# State v. Diede > Supreme Court of Minnesota · March 30, 2011 · 795 N.W.2d 836 URL: https://www.frixlaw.com/law-library/cases/8245527 ## Case - **Full name:** STATE of Minnesota v. Erika Lynn DIEDE - **Court:** Supreme Court of Minnesota - **Decided:** March 30, 2011 - **Citations:** 795 N.W.2d 836; 2011 Minn. LEXIS 137; 2011 WL 1135510 - **Precedential status:** Published - **Opinion:** Dissent by Dietzen - **Judges:** Dietzen, Gildea, Meyer, Stras - **Cited by:** 181 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8245527 ## How later opinions describe it (automated extraction) - stating that suppression of evidence found in an illegal search is not required where the State establishes that the evidence “ultimately or inevitably” would have been discovered by lawful means, but precluding the argument that law enforcement could have conducted a constitu… - stating that “[t]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact,” and that “the ‘clearly erroneous’ standard controls [an appellate court’s] review of a district court’s find… - explaining that “Diede’s nervousness in response to questioning by multiple police officers after her passenger had been arrested and her denial that she had seen Hanson toss something into the truck were not enough to establish reasonable suspicion that she possessed a contro… - explaining that reasonable suspicion must be “based on specific, articulable facts” that allow the officer “to articulate at the omnibus hearing that he or she had a particularized and objective basis for suspecting the seized person of criminal activity” - concluding that defendant did not voluntarily consent to search when she initially refused to consent but acquiesced to search after multiple, persistent requests from officers ## Opinion text DISSENT DIETZEN, Justice (dissenting). When police approached Diede’s stopped truck, it is undisputed that they had probable cause to arrest the passenger, Hanson, for the sale of illegal drugs. At the time Hanson left the truck, the police observed unusual conduct that they believed might have been a drug-related exchange from Hanson to Diede. Based upon the totality of the circumstances and the reasonable inferences from those facts, the officers had a reasonable articulable suspicion that Diede may have been involved in criminal activity that warranted further investigation. Subsequently, the police officers questioned Diede, and the district court found that she voluntarily consented to the search of her cigarette package, which resulted in the discovery of illegal drugs. The district court’s findings are not clearly erroneous. In my view, the majority applies a standard that resembles probable cause, rather than the reasonable articulable suspicion standard. Also, it fails to consider the totality of the circumstances at the time of the seizure and the reasonable inferences from those facts from the perspective of a reasonable police officer. Further, the majority disregards the findings of the district court that Diede voluntarily consented to the search. Accordingly, I respectfully dissent. I. I first address whether the police officers had a reasonable articulable suspicion that Diede was involved in drug-related criminal activity at the time she was seized. "When applying the reasonable ar-ticulable suspicion standard, we must examine the totality of the circumstances at the time of the seizure. State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998). Generally, a police officer may “stop and temporarily seize a person to investigate that person for criminal wrongdoing if the officer reasonably suspects that person of criminal activity.” State v. Cripps, 538 N.W.2d 388 , 391 (Minn.1995). Reasonable articulable suspicion must be based on “ ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” State v. Davis, 732 N.W.2d 173, 182 (Minn.2007) (quoting Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). Thus, “the officer must be able to point to something that objectively supports the suspicion at issue.” Id. (internal quotation marks omitted). The court, however, should not consider the individual facts in isolation. Rather, the court should examine the totality of the circumstances at the time of the seizure and the reasonable inferences from those facts from the perspective of a reasonable police officer. See Martinson, 581 N.W.2d at 852 . The standard is met when an officer “observes unusual conduct that leads the officer to reasonably conclude in light of his or her experience that criminal activity *851 may be afoot.” In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn.1997). Significantly, the reasonable articulable suspicion standard is “not high,” and is less demanding than either the probable cause or preponderance of the evidence standards. State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008) (internal quotation marks omitted). Previous decisions of this court demonstrate that the standard is a low one. See, e.g., Timberlake, 744 N.W.2d at 397 (concluding that the police had reasonable articulable suspicion that the defendant was engaged in criminal activity based on a reliable informant’s report that the defendant was carrying a gun in a motor vehicle); State v. Flowers, 734 N.W.2d 239, 252 (Minn.2007) (concluding that the defendant’s “suspicious movements” in the vehicle, which occurred after police officers directed him to stop his vehicle, gave the officers a reasonable ar-ticulable suspicion that he may have been involved in some type of criminal activity (internal quotation marks omitted)); Cripps, 533 N.W.2d at 392 (“An officer can justify an investigative seizure of a person who is in a bar if that person appears to the officer to be under the legal age to consume alcohol.”). Diede’s motion to suppress was submitted to the court upon the reports of Agent Haberer of the West Central Minnesota Drug Task Force and Detective Jensen of the Otter Tail County Sheriffs Office. We give the reports “the same force and effect as though the witnesses had testified in open court.” Leskinen v. Pucelj, 262 Minn. 461, 463 , 115 N.W.2d 346, 349 (1962). The district court concluded that six facts contained in the reports supported its determination that the reasonable articulable suspicion standard had been satisfied. The majority analyzes four of these facts to determine whether the initial seizure was justified. 1 I disagree with the approach of the majority in its evaluation of these four facts. Specifically, the majority examines each of these facts in isolation and concludes that the facts do not meet the reasonable artic-ulable suspicion standard. But our case law requires that we examine the totality of the circumstances at the time of the seizure, and the rational inferences from those facts, from the perspective of a reasonable police officer. Additionally, when Diede was seized, she was driving a gray Chevrolet with mismatched license plates. This fact was in existence at the time of the seizure, and therefore should be considered in evaluating the totality of the circumstances at the time of Diede’s seizure. 2 The totality of circumstances at the time of the seizure are: (1) Diede was driving a truck with mismatched license plates; (2) her passenger, Hanson, was subject to arrest on probable cause for previous sales of narcotics; (3) when Hanson exited Die-de’s truck, Detective Jensen observed Hanson reach into his pocket and toss something back into the truck; and (4) Diede remained in the truck. Based on this observed conduct and his experience *852 as a police detective, Detective Jensen could reasonably infer: (5) Hanson was trying to hide an exchange of contraband with Diede; and (6) Diede may have been involved in drug-related criminal activity that warranted further investigation. When these facts and rational inferences are considered in combination, the reasonable articulable suspicion standard is satisfied. Mismatched plates are a sufficient reason for a traffic stop. See, e.g., State v. Barber, 308 Minn. 204, 205-06 , 241 N.W.2d 476 -77 (1976). Moreover, “[ejvidence of tampering or unauthorized replacement of license plates, or other indications that the vehicle’s occupants are attempting to conceal their identity, or the ownership of the vehicle, can be suggestive of ongoing criminal activity.” State v. Britton, 604 N.W.2d 84, 89 (Minn.2000). Additionally, Diede’s passenger was a known drug dealer who was being arrested for prior narcotics sales. The majority correctly points out that merely associating with a person involved in criminal activity is not, by itself, enough to support a seizure. See Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979). But associating with such a person may be added to other facts to support a lawful seizure. See id. (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” (emphasis added)). Diede’s proximity to Hanson when Hanson threw something back into the front of the truck where Diede was sitting supports the reasonable inference that an exchange may have occurred. While these facts may not be sufficient to support probable cause, that is not the question here. Rather, the applicable standard is reasonable suspicion, which is less exacting and requires only that the police officer have a suspicion of criminal activity that is reasonable and articulable. Here, Detective Jensen suspected drug-related criminal activity, and his suspicion was both reasonable and articulable. Specifically, combining the fact that Diede’s truck had mismatched license plates with the facts that Hanson was a known drug dealer and Diede was in the driver’s seat when Hanson threw something into the front of her truck supports the reasonable inference that a drug-related exchange may have occurred. Consequently, Detective Jensen was justified in seizing Diede and asking her about Hanson’s unusual conduct in throwing something back into the truck, and whether an exchange took place. After the seizure, Detective Jensen approached Diede and asked her whether Hanson had thrown anything into the truck. Diede denied that she had seen Hanson throw anything into the truck. Agent Haberer’s report states that when Diede responded to Detective Jensen’s questions she was “very nervous,” “fidgety,” and “her voice was quivering.” Based upon these additional facts, Detective Jensen could have reasonably concluded that Diede was lying when she denied seeing Hanson throw anything into the truck. While nervousness alone may not be sufficient to provide a reasonable suspicion of criminal activity, it may be added to the totality of other circumstances to support a conclusion that drug-related criminal activity is afoot. See Martinson, 581 N.W.2d at 852 (including nervousness during a conversation with police officers as part of the totality of the circumstances providing a reasonable articulable suspicion of drug-related criminal activity). These additional objective facts — Diede’s denial of seeing something that the officer observed, and her nervous demeanor — support the continuation of the officer’s investigation. See State v. Moffatt, 450 N.W.2d 116, 119 (Minn.1990) (stating that United States v. *853 Sharpe, 470 U.S. 675 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985), “makes it clear that as long as the reasonable suspicion for the detention remains, the police may continue the detention provided they act diligently and reasonably.”) Subsequently, Detective Jensen asked Diede what she had in her pockets and she produced a cigarette package and a lighter. Relying on his “experience and training,” Detective Jensen had a reasonable suspicion that drugs may have been in the cigarette package, and was justified in requesting that Diede open the cigarette package. Accordingly, I would conclude that throughout the stop, Detective Jensen had a reasonable articulable suspicion to support his investigation into whether illegal drug-related activity was afoot. II. I next address whether Diede voluntarily consented to the search of her cigarette package when she flipped open the package in front of the police officers. Generally, a search requires a validly issued warrant; however, certain exceptions to the Fourth Amendment warrant requirement have been recognized. One of those exceptions is voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). A finding of voluntary consent is a factual determination reached by reviewing “the totality of the circumstances, including the nature of the 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 (Minn.1994). Various other factors must be considered, including: (1) the time of day at which consent was supposedly obtained, (2) whether the defendant was subject to persistent police questioning, and (3) whether the defendant’s answers were equivocal. State v. Harris, 590 N.W.2d 90, 103 (Minn.1999); see also Dezso, 512 N.W.2d at 880-81 (concluding that consent was involuntary when a defendant was placed in a police car and subject to an ongoing series of requests to examine his wallet). We have also looked at the manner of questioning by the officers, evaluating whether the officers acted in a “threatening way or ... in any way other than professionally.” State v. Smallwood, 594 N.W.2d 144, 155 (Minn.1999). Finally, consent may be implied from conduct, State v. Othoudt, 482 N.W.2d 218, 222 (Minn.1992), but failure to object is not the same as consent, Dezso, 512 N.W.2d at 880 . Consent is a question of fact, and therefore we will defer to the findings of the district court on the voluntariness of the consent, unless those findings are clearly erroneous. Bustamonte, 412 U.S. at 227 , 93 S.Ct. 2041 ; State v. Hummel, 483 N.W.2d 68, 73 (Minn.1992); see also State v. McDonough, 631 N.W.2d 373, 390 (Minn.2001) (“We will not disturb the district court’s findings unless they are clearly erroneous.”). 3 The district court’s find *854 ings are clearly erroneous only if, after reviewing the evidence, we are left with the definite and firm conviction that a mistake occurred. State v. Andersen, 784 N.W.2d 320, 334 (Minn.2010). The majority rejects the findings of the district court, and concludes the police officers used “persistent questioning under coercive circumstances” to obtain Diede’s consent to the search. Because I conclude that the district court’s findings are not clearly erroneous, I disagree. Detective Jensen stated that he initially asked Diede if he could look inside the cigarette package, and she responded that he “did not have any right to do so.” Agent Haberer then joined the two of them and asked Diede if she had anything else on her person, and Diede then “flipped the top of [the cigarette package] open.” Agent Haberer stated, however, that after Detective Jensen asked Diede to open the package, Diede “quickly lifted the cover open.” The district court found that Diede “voluntarily consented to the search of the cigarette pack by removing it from her pocket and flipping the top of the cigarette pack open.” The court reviewed the discrepancy between Detective Jensen and Agent Haberer’s statements over whether Diede opened the package in response to a direct question from Detective Jensen or of her own volition, but found that under either scenario “[Diede] voluntarily consented to the search.” Additionally, the court found “[n]o evidence was introduced to demonstrate that the officers coerced [Diede] into [opening her cigarette package] or that [Diede’s] will was otherwise overborne.” The record supports the finding of the district court that Diede’s consent was voluntary. While Diede initially refused to consent to the search, we have never held that a defendant cannot change her mind and later consent to a search. See, e.g., Dezso, 512 N.W.2d at 880 (stating that an evaluation of the voluntariness of consent depends on the totality of the circumstances). Rather, consent is analyzed based on the totality of the circumstances, which includes consideration of any subsequent actions supporting a finding of consent. In my view, the majority goes too far, and simply substitutes its own judgment for that of the district court. Simply stated, a finding is not clearly erroneous because an appellate court might have resolved the question differently. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn.1989) (“An appellate court exceeds its proper scope of review when it bases its conclusions on its own interpretation of the evidence and, in effect tries the issues anew and substitutes its own findings for those of the trial judge.”); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn.1999) (“An appellate court may not reverse a trial court due to mere disagreement with its findings.”); Gjovik v. Strope, 401 N.W.2d 664, 668 (Minn.1987) (stating an appellate court “should not substitute its findings for that of the trial court merely because it feels that the case was wrongly decided”). Rather, pursuant to the clearly erroneous standard, a finding by the district court will stand unless it “is not reasonably supported by the evidence as a whole.” EOP-Nicollet Mall, L.L.C. v. County of Hennepin, 723 N.W.2d 270, 284 (Minn.2006) (internal quotation marks omitted). Both police officers stated that Diede voluntarily opened the cigarette package. There is no evidence that the first request made by Detective Jensen, or the later *855 request by Agent Haberer, was persistent and coercive. Rather, the district court found that the questioning was professional and that Diede’s will was not overborne. These findings are not clearly erroneous. Consequently, I would affirm the decision of the court of appeals. . The majority concludes that the fifth and sixth facts relied upon by the district court were not in existence at the time of the seizure, and therefore cannot be used to justify the initial seizure. I agree. . I acknowledge that this fact was not mentioned in the district court’s order. Our case law provides that undisputed facts may be considered by a reviewing court because reasonable suspicion is an objective test, and therefore it may be included in the totality of the circumstances analyzed here. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992) (stating that when the facts are not in dispute, "the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed”). . Both, parties claim different standards of review apply to a district court’s findings of consent. Compare State v. Smallwood, 594 N.W.2d 144, 155 (Minn.1999) (“A suspect’s voluntary consent to a search is a question subject to careful appellate review.’ State v. George, 557 N.W.2d 575, 58 [0] (Minn. 1997).”), with State v. Hummel, 483 N.W.2d 68, 73 (Minn.1992) (”[T]he trial court’s determination of consent will not be overturned unless it is clearly erroneous.”). There is no indication that, in practice, “careful appellate review” is any different from review under the clearly erroneous standard. Both require us to carefully review the record and determine whether the district court clearly erred in its factual finding of voluntary consent. Thus, for consistency with our general standard of review for factual findings, I agree with the majority that the appropriate standard of review for a district court's finding of *854 voluntary consent is the clearly erroneous standard. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8245527. Public record. Not legal advice.