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STATE OF MINNESOTA IN SUPREME COURT A09-1120

Court of Appeals

Meyer, J. Dissenting, Dietzen, J., Gildea, C.J., and Stras, J.

State of Minnesota, Respondent, vs. Erika Lynn Diede, Appellant. ________________________ Lori Swanson, Attorney General, Kimberly R. Parker, Assistant Attorney General, St. Paul, Minnesota, for respondent. David W. Merchant, Chief Appellate Public Defender, Jessica Merz Godes, Assistant State Public Defender, St. Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. The police had a reasonable articulable suspicion that appellant was Filed: March 30, 2011 Office of Appellate Courts

engaged in criminal activity that warranted a temporary seizure of appellant to investigate the display of license plates registered to a different motor vehicle, but did not have reasonable articulable suspicion that appellant was engaged in the criminal activity of possessing a controlled substance.

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2.

The police investigative questioning, consent inquiry, and subsequent

search went beyond the scope of the lawful investigation of the license plates and the expansion of the police investigation was not supported by a reasonable articulable suspicion that appellant was engaged in drug-related criminal activity. 3. Even if the police had articulated a reasonable suspicion that appellant was

engaged in drug-related criminal activity, appellant did not voluntarily consent to the search of her cigarette package because appellant expressly refused to consent to a search of the package moments before she acquiesced to the police officer's repeated request that she open the package. 4. The doctrine of inevitable discovery does not apply on the facts of this case.

Reversed. OPINION MEYER, Justice. Appellant Erika Diede was charged with fifth-degree possession of a controlled substance as the result of a search and seizure conducted after the police had arrested the passenger of a truck she was driving. Before trial, Diede moved to suppress evidence of possession of methamphetamine on the basis that it was the result of an illegal search and seizure. The district court denied the motion, held a trial on stipulated facts, and found Diede guilty of fifth-degree possession of a controlled substance. The court of appeals affirmed. Diede brought this appeal, arguing that the police conduct was not justified by reasonable articulable suspicion of criminal activity and that she did not voluntarily consent to a search of her cigarette package. 2 In addition to challenging Diede's

arguments, the State asserts that we should affirm the district court's denial of Diede's suppression motion because the methamphetamine would inevitably have been discovered through lawful means. We reverse. The parties stipulated to the following facts. On April 22, 2008, Otter Tail County Detective Rod Jensen, driving an unmarked police car, was conducting surveillance of Jason Hanson's residence. Detective Jensen planned to make "a probable cause arrest on Hanson for previous narcotics sales."1 At about 4:09 p.m., Hanson and Erika Diede, both of whom Detective Jensen recognized, left the residence in a gray Chevrolet pickup truck. Detective Jensen called for backup and followed the truck as Diede drove it to the trailer home where Diede and John Hanson lived. As Detective Jensen followed the truck, he checked the truck's license plate and found that the plate, which was registered to John Hanson, was for a red Mazda truck, not a gray Chevrolet. After the truck and Detective Jensen arrived at the trailer home, Detective Jensen got out of his car. Detective Jensen saw Hanson open the passenger door, turn his legs out of the vehicle, look in Jensen's direction, and move his right hand as if reaching in his pocket. It appeared to Detective Jensen that as Hanson got out of the truck, Hanson tossed something back onto the truck seat. Diede remained in the truck, talking on her cell phone.

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The record does not indicate whether a warrant had been issued for Hanson's arrest or whether there was any formal determination of probable cause.

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Detective Jensen approached the truck and arrested Hanson. Diede got out of the truck about 30 seconds later. Detective Jensen told her to stay where she was and that he needed to speak with her. At roughly the same time, two special agents from the West Central Minnesota Drug Task Force (WCMDTF) and a sheriff's deputy with a police dog arrived. The deputy put Hanson in the deputy's squad car. Detective Jensen asked Diede if she had seen Hanson throw anything into the vehicle. She replied that she had not. Detective Jensen noticed that Diede kept her hands in her sweatshirt pockets. When he asked what she had in her pockets, Diede replied that she had a package of cigarettes and a lighter, and pulled both out of her pockets. Detective Jensen, who knew from his experience and training that drugs are sometimes concealed in cigarette packages, asked if he could look inside the cigarette package. Diede replied that he did not have any right to do so. Special Agent Haberer of the WCMDTF approached Diede and Detective Jensen. He noticed that Diede seemed nervous and asked Diede to turn out her pockets. Diede did so. Special Agent Haberer asked if she had anything else. Diede produced a cigarette package. At this point, the two police reports differ. According to Detective Jensen's report, she immediately flipped open the top of the cigarette package. According to Special Agent Haberer's report, Detective Jensen asked Diede to open the cover and she complied. The reports agree that the open package revealed the ends of a plastic baggie and that Diede quickly closed then started to crush the box. Detective Jensen and Special Agent Haberer physically restrained her and pried the cigarette package out of her hand.

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Diede was handcuffed and told that she was under arrest. She asked if she could get some money from inside the trailer home so that she could buy a calling card when she arrived at the jail. Special Agent Haberer agreed. He and another agent followed her into the home, where he saw a marijuana pipe in plain view. Special Agent Haberer told Diede that he could get a search warrant based on the pipe, asked if she had any other illegal items, and Diede handed over a glass methamphetamine pipe. After Diede and Special Agent Haberer left the home, Detective Jensen asked Diede about the mismatched license plate. She said that they had just switched over the license plates three days earlier. Detective Jensen and Special Agent Haberer

accompanied her back into the home where she produced the appropriate paperwork. A field test later confirmed that the baggie found in Diede's cigarette package contained methamphetamine and weighed 0.3 grams. Diede was charged with fifthdegree possession of a controlled substance based on the methamphetamine. Diede moved to suppress the methamphetamine evidence, arguing that she was illegally seized and that the police illegally expanded the scope of her detention. The district court denied the motion. Following the order, the parties submitted the case to the court under stipulated facts based on the two police reports.2 The court found Diede

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The parties described the process as a trial on stipulated facts. See Minn. R. Crim. P. 26.01, subd. 3. The court described the process as a Lothenbach plea hearing. State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), was superseded by Minn. R. Crim. P. 26.01, subd. 4, which the process at the district court most closely resembles.

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guilty and sentenced her to ten years probation. Diede appealed. The court of appeals affirmed. See State v. Diede, No. A09-1120, 2010 WL 1541335, at *4 (Minn. App. Apr. 20, 2010). Diede filed a petition for review, which we granted. Diede argues that the district court erred in not suppressing the methamphetamine evidence because (1) when the police officers seized Diede, the police did not have an objectively reasonable suspicion that she was involved in criminal activity, and (2) she did not consent to the search of her cigarette package. In addition to challenging Diede's arguments, the State asserts that we should affirm the district court's denial of Diede's suppression motion because the methamphetamine would inevitably have been discovered through lawful means. I. We first address Diede's argument that the police failed to articulate a reasonable suspicion that she was involved in criminal activity at the time she was seized. The parties agree that the police seized Diede when Detective Jensen told her to remain next to the truck and that he needed to speak with her. The United States and Minnesota Constitutions protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; accord Minn. Const. art. I,

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