State of Minnesota v. William Marvin Boyenga ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1623
State of Minnesota,
Respondent,
vs.
William Marvin Boyenga,
Appellant.
Filed May 26, 2015
Affirmed
Hooten, Judge
Mower County District Court
File No. 50-CR-13-2014
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kristen Nelson, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney,
Austin, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from his conviction of fifth-degree possession of a controlled substance,
appellant argues that the district court erred by denying his motion to suppress because
the evidence was obtained as the result of an unconstitutional search of his house. We
affirm.
FACTS
On the afternoon of September 3, 2013, Austin Police Officer Kris Stein
responded to a report of a hit-and-run accident. He learned that the suspect vehicle was a
black pickup truck. Austin Police Sergeant Joseph Milli, who was also on duty that day,
ran a license plate search on the suspect vehicle, which matched the plate number of an
older black pickup truck registered to appellant William Marvin Boyenga. Sergeant Milli
was familiar with Boyenga because, in 2004, he had executed a search warrant of
Boyenga’s house and had found a large amount of fresh marijuana. Boyenga’s house
was located three blocks from the location of the hit-and-run accident, and Sergeant Milli
went directly to the house.
When Sergeant Milli arrived at Boyenga’s house, he did not see a black pickup
truck in the driveway. Sergeant Milli indicated at the suppression hearing that the house
was located on the corner of two residential streets. The front door faced south, and the
side door faced east. Each door was visible from the street and had a sidewalk leading up
to it from the street, as well as a concrete stoop. There was an awning and a light fixture
above both doors. There were house numbers and a mailbox next to the front door, but
there were no railings outside the front door. The side door was closest to the garage, and
there were railings connected to the side-door stoop.
Sergeant Milli parked near the side door, then walked up and knocked on the door.
There was no response, but Sergeant Milli detected a faint odor of fresh marijuana
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coming from the house. He then walked over to the garage, looked into a garage
window, and saw a black pickup truck. The sergeant knocked on the side door again, but
again got no response. He looked into another garage window, saw that the license plate
matched the suspect vehicle, and noticed fresh damage on the vehicle. He then saw
Boyenga looking at him through the blinds inside the house, and the sergeant motioned
for him to come outside. By then, Officer Stein and another officer had arrived at
Boyenga’s house.
Boyenga exited the side door of his house. He walked into the yard and spoke
with the officers about the accident. He seemed confused by some of the questioning and
was not able to give his address. He also gave different versions of the accident. The
officers asked for his driver’s license and proof of insurance. Boyenga retrieved his
proof of insurance from inside his pickup truck, but stated that his driver’s license was
inside his house. Sergeant Milli testified to the following:
MILLI: [Boyenga] started towards the house. I followed him.
He opened the [side] door. He started [to go] in the house. I
took one step in. He turned around. He grabbed me by the
shoulders and tried to push me out, saying, “You can’t come
in here.”
PROSECUTOR: And what did you do?
MILLI: As soon as he opened the door, I was hit by an
overwhelming smell of fresh marijuana. When he grabbed
me and started pushing me, I grabbed him and I pulled him
out of the house.
Based on Sergeant Milli’s training and experience, he believed that there was a large
amount of marijuana growing in the house. After Boyenga and Sergeant Milli exited the
house, Boyenga was detained and eventually taken into custody.
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Officer Stein also testified at the suppression hearing and stated that he and
Sergeant Milli followed Boyenga from the yard to his house. He testified that, as he was
standing behind Sergeant Milli on the stoop, he immediately smelled a strong odor of
marijuana after Boyenga opened the side door.
Sergeant Milli called Austin Police Detective Travis Heickley and asked him to
come to the scene and assist. Detective Heickley later drafted a search warrant
application based on the officers’ suspicion that marijuana was present in the house. The
supporting affidavit to the warrant application indicates that Detective Heickley had over
26 years of law enforcement experience, was specially trained in narcotics investigations,
and had taken part in numerous narcotics investigations over the course of his career.
The affidavit also states in relevant part:
On this day, 09-03-2013 at approximately 1438
hours[,] Austin Police Sergeant Milli had arrived at
[Boyenga’s residence] to conduct a follow-up investigation
into a hit and run accident . . . .
Upon arriving at the residence . . . , Milli attempted to
contact the registered owner Boyenga at the residence with
negative results. . . . Milli [eventually] made contact with a
person at the residence who identified himself as Boyenga
who was occupying the residence and admitted to Milli of
being involved in an auto accident.
Milli observed Boyenga to be anxious and confused
and followed Boyenga back to his residence from the garage
to obtain his [driver’s] license. Milli followed behind
Boyenga into the residence and immediately recognized the
strong odor [of] fresh marijuana coming from the residence.
Boyenga pushed Sgt. Milli towards the residence exit door[,]
at which point in time Milli took physical custody of Boyenga
and arrested him. . . .
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Sgt. Milli then requested on-call Detective Heickley to
come to the scene based on observations Milli made from the
residence regarding the overwhelming presence of marijuana
odor from the residence. Upon arrival Detective Heickley
was advised of the situation and also observed the strong odor
of fresh marijuana from the back door steps.
Following Boyenga’s arrest[] officers observed the
resident windows to be covered and two security cameras
were installed on the outside of the residence perimeter. . . .
Heickley knows from past cases that Boyenga was
arrested on two prior occasions for 3rd degree possession of
marijuana with intent to sell . . . and felony 5th degree
controlled substance [crime] . . . . On both occasions
Boyenga had marijuana plants and grow equipment.
A search warrant was issued the same day, authorizing police to search Boyenga’s house
for marijuana and marijuana-related evidence. During the search, officers found fresh
marijuana plants, dried marijuana plants, marijuana seeds, drug paraphernalia, and
marijuana growing equipment. Police seized a total of 80.61 ounces of marijuana.
Boyenga was charged with one count of fifth-degree sale of a controlled substance
and one count of fifth-degree possession of a controlled substance. He moved to
suppress the evidence seized during the execution of the search warrant, claiming that the
search warrant was invalid because it included information obtained during an unlawful
entry into his house.
The district court denied Boyenga’s motion to suppress, reasoning that
it was not until Milli had partially entered the residence that
[Boyenga] turned and made his first and only action barring
either officer from entry. At no time prior did [Boyenga]
indicate to the officers that they were not allowed to follow
him into the house while he looked for his driver[’s]
license. . . . Officer Milli’s and Stein’s detection of the
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overpowering smell of marijuana occurred before either
officer entered the home. Both officers were lawfully present
at the door while investigating the traffic accident when they
first detected the [odor]. This occurred before either officer
stepped into the house. It was also detected inside the back
door by the officers before they were stopped by [Boyenga]
from proceeding any [farther] into the home. The detection
of the strong odor of fresh marijuana by either officer outside
of [the] home and just inside the door . . . was not obtained in
violation of [Boyenga’s constitutional rights].
After the district court denied the motion, the state dismissed the fifth-degree sale of a
controlled substance charge. Boyenga waived his right to a jury trial, and the district
court conducted a stipulated-evidence court trial pursuant to Minn. R. Crim. P. 26.01,
subd. 4. The district court found Boyenga guilty of fifth-degree possession of a
controlled substance and sentenced him to a stayed prison sentence of one year and one
day with conditions, including the requirement that he serve 180 days in jail. This appeal
followed.
DECISION
Boyenga argues that the evidence obtained as a result of the search warrant should
have been suppressed because Sergeant Milli’s entry into the house and his ensuing
observations violated the Fourth Amendment. In response, the state argues that the
officers smelled a strong odor of marijuana before entering Boyenga’s house and, in the
alternative, received implicit consent to enter the house.
“When reviewing pretrial orders on motions to suppress evidence, we may
independently review the facts and determine, as a matter of law, whether the district
court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590
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N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings of fact under a
clearly erroneous standard, but we review legal determinations de novo. State v. Bourke,
718 N.W.2d 922, 927 (Minn. 2006). Findings of fact are clearly erroneous if “we are left
with the definite and firm conviction that a mistake occurred.” State v. Diede, 795
N.W.2d 836, 846–47 (Minn. 2011). If there is reasonable evidence to support the district
court’s findings, we will not disturb them. State v. Rhoads, 813 N.W.2d 880, 885 (Minn.
2012).
The Fourth Amendment of the United States Constitution and article I, section 10,
of the Minnesota Constitution prohibit unreasonable searches and allows for the issuance
of search warrants only upon a showing of probable cause. U.S. Const. amend. IV;
Minn. Const. art. I, § 10. “The exclusionary rule generally requires the suppression of
evidence acquired as a direct or indirect result of an unlawful search.” State v. Lieberg,
553 N.W.2d 51, 55 (Minn. App. 1996).
When faced with a challenge to the validity of a search warrant, this court’s task
on appeal is to determine whether the issuing judge had a “substantial basis” for
concluding that probable cause existed. State v. Secord, 614 N.W.2d 227, 229 (Minn.
App. 2000) (quotation omitted), review denied (Minn. Sept. 13, 2000). We examine the
totality of the circumstances to make this determination. Id. The issuing judge is
required “to make a practical, commonsense decision” as to whether, given all the
circumstances set forth in the search warrant application, “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Id. (quotations
omitted). “In determining whether probable cause exists, both the district court and the
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reviewing court may consider only the information in the application for the search
warrant. We pay great deference to the district court’s determination of probable cause
supporting a search warrant.” Id. (quotation and citation omitted).
Boyenga does not dispute that the search warrant on its face was supported by
probable cause. The search warrant application states that Boyenga appeared to be
“anxious and confused” when he spoke to the officers about the hit-and-run accident. It
states that Sergeant Milli followed Boyenga “into the residence and immediately
recognized the strong odor [of] fresh marijuana coming from the residence.” The
application does not indicate whether Sergeant Milli had consent to enter Boyenga’s
house, and it does not clearly indicate where Sergeant Milli was standing when he first
detected the strong odor of marijuana. When Detective Heickley arrived, he “also
observed the strong odor of fresh marijuana from the [side] door steps.” The application
states that two security cameras were installed outside the house and also states that
Boyenga was arrested on two prior occasions for marijuana-related offenses. Based on
the totality of the circumstances, we conclude that the issuing judge had a substantial
basis for concluding that probable cause existed to believe that marijuana would be found
inside Boyenga’s house.
But, Boyenga argues that the search warrant was invalid because the evidence
relied upon for the search warrant, i.e., the strong order of marijuana, was obtained as a
result of the illegal entry by police into his house. Boyenga maintains that, absent the
illegal entry, the police officers would not have had sufficient evidence to obtain a search
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warrant, and the district court erred by denying his motion to suppress the evidence
obtained as a result of the execution of the search warrant.
“The right to be secure in the place which is one’s home, to be protected from
warrantless, nonconsensual intrusion into the privacy of one’s dwelling, is an important
[F]ourth [A]mendment right.” State v. Olson, 436 N.W.2d 92, 96 (Minn. 1989).
Warrantless searches are per se unreasonable, subject to limited exceptions. State v.
Othoudt, 482 N.W.2d 218, 221–22 (Minn. 1992). The state bears the burden of
establishing the existence of an exception to the warrant requirement. State v. Ture, 632
N.W.2d 621, 627 (Minn. 2001). “Generally, evidence seized in violation of the
[C]onstitution must be suppressed.” State v. Jackson, 742 N.W.2d 163, 177–78 (Minn.
2007).
The district court determined that Boyenga consented to Sergeant Milli’s entry
because “it was not until Milli had partially entered the residence that [Boyenga] turned
and made his first and only action barring either officer from entry. At no time prior did
[Boyenga] indicate to the officers that they were not allowed to follow him into the house
. . . .”
We disagree that Boyenga consented to Sergeant Milli’s entry. “[P]olice do not
need a warrant if the subject of the search consents.” State v. Brooks, 838 N.W.2d 563,
568 (Minn. 2013). To justify a warrantless search based on consent, the state must prove
that the consent was freely and voluntarily given. Id. We examine the totality of the
circumstances to determine whether consent was voluntary, including “the nature of the
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encounter, the kind of person the defendant is, and what was said and how it was said.”
State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).
The record indicates that Boyenga did not affirmatively invite either officer into
his house. The officers “did not knock or in any way seek permission to enter”
Boyenga’s house. Othoudt, 482 N.W.2d at 222. Nothing in the record indicates that
Boyenga’s conduct manifested consent—for example, he did not motion for the officers
to follow him, and he did not hold the door open for them. See id. at 223 (“We have
never found that a law enforcement officer had consent to enter a dwelling without
evidence of some indication, by someone, that the officer was invited inside.”). Not
explicitly objecting to an officer’s entry is insufficient to establish consent. Cf. Dezso,
512 N.W.2d at 880 (“Failure to object is not the same as consent.”). Because the state
did not prove that Boyenga consented to Sergeant Milli’s entry, the district court erred by
concluding that the police legally entered Boyenga’s house.
However, we conclude that the district court did not err in determining that the
evidence obtained by the police officers was not the product of Sergeant Milli’s illegal
entry. Based on the testimony of the police officers at the suppression hearing, the
district court found that Sergeant Milli and Officer Stein detected “the overpowering
smell of marijuana . . . before either officer entered the home.” Sergeant Milli testified
that, “[a]s soon as [Boyenga] opened the door, I was hit by an overwhelming smell of
fresh marijuana.” He also testified that, when Boyenga “initially opened the door to enter
the residence, I was hit with the smell of marijuana.” Officer Stein testified that, “[w]hen
the door was initially opened, I did smell a strong odor of marijuana.” He clarified that
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he smelled this strong odor while he “was still on the steps outside of the house to the
[side] door.” Both officers first detected the strong odor of marijuana as they were
standing on the side-door stoop of Boyenga’s house, which is a place where they were
lawfully allowed to stand. See State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987)
(“[P]olice do not need a warrant or even probable cause to approach a dwelling in order
to conduct an investigation if they restrict their movements to places visitors could be
expected to go (e.g., walkways, driveways, porches) . . . .” (Quotation omitted)). No
Fourth Amendment search took place when the officers initially observed the
incriminating evidence that led them to seek a search warrant. Moreover, Sergeant
Milli’s subsequent unconsented-to entry into Boyenga’s house did not yield any
additional incriminating evidence because Sergeant Milli made no additional
observations from that standpoint. See Segura v. United States, 468 U.S. 796, 815, 104
S. Ct. 3380, 3391 (1984) (“[E]vidence will not be excluded as ‘fruit’ unless the illegality
is at least the ‘but for’ cause of the discovery of the evidence. Suppression is not justified
unless the challenged evidence is in some sense the product of illegal governmental
activity.” (Emphasis added.) (Quotation omitted.)).
The record supports the district court’s finding that the critical evidence utilized in
the search warrant was obtained prior to Sergeant Milli’s entry into Boyenga’s house: a
strong odor of fresh marijuana emanating from inside the house—an odor that was strong
enough to lead the officers to suspect that there was a felony-level amount of fresh
marijuana inside the house. The exclusionary rule does not apply here because the
exclusionary rule prohibits only the “introduction of evidence seized during an unlawful
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search.” State v. Lozar, 458 N.W.2d 434, 438 (Minn. App. 1990) (emphasis added),
review denied (Minn. Sept. 28, 1990).
Because there was no violation of Boyenga’s Fourth Amendment rights and the
evidence utilized in the search warrant was lawfully obtained, we conclude that the
district court did not err by denying Boyenga’s motion to suppress.
Affirmed.
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