant dressed, he and the two officers went outside to wait for Trooper Sellner.
Trooper Sellner arrived at the Forest Lake address approximately 10 to 15 minutes after the Forest Lake officers. She activated the video camera and the audio transmitter in her squad car, identified appellant as James Anderson, and began asking him questions. Appellant initially stated that he did not know that he had hit anything when he drove off the road but later admitted that he knew he had hit something. Appellant said that he did not think he needed to report the accident because there were no other vehicles involved. Trooper Sellner detected an odor of alcohol coming from appellant and observed that his eyes were bloodshot and watery. She asked appellant if he had been drinking, and he acknowledged that he had consumed about three beers earlier in the night. Appellant said that he had not had anything to drink since the accident. Appellant exhibited indicia of intoxication during three field sobriety tests conducted by Trooper Sellner. Trooper Sellner also administered two preliminary breath tests, and appellant registered alcohol concentrations of 0.13 and 0.135. Concluding that appellant had driven while under the influence of alcohol, Trooper Sellner placed him under arrest.
When Trooper Sellner read appellant the implied-consent advisory, appellant said that he understood the advisory and wanted to speak to an attorney. At the police station, appellant was provided with a phone and phone book, which he used from about 12:50 a.m. to about 1:43 a.m. When he finished using the phone, Trooper Sellner asked appellant if he would take a breath test, and appellant replied that he would. The breath test concluded at about 1:53 a.m. Appellant registered an alcohol concentration of 0.13.
The commissioner of public safety revoked appellant's driver's license for driving under the influence with an alcohol concentration of 0.10 or more. Appellant filed a petition challenging the revocation of his license. Following a hearing, the trial court issued an order sustaining the revocation of appellant's license. Appellant filed a notice of appeal with this court, but subsequently filed a motion in the trial court pursuant to Minn.R.Civ.P. 60.02. The motion was based on a videotape of Trooper Sellner's search and impoundment of appellant's vehicle at the accident scene and a report prepared by the Washington County sheriff's deputies who spoke with appellant's estranged wife the night of the accident, evidence that had not been provided to appellant before the implied-consent hearing. Appellant asked this court to stay his appeal pending the trial court's ruling on the rule 60 motion. We dismissed the appeal without prejudice. Following the trial court's denial of his motion, appellant filed this appeal.
DECISION 1.Two-Hour Requirement
Appellant argues that, because his breath test was administered more than two hours after the time of driving and respondent cannot prove his alcohol concentration at the time of driving, the breath test cannot serve as a basis for license revocation under the implied-consent law. Generally, the trial court's conclusions of law will only be overturned upon a determination that the trial court has erroneously construed and applied the law to the facts of the case. Dehn v. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App. 1986).
The commissioner must revoke a person's driver's license if it is shown that a police officer had probable cause to believe that the person was driving a motor vehicle in violation of Minn. Stat. § 169A.20 (2000) and the person submitted to a breath test resulting in an alcohol concentration of .10 or more. Minn. Stat. § 169A.52, subd. 4(a) (2000). A person is entitled to judicial review of the license revocation, but review is limited, in part, to whether the peace officer had probable cause to believe that the person was driving a vehicle in violation of Minn. Stat. § 169A.20 and whether the test results indicate, at the time of testing, an alcohol concentration of .10 or more. Minn. Stat. § 169A.53, subd. 3(b)(1), (8) (2000). The criminal driving-while-impaired statute states:
It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:
* * * *
(5) when the person's alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.10 or more[.]
Minn. Stat. § 169A.20, subd. 1.
Appellant argues that Minn. Stat. § 169A.51, subd. 1 (2000), allows implied consent revocation of a license when a driver violates Minn. Stat. § 169A.20. Appellant asserts that he was not in violation of Minn. Stat. § 169A.20, subd. 1(5), because respondent did not show that appellant's alcohol concentration was greater than 0.10 at the time of driving or within two hours of the time of driving. Appellant contends that because he did not violate Minn. Stat. § 169A.20, the trial court erred by sustaining the revocation of his driver's license under Minn. Stat. § 169A.51, subd. 1.
Appellant erroneously contends that his alcohol concentration must be measured within two hours of the time of driving for there to be a violation of the implied-consent law. See Rohlik v. Comm'r of Pub. Safety, 400 N.W.2d 791, 793 (Minn.App. 1987) (stating that there is no requirement that the breath test be conducted within two hours), review denied (Minn. Apr. 17, 1987). While Minn. Stat. § 169A.20, subd. 1, has a two-hour requirement, the implied-consent statute has no such requirement. Compare Minn. Stat. § 169A.20, with Minn. Stat. § 169A.50-.53 (2000). For there to be a violation of the implied-consent law, the peace officer must have probable cause to believe that the individual was driving a vehicle while under the influence of alcohol, and the test results, at the time of testing, must indicate an alcohol concentration of 0.10 or more. Minn. Stat. § 169A.52-.53. Because the implied-consent law does not require appellant's alcohol concentration to be measured within two hours of the time of driving, the trial court properly relied on the results of appellant's breath test in affirming the revocation of his driver's license.
Appellant also argues, for the first time on appeal, that the law requires respondent to produce expert testimony regarding the relationship between the alcohol content at the time of driving and the results of the breath test. We will not generally consider issues that were not raised in the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Nevertheless, appellant's argument is without merit because the issue in an implied-consent proceeding is the alcohol concentration at the time of testing, not at the time of driving. Minn. Stat. § 169A.53, subd. 3(b)(8); see also Dutcher v. Comm'r of Pub. Safety, 406 N.W.2d 333, 336 (Minn.App. 1987) (stating that the commissioner's burden only extends to the alcohol concentration at the time of testing, insofar as an implied-consent proceeding is concerned).
2.Miranda Warning
Appellant contends that he was entitled to a Miranda warning before he was questioned by authorities at his residence. This court stated in Steinberg v. State, Dep't of Pub. Safety, 357 N.W.2d 413, 415 (Minn.App. 1984), that " Miranda's exclusionary rule does not apply in implied consent proceedings." An implied-consent proceeding is civil, rather than criminal, in nature. Id. Therefore, no Fifth Amendment right attaches. Id. Because this is a civil implied-consent proceeding, the trial court properly held that appellant was not entitled to a Miranda warning before questioning.
Even if Miranda applied in the implied-consent context, no Miranda warning would have been necessary under the circumstances because appellant was not subject to custodial interrogation. A Miranda warning is only necessary during custodial interrogation. State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998). Whether or not a suspect is "in custody" is an objective determination based on whether a reasonable person in the suspect's situation would have understood that he was in custody. Id. A person is "in custody" under Miranda if restrained to a degree similar to that associated with a formal arrest, and if that person's belief that they are "in custody" is objectively reasonable. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).
Appellant argues that he was in custody when questioned at his residence because (1) the officers parked their cars in the driveway, blocking the garage; (2) the officers told appellant that they were going to wait with him until Trooper Sellner arrived; and (3) the officers asked appellant to put on street clothes. We disagree.
This court has held that field sobriety tests, preliminary breath tests, and preliminary questioning of a person suspected of driving under the influence are not circumstances that constitute custodial interrogation under Miranda. State v. Kline, 351 N.W.2d 388, 390 (Minn.App. 1984). Here, the questioning took place in or just outside appellant's home. His freedom of movement was not restrained. He was not handcuffed, placed in the back of a squad car, told he was under arrest, or that he could not leave. Under the circumstances, appellant was not restrained in a manner similar to that associated with a formal arrest such that he could have reasonably believed that he was "in custody."
3.Inventory Search
Appellant argues that Trooper Sellner violated his Fourth Amendment right to be free from unreasonable searches and seizures when she unfolded and read the rental agreement that was in the locked vehicle. The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. Generally, warrantless searches are per se unreasonable. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). But there are several well-delineated exceptions to the warrant requirement. Id. The state bears the burden of proving that an exception to the warrant requirement applies. Id.
The inventory exception to the warrant requirement allows a warrantless search of an impounded automobile for the purpose of taking an inventory of the items inside. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741 (1987); South Dakota v. Opperman, 428 U.S. 364, 373, 96 S.Ct. 3092, 3099 (1976); State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997). Generally, an inventory search will be justified when it becomes essential for police to take custody and responsibility for a vehicle due to the absence or incapacity of the owner or driver. City of St. Paul v. Myles, 298 Minn. 298, 301, 218 N.W.2d 697, 699 (1974). Under the inventory exception, police are permitted to search a vehicle as long as they follow standard procedures and perform the search, at least in part, for the purpose of obtaining an inventory and not solely for investigative purposes. Ture, 632 N.W.2d at 628.
Here, it became necessary for Trooper Sellner to take custody and responsibility of appellant's car when it was left abandoned on top of a traffic sign and tree on the side of the road. While Trooper Sellner testified that she believed the vehicle may have been stolen, the trial court credited Trooper Sellner's testimony that the search was conducted, at least in part, to inventory the contents of an impounded vehicle and not solely for investigative purposes. Because we will not disturb the trial court's determination of witness credibility on appeal, we conclude that Trooper Sellner's inventory search was constitutionally permissible.
Appellant argues that when Trooper Sellner opened and read the folded rental agreement, she went beyond the scope of a permissible inventory search. Inventory searches of impounded automobiles protect the owner's property while it is in police possession, protect the police against claims of lost or stolen property, and protect the police from potential danger. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097. The scope of the inventory search should be as broad as necessary to produce a proper inventory and fulfill the officer's caretaking function, but should not be an excuse for rummaging for incriminating evidence. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635 (1990). On the other hand, a legitimate inventory search is not made unlawful because the investigating officer remains vigilant for evidence during the search. United States v. Khoury, 901 F.2d 948, 959 (11th Cir. 1990).
Several courts have found that reading personal documents found during an inventory search of a motor vehicle is within the permissible scope of an inventory search and a necessary part of the officers' caretaking function. See, e.g., United States v. Andrew, 22 F.3d 1328, 1333-37 (5th Cir. 1994) (holding that the opening and reading of a notebook found in a defendant's vehicle was within the permissible scope of an inventory search); United States v. Pace, 898 F.2d 1218, 1243 (7th Cir. 1990) (holding that the initial examination of receipts and leafing through of record books found in a defendant's vehicle was within the permissible scope of an inventory search); United States v. Arango-Correa, 851 F.2d 54, 59 (2d Cir. 1988) (holding that police officers were within the permissible scope of an inventory search when they opened and perused the contents of two notebooks found in a defendant's car).
Here, Trooper Sellner's unfolding and reading of appellant's rental agreement was within the permissible scope of the inventory search. It was necessary for Trooper Sellner to unfold and peruse the document to determine whether it was an item of value and to properly identify the document for purposes of her inventory. The document could have been an important contract or a worthless piece of paper. Because unfolding and examining the rental agreement was necessary for Trooper Sellner to properly identify and inventory the document, we conclude that Trooper Sellner did not exceed the scope of a permissible inventory search.
4. Due Process
Appellant argues that his due-process rights were violated when respondent failed to produce a videotape of Trooper Sellner's search of appellant's vehicle and a report prepared by the deputies who spoke to appellant's estranged wife on the night of the accident. Appellant claims that the failure of respondent to disclose these items resulted in his inability to properly cross-examine witnesses.
Implied-consent proceedings are not governed by the general rules of discovery. Discovery in an implied-consent hearing is limited by Minn. Stat. § 169A.53, subd. 2(d), which states:
(d) Judicial reviews must be conducted according to the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to:
(1) the notice of revocation;
(2) the test record or, in the case of blood or urine tests, the certificate of analysis;
(3) the peace officer's certificate and any accompanying documentation submitted by the arresting officer to the commissioner; and
(4) disclosure of potential witnesses, including experts, and the basis of their testimony.
Other types of discovery are available only upon order of the court.
Appellant made a discovery request for the Washington County Police Department report regarding the visit to appellant's estranged wife's house and the videotape of Trooper Sellner's search of appellant's car. Respondent provided appellant with everything that was in its file. The report and videotape were not in respondent's possession, and respondent was not aware of their existence. Minn. Stat. § 169A.53, subd. 2(d), requires a court order to obtain items outside of the discovery scope of the statute. Appellant is not entitled to relief because there was no discovery violation. Further, after receiving the videotape and report, appellant moved to vacate the trial court's order based on the newly discovered evidence. After reviewing the evidence, the trial court denied appellant's motion because the court concluded that the evidence was consistent with the testimony and would not have changed the result.
Appellant also claims that his due-process rights were violated when the Washington County sheriff's deputies made misleading statements to his estranged wife in order to induce her to provide appellant's current address. The prosecutor stipulated to the fact that appellant's estranged wife provided the deputies with appellant's current address. Any further testimony regarding the deputies' conversation with appellant's estranged wife was objected to on relevancy grounds, which the court sustained. Appellant was not prejudiced by portions of his estranged wife's purported testimony that the trial court excluded from evidence.
5. Post-Driving Consumption of Alcohol
Appellant's final argument is that the trial court erred by failing to specifically address his affirmative defense of post-driving consumption of alcohol. Post-driving consumption of alcohol is an affirmative defense in an implied-consent proceeding. Dutcher, 406 N.W.2d at 336. We will not reverse the trial court's findings of fact unless they are clearly erroneous. Thompson v. Comm'r of Pub. Safety, 567 N.W.2d 280, 281 (Minn.App. 1997), review denied (Minn. Sept. 25, 1997); see also Minn.R.Civ.P. 52.01.
Bolen testified that after appellant came home following the accident, he consumed three or four alcoholic beverages. The trial court did not specifically address Bolen's testimony in its findings, but relied on the multiple out-of-court statements made by appellant the night of the accident that he did not consume alcohol after the accident. It is implicit in the trial court's findings that the court discredited Bolen's testimony and rejected appellant's contention at the hearing that his alcohol-concentration level was the result of post-driving alcohol consumption. See Dutcher, 406 N.W.2d at 336 (inferring that the trial court found that respondent met her burden of proving that her alcohol concentration was below 0.10, even though the trial court did not specifically address the issue). The trial court's findings are not extensive, but they are sufficient for this court to conduct a meaningful review of its decision. While trial courts are required to make findings when deciding a case on the merits, see Minn.R.Civ.P. 52.01, it is unnecessary for trial courts to make specific findings regarding every conflict in the evidence. We conclude that the trial court's findings of fact were not clearly erroneous and that it was unnecessary for the trial court to make a specific finding that Bolen's testimony was not credible when such a finding was implicit in the court's order.
Affirmed.
I respectfully dissent. Unlike the majority, I believe that Trooper Sellner exceeded the constitutionally permissible scope of her inventory search when she unfolded and read the rental agreement that was found in appellant's motor vehicle, the reading of which led to his arrest. I would reverse the trial court's revocation of appellant's driver's license.
The United States Supreme Court endorsed the warrantless search of a motor vehicle for the limited and discrete purpose of taking an inventory of items inside an impounded vehicle. South Dakota v. Opperman, 428 U.S. 364, 373, 96 S.Ct. 3092, 3099 (1976). The Court determined that inventory searches were reasonable because they were limited to the caretaking functions of protecting the property of the owner of the vehicle, and protecting the police from claims of lost or stolen property. Id. at 369, 96 S.Ct. at 3097. In an effort to ensure that inventory searches were limited in scope and purpose, the Court has accorded deference to police procedures designed to secure and protect vehicles and their contents while in police custody. Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 741 (1987). Thus, in determining the reasonableness of an inventory search, courts must ask whether the police carried out the search in accordance with standard police procedures. Opperman, 428 U.S. at 374-75; 96 S.Ct. at 3100; State v. Holmes, 569 N.W.2d 181, 188 (Minn. 1997). Limiting inventory searches to the parameters of standard police procedures ensures that the intrusion is limited in scope to the extent necessary for the police to carry out their caretaking function. Opperman, 428 U.S. at 374-75, 96 S.Ct. at 3100; see also Bertine, 479 U.S. at 376, 107 S.Ct. at 743 (Blackmun, J., concurring) ("The underlying rationale for allowing an inventory exception to the Fourth Amendment warrant rule is that police officers are not vested with discretion to determine the scope of the inventory search.").
In Justice Powell's often-cited concurring opinion in Opperman, he stated that inventory searches do not provide a "general license for the police to examine all of the contents of [an automobile]." Opperman, 428 U.S. at 380, 96 S.Ct. at 3102. He explained:
As part of their inventory search the police may discover material such as letters or checkbooks that touch upon intimate areas of an individual's personal affairs, and reveal much about a person's activities, associations, and beliefs. In this case the police found, inter alia, miscellaneous papers, a checkbook, an installment loan book, and a social security status card. There is, however, no evidence in the record that in carrying out their established inventory duties the Vermillion police do other than search for and remove for storage such property without examining its contents.
Id. at n. 7 (citations and quotations omitted). Justice Powell's concern regarding the permissible scope of an inventory search is evident.
Many courts have found that it is beyond the constitutionally permissible scope of an inventory search for police officers to examine the contents of personal documents identified during the search. See, e.g., United States v. Khoury, 901 F.2d 948, 959 (11th Cir. 1990) (holding that police officer was within permissible scope of inventory search when he flipped through pages of notebook looking for items of value, but that he exceeded scope of search when he took second look at notebook and read its contents); D'Antorio v. State, 926 P.2d 1158, 1164 (Alaska 1996) (applying Ohio and federal law and holding that reading of personal papers found during an inventory search went beyond scope of permissible inventory search); Waine v. State, 377 A.2d 509, 517 (Md.Ct.Spec.App. 1977) (finding that police officers exceeded permissible scope of inventory search when they read personal papers found in defendant's luggage).
For Trooper Sellner's inventory search to be valid, there must be evidence that the search was performed in accordance with standard procedures. Holmes, 569 N.W.2d at 188; see also Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 1635 (1990) (affirming suppression of evidence seized from closed container in absence of inventory policy concerning such containers); Khoury, 901 F.2d at 958 (stating that prosecution can assure itself "smoother and surer path" when it provides concrete evidence that inventory search followed standard procedures).
Here, there is no evidence regarding whether Trooper Sellner performed her search in accordance with any standard procedures, or if in fact there were any standard procedures in place at the time for the officer to follow. Absent evidence of standard procedures demonstrating the limits of Trooper Sellner's inventory search, this court cannot properly determine whether the scope of her search was constitutionally permissible. Because there is no evidence in the record regarding standard inventory search procedures, unlike the majority, I would have found that Trooper Sellner's search was unreasonable because it was not sufficiently regulated to satisfy the Minnesota and United States Constitutions.
Furthermore, the reading of the rental agreement was not necessary for Trooper Sellner to carry our her caretaking function or within the permissible scope of her inventory search. The purpose of an inventory search is limited to protecting the property of the owner of the vehicle, and protecting the police from claims of lost or stolen property. See Opperman, 428 U.S. at 369, 96 S.Ct. at 3097. Trooper Sellner fulfilled her limited caretaking function when she unfolded the document and identified it as a rental agreement. Any further reading of the rental agreement was unnecessary and beyond the limited scope and purpose of Trooper Sellner's search. Once she identified the agreement as a rental agreement, she had enough information about the document to sufficiently protect the property of the owner of the vehicle and protect the police from claims of lost or stolen property. Any further reading of the document was an unnecessary intrusion into appellant's private business and beyond the scope of a permissible inventory search.
Finally, although Trooper Sellner's search of appellant's car appears on the surface to have been investigatory, nevertheless it seems highly improbable that a car thief would take the time to lock a vehicle before leaving the scene of an accident, and even more improbable that Trooper Sellner would believe that the locked vehicle was stolen, which of course it was not.