State v. Hoven , 269 N.W.2d 849 ( 1978 )

SHERAN, Chief Justice.

Defendant appeals from a conviction in a court trial¹ for possession of controlled substances in violation of Minn.St. 152.01, 152.-02, 152.09, and 152.15. The conviction was based on evidence discovered in a search of defendant’s vehicle which had been impounded after it was stopped and he was arrested on two outstanding traffic arrest warrants. Because we believe that these arrest warrants were used pretextually to permit the police to search defendant’s vehicle in which they expected to find illegal drugs, the evidence seized as a result of this illegal search must be suppressed and the conviction reversed.

On October 24, 1974, the St. Cloud police received information from an informant who was considered reliable that the defendant was in St. Cloud, that he was driving a pickup truck with Iowa license plates, and that he was preparing to leave for Iowa with drugs in his possession. The police made no effort to obtain a search warrant based on this information. Instead, they intended to arrest him on warrants stemming from the defendant’s failure to appear in response to minor traffic violations.

After receiving this information a police officer who knew the defendant personally began to patrol the area of St. Cloud which the defendant was known to frequent. At about 1:45 p. m., he observed a Ford pickup truck with Iowa license plates parked on a public street. He immediately placed the vehicle under surveillance and ran a license check on it. An Iowa license plate check uncovered that the vehicle was registered to a salvage company. Since the officer knew that defendant was associated with a salvage company, he placed the vehicle under surveillance. At no time, however, did he attempt to get a search warrant to permit him to search the truck he believed to belong to defendant.

Approximately two hours later defendant emerged from a nearby residence, got into the truck, and drove away. The officer began to follow the truck and he observed that the driver was defendant. After following the truck for a short distance during which time no traffic violations occurred, he signaled it to a stop.

Defendant left the truck and walked toward the police vehicle. The officer informed him that he was under arrest for the two traffic offenses, handcuffed him, and gave him a Miranda warning. A search of his clothing revealed a hypodermic syringe in his shirt pocket. The arresting officer then requested and was given consent by defendant to look in the truck. He examined the cab and the open box area of the pickup. When the officer began to open a suitcase he had found, the defendant withdrew his consent, and the officer ceased his search. At this time, a tow truck arrived to haul the truck to the local im-poundment facility, and the defendant was taken to police headquarters and placed in a jail cell.

Two St. Cloud police officers were at the impoundment lot when the truck arrived. One of them testified that, while standing on the left side of the truck, he observed an open brown paper bag in plain sight in which he could see a plastic bag that appeared to contain a grassy substance. The officers seized the bag and found it to contain marijuana. After displaying the contents to the defendant at the jail, he was rearrested for illegal possession of marijuana and given another Miranda warning.

The next morning the same officer advised defendant that he intended to obtain a search warrant for the truck. Defendant told the officer that a search warrant would be unnecessary, signed a consent-to-search form, and disclosed the location in the vehicle of additional marijuana and several small packets of heroin. Defendant testified at the Rasmussen hearing that he did this because he felt the police would find the controlled substance in the truck once they had obtained a search warrant, and he did not know what else to do.

The evidence obtained from this “consent” search and the marijuana alleged to have been in plain sight were received in evidence over defendant’s objection. The trial court found defendant guilty on two charges, but execution of the concurrent sentences was stayed, and he was placed on probation.

1. The state concedes that the traffic warrants upon which Hoven’s initial arrest was predicated were fatally deficient in their lack of a statement of probable cause. The arrest was therefore illegal. Even if the arrest warrants had been technically perfect, however, the pretextual nature of the arrest made the subsequent search of. defendant’s vehicle constitutionally impermissible.

Pretext arrests by the police cannot be used to justify and legitimate otherwise illegal searches and seizures. In the leading case of Amador-Gonzalez v. United States, 391 F.2d 308 (5 Cir. 1968), the defendant was arrested for a minor traffic offense because he was suspected of concealing narcotics on his person or in his automobile. Although the arrest itself was legitimate, the heroin seized from a cavity in the front seat of the automobile was ordered suppressed on the ground that the arrest was a mere pretext to allow the officer to conduct an unreasonable search. The court reasoned as follows (391 F.2d 313):

“The lawfulness of an arrest does not always legitimate a search. General or exploratory searches are condemned even when they are incident to a lawful arrest. The arrest must not be a mere pretext for an otherwise illegitimate search. The search must have some relation to the nature and purpose of the arrest.

“Gonzalez was arrested for a minor traffic offense. It is not clear at just what time the traffic arrest turned into a narcotics arrest, but it could not have been until after the search. Until that time there was no probable cause to believe that the vehicle was transporting narcotics and no probable cause to make an arrest for the possession of drugs.” (Italics supplied.)

The reasoning of Amador-Gonzalez was explicitly accepted by this court in State v. Curtis, 290 Minn. 429, 434, 190 N.W.2d 631, 634 (1971). There we overturned defendant’s conviction for possession of marijuana which was discovered following his arrest for a minor traffic violation. Justice Otis noted that “[cjourts uniformly have forbidden the use of a minor traffic offense as a pretext for searches directed at unrelated offenses.” 290 Minn. 436, 190 N.W.2d 635. A similar conclusion was reached in State v. Gannaway, 291 Minn. 391, 392, 191 N.W.2d 555, 556 (.1971) (“Ordinarily police officers may not, without a search warrant, make an exploratory search of a person arrested for a minor traffic offense.”)²

In a recent case with comparable facts, an appellate court of Illinois held that a warrantless search of the trunk of an automobile following its stop by police officers because the license plate light was not illuminated and was obscured by a trailer hitch was not a valid search incident to an arrest. People v. Blitz, 38 Ill.App.3d 419, 347 N.E.2d 764 (1976). Accord, People v. Edwards, 73 Mich.App. 579, 252 N.W.2d 522, 524 (1977). (“Had a warrantless search been conducted incident to the arrest for the traffic violation that resulted in discovery of contraband not in plain view, the trial judge would undoubtedly have been correct in granting the motion to suppress.”) (dictum).

In United States v. Carriger, 541 F.2d 545, 553 (6 Cir. 1976), the court specifically condemned “the tactic of circumventing the Fourth Amendment requirements by manipulating the time of a suspect’s arrest to coincide with his presence in a place which government agents wish to search.” That is what happened in this case. According to the testimony of the police, a “reliable informant” notified them that defendant had controlled substances in his truck. Rather than applying for a search warrant to search the vehicle the officer had had under surveillance for two hours, however, he utilized arrest warrants based on defendant’s failure to respond to minor traffic violations. Because he waited until defendant entered the truck and drove off before arresting him, the inference is inescapable that the arrest was made and timed primarily to facilitate the warrantless search.

The Supreme Court has held that to be reasonable a search must either be conducted pursuant to a valid search warrant or fit into one of the exceptions to the warrant requirement that it has defined. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A pretext arrest to permit an otherwise unauthorized search is not one of these exceptions.

Since a pretext arrest is per se illegal, evidence obtained as a result of that arrest is inadmissible. Therefore, the open paper bag containing marijuana discovered by the officers in defendant’s truck should have been suppressed as the product of an illegal arrest.

2. The state attempts to avoid this conclusion by invoking the “plain-view” doctrine under which incriminating evidence may be seized without a search warrant if discovered in plain sight by a police officer. Because the marijuana was found in plain view in an open paper bag, the state contends that it was properly seized and independently admissible.

The admissibility of evidence seized in plain view, however, rests on the validity of the initial search. As the Supreme Court explained in Coolidge v. New Hampshire, 403 U.S. 443, 446, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1970):

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure.” (Italics supplied.)

See, State v. Shevchuk, 291 Minn. 365, 366, 191 N.W.2d 557, 559 (1971) (“ * * * ‘[OJbjects falling in the plain view of an officer who has a right to be in the position to have the view are subject to seizure and may be introduced in evidence.’ ”) Thus, if a police officer is already engaged in a “reasonable” Fourth Amendment intrusion, allowing him to seize evidence within plain view involves no additional invasion of privacy which would make the seizure unreasonable.

Since defendant’s arrest in this case was illegal, the arresting officer had no right to be in a position to view the contents of his truck. See, e. g., People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891 (1976); People v. Roberts, 1 Ill.App.3d 571, 274 N.E.2d 688 (1971). Likewise, because of the illegality of the subsequent custody of both defendant and the truck, the police officers at the impoundment lot had no greater constitutional right to view the vehicle than did the officer at the scene of the arrest. The lack of “prior justification” for the officers’ entry into the truck makes the seizure of the brown bag unreasonable and therefore illegal under the Fourth Amendment. Defendant’s rearrest at the police station for possession of marijuana must also fall because it was based on illegally seized evidence.

3. Even if the initial arrest and the seizure of the brown bag were illegal, the state argues that the final search of defendant’s truck was made pursuant to his voluntary consent, and the contraband uncovered during this search was properly admissible. While the state’s position is not without theoretical underpinnings, the facts of this case do not support its position.

The exclusionary rule normally makes inadmissible against the arrestee evidence that is the product of an illegal arrest. When events occurring between the time of an unlawful arrest and the ultimate discovery of incriminating evidence, as a practical matter, nullify the effect of the illegality, however, the United States Supreme Court recognizes an exception to this rule. Thus, for example, a truly voluntary confession which is the product of free will is considered untainted by an illegal arrest and therefore admissible. If, however, the arrest plays a significant role in inducing the confession, it will be suppressed just like any other product of an illegal arrest. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Identical reasoning applies to a consent to search which is given following an illegal arrest. When a consent is manifestly voluntary and is not a product of an illegal arrest, it will not be deemed tainted by the arrest and will fall outside the bounds of the exclusionary rule. See, United States v. Bazinet, 462 F.2d 982 (8 Cir. 1972); Phelper v. Decker, 401 F.2d 232 (5 Cir. 1968). As the Supreme Court stated in Brown v. Illinois, 422 U.S. 600, 95 S.Ct. 2259, 45 L.Ed.2d 424:

“* * * [T]he * * * apt question * * * is ‘whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455. (Italics supplied.)

See, also, State v. Weekes, Minn., 268 N.W.2d 705, 708 (filed April 7, 1978).

In the present case we think it plain that defendant’s consent to the vehicle search was “come at by exploitation” of his illegal arrest. He consented to the vehicle search only after he had been confronted with the bag of marijuana found in his truck. He stated that since the police had the marijuana, he felt that they would have little trouble procuring a search for the entire truck and locating the remaining drugs. The crucial point is that the marijuana — illegally seized incident to an illegal arrest — was absolutely instrumental in provoking his consent.³ Because defendant’s consent was invalid as the product of an illegal arrest and an illegal search, we must therefore set aside the conviction.

Reversed.

1 . Defendant waived his right to a jury trial.

2 . Although it might be argued that Curtis and Gannaway are no longer good law in light of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the search approved in Robinson was only of the defendant’s person, pursuant to general police procedures for effectuating a full-custody arrest, and there was suggestion that Robinson’s arrest for driving with a revoked license might have been merely a pretext to allow the officers to search for suspected heroin. In any event, Robinson is not dispositive of this case, because it deals with the search of a person pursuant to a lawful arrest, and not with the search and im-poundment and later search of a vehicle incident to an arrest, conceded by the parties to have been unlawful, whose only purpose was to permit the officers to search for drugs they expected the defendant to have in his truck.

3 . Any other holding would sanction the use by police of the product of an illegal arrest to trigger a “voluntary” consent. We decline to undermine the exclusionary rule in this fashion.