Filed December 29, 1998.
Appeal from the District Court, St. Louis County, File No. K697600121.
Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, and Alan L. Mitchell, St. Louis County Attorney, (for respondent)
John M. Stuart, State Public Defender, John S. Lind, Special Assistant Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
This appeal is from a judgment of conviction for fifth-degree controlled substance offense in violation of Minn. Stat. § 152.025, subd. 2(l). Appellant Dushaun Martin Holmes challenges the district court's denial of his motion to suppress evidence and dismiss the complaint. We affirm.
Police obtained a search warrant authorizing them to search a room at the Holiday Inn, as well as the persons of five suspects, unnamed, but with physical descriptions, including a description of a 5'9" 160-pound suspect, 19 to 21 years of age, nicknamed "Duke." Police had obtained the descriptions from a confidential reliable informant who reported that the men were selling crack cocaine. A surveillance officer had noted a strong odor of burning marijuana outside the room at the Holiday Inn.
Police spotted Holmes, who matched the description of "Duke," twice that evening accompanied by men who matched the descriptions of other suspects. After a third sighting, police followed Holmes and two other men to the Tri-Towers Apartment, where they smelled a strong odor of burning crack cocaine outside Apartment 1202, which was registered to a " D. Holmes. " The officers started work on a search warrant application for Apartment 1202, then were called to assist in executing a search warrant for the Holiday Inn, where they found crack cocaine and arrested Christopher Holmes (whom they later learned was Holmes's brother).
Two of the officers returned to the area where they had seen Holmes earlier. They spotted Holmes walking with three other men, some of whom matched the search warrant descriptions. The officers stopped and pat searched Holmes and a companion, and placed Holmes in the back seat of a squad car to await the arrival of narcotics investigators. The pat searches yielded no weapons and no contraband. Police found money and a pager on Holmes. Holmes's companion was briefly questioned and allowed to leave.
Holmes acknowledged he was known as "Duke," and was told there was a search warrant authorizing police to search his person. Police asked Holmes whether he would allow them to search his apartment at the Tri-Towers, and Holmes agreed, later signing a consent form. At the apartment, they found baggies that had apparently been used to package crack cocaine, a crack pipe, and a small pocket knife with white residue on it, which tested positive for cocaine. During the search, Holmes was given a Miranda warning, and agreed to give a statement, in which he admitted the residue on the knife was crack cocaine.
The district court issued an order denying Holmes's motion to suppress evidence. The court found that Holmes was not handcuffed, nor were any weapons drawn by police during or after the stop.
In reviewing a district court's order on a motion to suppress, this court must defer to the district court's findings of fact unless clearly erroneous. State v. George , 557 N.W.2d 575, 578 (Minn. 1997). This court then independently reviews the facts and determines as a matter of law whether the evidence must be suppressed. State v. Othoudt , 482 N.W.2d 218, 221 (Minn. 1992).
Police stopped Holmes based on a physical description given in a search warrant for a black male known as "Duke." The description read:
Suspect #1, known as "Duke", who is a black male, weighing approximately 160 lbs and is 5'9" tall, 19-21 years of age, with his hair being worn in an afro style cut and a lite beard; * * * *.
A search warrant must describe with sufficient particularity "the place to be searched, and the persons or thing to be seized." U.S. Const. amend. IV.
A search warrant need not identify a suspect by name, but may rely on a physical description, as the search warrant did in this case. See 2 Wayne R. Lafave, Search and Seizure § 4.5(e), at 544 (3d ed. 1996). Holmes's argument that the search warrant authorized the stop and search of any black man seen in Duluth is without merit. Even if the description was inadequate, police had additional information justifying the stop, including several observations of Holmes in the company of men who matched the other descriptions in the search warrant, and surveillance outside his apartment in the Tri-Towers, where they smelled burning crack cocaine. Police had ample facts establishing a reasonable, articulable suspicion warranting an investigative stop.
Holmes argues that his consent to search was not voluntarily given. That argument, however, relies heavily on his assertion that he was handcuffed and that police drew a weapon during the stop. But the defense testimony supporting that claim was rejected by the district court. Credibility determinations are exclusively for the finder of fact. See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).
The voluntariness of a consent to search is a question of fact dependent on the facts of the case. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). The court must look at the totality of the circumstances to determine whether consent was voluntary. Id.
Police testified that Holmes was cooperative throughout the encounter, that they asked Holmes at the scene of the stop whether he would consent to a search of his apartment, that Holmes was outside of the squad car when this request was made, and that Holmes agreed to accompany the officers back to the apartment to allow a search. There is no evidence that police persistently asked for consent until Holmes relented. Cf. id. at 881 (consent not voluntary where officer's questions were "official and persistent" and defendant gave equivocal answers indicating a desire to fend off a search). Although police apparently did not tell Holmes he had a right to refuse, police read him the consent form, which includes an advisory on the right to refuse, before Holmes signed it. See id. (defendant's knowledge of right to refuse is only one factor in totality-of-the-circumstances test).
Holmes argues that he signed the consent form in a very coercive situation, comparable to the circumstances in State v. Bell , 557 N.W.2d 603 (Minn.App. 1996), review denied (Minn. Mar. 18, 1997), in which this court held the consent was not voluntary. But in Bell , the defendant was still in the locked squad car and had just been issued a warning ticket when police sought consent to search. Id. at 607. Police prolonged the routine traffic stop, based on a mere "hunch." Id. Here, Holmes was outside the squad car when police asked for his consent to search. The delay was partly a legitimate wait for the arrival of narcotics officers. Moreover, police had smelled burning crack cocaine outside Holmes's apartment, and he admitted he had smoked crack cocaine earlier. The prolongation of the stop was neither unreasonable nor coercive.
Holmes's argument that he should have been given a Miranda warning earlier, before any custodial interrogation occurred, is without merit. Similarly, his argument that police should have recorded their on-the-street request for consent to search, which was not an interrogation, lacks any legal authority. See State v. Scales , 518 N.W.2d 587, 592 (Minn. 1994) (holding that all custodial interrogation must be recorded when feasible or when occurring at place of detention).