Opinion
A19-1296
07-13-2020
State of Minnesota, Respondent, v. Shannon Lee Londo, Appellant.
Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul, Minnesota; and Jonathan D. Frieden, Hubbard County Attorney, Park Rapids, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Davi Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018). Affirmed in part, reversed in part, and remanded
Connolly, Judge Hubbard County District Court
File No. 29-CR-18-1077 Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul, Minnesota; and Jonathan D. Frieden, Hubbard County Attorney, Park Rapids, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Davi Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Rodenberg, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges (1) his conviction for drug possession, arguing that his motion to suppress the evidence of a syringe taken from his pocket should have been granted because the search was not valid as a search incident to arrest; (2) his probation condition that he submit to random searches and random testing, arguing that it violates his Fourth Amendment rights and his right to privacy; (3) his convictions for both DWI—driving under the influence of alcohol and DWI—test refusal, arguing that one of them is precluded as a part of the same behavioral incident; and (4) his sentences for both drug possession and test refusal, arguing that they are part of the same behavioral incident. Because the search of appellant's pocket was a valid search incident to arrest and because the probation condition does not violate any of appellant's rights, we affirm both the drug-possession conviction and the imposition of that condition. But because both driving while under the influence of alcohol and test refusal were part of the same behavioral incident, we vacate his conviction for test refusal and remand for sentencing on his conviction for driving while under the influence of alcohol.
Appellant also challenges the district court's conclusion that the search was valid as a pat-down search. Because this issue is rendered moot by our affirmance of the district court's conclusion that the search was valid as incident to a lawful arrest, we do not address it.
FACTS
Following an incident in September 2018, appellant Shannon Londo was charged with fifth-degree drug possession, second-degree DWI—test refusal, third-degree driving under the influence of alcohol, and giving a peace officer a false name. Appellant's motion to suppress the evidence of drug possession was denied. Following a stipulated-facts trial, appellant was convicted on all four counts.
Appellant was also convicted of, but not sentenced for, giving a false name to a police officer; he does not challenge this conviction.
He was sentenced for drug possession to 17 months in prison, the presumptive term, stayed for three years, and for test refusal for one year in jail, with 350 days stayed for three years. His probation carried the condition that he submit to random searches and random testing.
Appellant now challenges his convictions, his sentence, and his probation condition.
DECISION
1. Conviction for drug possession
In reviewing whether a valid exception to the warrant requirement existed so as to justify a warrantless search or seizure, an appellate court reviews the district court's factual findings for clear error and its legal conclusions de novo. State v. Stavish, 868 N.W.2d 670, 677 (Minn. 2015).
The district court found that a police officer had stopped a vehicle that had a white light coming from the right rear taillight; when the vehicle stopped, the officer noted that the right brake light was not working. The driver, who was eventually identified as appellant, said he did not have his license or an ID with him and gave another person's name and birth date. The officer observed a bottle of an alcoholic beverage on the floor and noticed that appellant was trying to hide it with his feet; she also noted that the vehicle smelled of alcohol and that appellant was lethargic, his speech was slurred, and his eyes were glassy. After learning that the driver's license of the person whose name appellant had given was revoked, the officer returned to the vehicle, told appellant she smelled alcohol, and asked if he had been drinking. Appellant first denied drinking, then admitted to having had two beers earlier that evening.
The officer asked him to perform field sobriety tests. On both the Walk and Turn test and the One Leg Stand test, appellant started early and used his arms for balance; he also made an improper turn on the Walk and Turn test and set his foot down at count 18 in 30 seconds on the One Leg Stand test. A preliminary breath test indicated an alcohol concentration of 0.06. The officer believed appellant to be under the influence of an intoxicating substance. Based on these findings, the district court concluded that the officer "had probable cause to arrest [appellant] for driving while impaired prior to the search [of his pocket] and the search was valid as a search incident to arrest."
The district court did not err in denying appellant's motion to suppress the evidence of the syringe because that evidence was discovered during a valid search incident to appellant's arrest. See State v. Bernard, 859 N.W.2d 762, 768 (Minn. 2015) ("[P]olice may conduct a search of the person of an arrestee by virtue of the lawful arrest." (quotation omitted)).
2. Conditions of Probation
At the sentencing hearing, the district court set as conditions for appellant's probation "That you not possess or use any alcoholic beverages or drugs. That you submit to . . . random testing by probation, searches consistent with Minnesota law." Appellant's warrant of commitment included as conditions of probation: "No alcohol/controlled substance use with the exception of prescribed medications," "No possession of alcohol or drugs," "Random testing upon direction of agent," "Subject to Random Searches upon suspicion consistent with Minnesota law," and "Cooperate with the search of your person . . . as directed by your probation officer." Any conditions of probation, imposed as part of a stayed sentence, are reviewed for an abuse of discretion. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).
A. Fourth Amendment Rights
Appellant argues that these conditions violate his Fourth Amendment rights because "searches of [appellant's] person . . . as directed by his probation officers must be supported by reasonable suspicion." With a "But see" citation, appellant concedes that this court has recently rejected this view in State v. Reyes, No. A19-0647, 2020 WL 132538 at *1 (Minn. App. Jan. 13, 2020) (concerning a probationer's argument that "the search condition violates the Fourth Amendment because searches of a probationer must be supported by reasonable suspicion.")
We reject [the] contention that a district court must specify the legal standard [i.e., reasonable suspicion] for a search of a probationer's person . . . when requiring a probationer to submit to these searches as part of a stayed sentence. [A] sentencing court . . . need not . . . state the legal standard established by caselaw because the probation officer is presumed to know the standard.Reyes, 2020 WL 132538 at *2.
Appellant relies on two cases: United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001), and State v. Anderson, 733 N.W.2d 128 (Minn. 2007). Appellant claims these cases hold that reasonable suspicion is required for a probation officer's search of a probationer's person. But appellant misreads the cases, neither of which involved a probation condition that imposed a "reasonable suspicion" requirement on random searches or a search of the probationer's person.
In Knights, a detective searched the apartment of a probationer suspected of arson and vandalism and found a detonation cord, ammunition, liquid chemicals, and instruction manuals on chemicals and electrical circuitry. 534 U.S. at 115, 122 S. Ct. at 589. "[The probationer] concedes[] that the search in this case was supported by reasonable suspicion. We therefore hold that the warrantless search of [the probationer's apartment], supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment." Id. at 122, 122 S. Ct. at 593. The Supreme Court noted that probationers are necessarily deprived of some of the freedoms enjoyed by law-abiding citizens, are more likely than the ordinary citizen to commit crime, and have more of an incentive to conceal criminal activities and dispose of incriminating evidence because "probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply." Id. at 119-20, 122 S. Ct. at 591-92.
In Anderson, the probationer had agreed to the condition that, "when ordered by his Agent, [he] submit to search of his person, residence, or any other property under his control." 733 N.W.2d at 131. His probation officer, after receiving information that the probationer had been arrested for domestic assault in Wisconsin and a call from the victim's mother reporting that the probationer had guns in his bedroom, searched the house. Id. at 132.
Anderson adopted the balancing test set out in Knights.
[The probationer's] reasonable expectation of privacy was diminished merely by virtue of his status as a probationer . . . [and] we recognize the state's legitimate interest in ensuring that [the probationer] abides by the terms of his probation—one of which prohibits him from possessing a firearm. . . .Id. at 139-40. Neither Knights nor Anderson supports appellant's view that his probation condition violated the Fourth Amendment simply because it did not state explicitly that his probation officer had to have "reasonable suspicion" before searching appellant.
Balancing [the probationer's] expectation of privacy against the government's interests under the circumstances of this case, we conclude that the Fourth Amendment required no more than reasonable suspicion to conduct a search of [the probationer's] residence.
B. Random Searches for Evidence of Drugs or Alcohol
Because appellant had been convicted of driving under the influence of alcohol and illegally possessing a controlled substance, the conditions that he abstain from use or possession of drugs or alcohol and that he submit to random testing to demonstrate his compliance were reasonably related to at least one purpose of probation: deterring future criminal behavior. See State v. Jones, 869 N.W.2d 24, 29 (Minn. 2015) (setting out purposes of probation); Minn. Stat. § 609.02, subd. 15 (2018) (same).
Appellant argues that "[r]andom suspicionless breath and urine tests of probationers are unreasonable searches under the Fourth Amendment," that any probation condition allowing them is unconstitutional, and that the part of the district court order imposing that condition must be reversed. But appellant offers no support for this argument, and Reyes refutes it.
We conclude that the district court did not abuse its discretion in requiring [the probationer] to submit to random chemical testing by probation. . . . Probation officers assist probationers to achieve rehabilitation and to effectively do so, probation officers need up to date knowledge of the probationer's personal habits, relationships, and activities. Also, a probation system present special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Thus random chemical testing by probation is reasonably related to the purposes of probation without being unduly restrictive.Reyes, 2020 WL 132538 at *3 (quotations and citations omitted).
Reyes, an unpublished opinion, has no precedential value, but we find its reasoning persuasive. See Kruse v. Comm'r of Pub. Safety, 904 N.W.2d 554, 559 (noting that unpublished opinions of this court are not precedential but may be persuasive).
Appellant also argues that, because "the government's interests in supervising probation can be accomplished through breath and urine tests supported by reasonable suspicion," the privacy implications of those tests outweigh the government's need to conduct them randomly and without suspicion. Appellant concedes that the privacy implications of a breath test are minimal, but relies on State v. Thompson, 886 N.W.2d 224, 232 (Minn. 2016) (noting that "urine testing involves a much greater privacy invasion in terms of embarrassment" than blood testing) to argue that the privacy implications of a urine test are significant. But Thompson is distinguishable: it concerned the testing of a DWI suspect, not yet charged with a crime, much less convicted of one; appellant, a probationer, had been charged, convicted, and sentenced, and his sentence included an agreement to submit to random chemical testing.
The requirement that probationers submit to random chemical tests at the direction of their probation officers to ascertain their compliance with the condition that they abstain from the use of drugs and alcohol does not violate the Fourth Amendment.
3. Convictions
Appellant was convicted on both count 2, second-degree DWI—test refusal, and count 3, third-degree DWI—driving under the influence of alcohol. He argues that he should not have been convicted on both counts because they were both violations of Minn. Stat. § 169A.20, subd. 2 (test refusal), and subd. 1(1) (driving under the influence of alcohol) (2018). "[M]ultiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident" are barred by Minn. Stat. § 609.04 (2018). State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (requiring that one of two convictions for violations of different subdivisions of Minn. Stat. § 609.625 (1982) be vacated) (emphasis added).
But see State v. St. John, 847 N.W.2d 704, 707-08 (Minn. App. 2014) (holding that a driver could be convicted of the same two DWI offenses as appellant's and concluding that "the district court erred by dismissing the charge for driving under the influence [b]ecause the third-degree offense [driving under the influence] was not an included offense of the second-degree offense [refusing to submit to testing]"). Having concluded that the included-offense analysis set out in Minn. Stat. § 609.04 did not preclude convictions for both DWI offenses, St. John did not consider whether the single-behavioral-incident analysis set out in Jackson would bar them, although it relied on Simon to support its conclusion that only one of the convictions could be sentenced because they were part of the same behavioral incident. Id. at 708. There appears to be no published caselaw addressing whether Jackson applies to these two offenses.
Appellant's two DWI offenses satisfy the first prong of Jackson: they were both violations of Minn. Stat. § 169A.20. They have also been held to satisfy the second prong: "[I]n our view, the two offenses, gross misdemeanor [driving while impaired] and gross misdemeanor refusal to submit to testing, arose from a single behavioral incident." State v. Simon, 493 N.W.2d 528, 528 (Minn. 1992) (mem.) (emphasis added). Thus, the matter should be remanded for reversal of appellant's test-refusal conviction. See State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (citing the statute prohibiting multiple sentences for persons whose conduct constitutes more than one offense, Minn. Stat. § 609.035, which "contemplates that a defendant will be punished for the most serious offense of the offenses arising out of a single behavioral incident" (quotation omitted); St. John, 847 N.W.2d at 709 ("We conclude that third-degree driving under the influence is a more serious offense than second-degree test refusal.").
4. Sentencing
Appellant was sentenced on fifth-degree drug possession and on second-degree DWI—test refusal, but not on third degree DWI—driving under the influence of alcohol. Both parties agree that appellant should not have been sentenced on test refusal. The state relies on St. John, 847 N.W.2d at 709, to argue that the district court erred in sentencing appellant on the less serious offense of test refusal rather than on the more serious offense of driving under the influence, and appellant does not directly refute this argument. In any event, if appellant's conviction of test-refusal is vacated, he could be sentenced on driving under the influence.
Appellant argues that his possession of methamphetamine and his test refusal were part of a single behavioral incident and therefore could not both be sentenced. For this argument, he relies on State v. Guscette, A13-2402, 2015 WL 506363, at *7 (Minn. App. Feb. 9, 2015) (holding that possession of methamphetamine and driving while under the influence of methamphetamine are part of the same behavioral incident), review denied (Minn. Apr. 14, 2015).
Two offenses are part of the same behavioral incident if they "arose from a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment." State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991) (quotation omitted). The offenses in Guscette met this standard: the decisions to possess methamphetamine and to drive while under its influence show an indivisible state of mind, while appellant's decisions to possess methamphetamine and to consume alcohol and drive while under its influence do not show an indivisible state of mind. Guscette is therefore distinguishable.
We affirm appellant's convictions on possession of methamphetamine and driving under the influence of alcohol, reverse and vacate his conviction and sentence for test refusal, and remand for sentencing on driving while under the influence of alcohol.
Affirmed in part, reversed in part, and remanded.