This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0930
State of Minnesota, Respondent,
vs.
Joshua Brandon Cochran, Appellant.
Filed May 2, 2016 Reversed Halbrooks, Judge
Dakota County District Court File No. 19HA-CR-14-2191
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges his convictions of first-degree controlled-substance sale,
first-degree controlled-substance possession, and fifth-degree controlled-substance
possession, arguing that the district court erred by refusing to suppress the drugs found
inside a vehicle as a result of an improper inventory search. He also asserts, in the
alternative, that the two possession counts must be vacated because they are included
offenses of the first-degree controlled-substance-sale conviction. Because we conclude
that the vehicle impoundment and resulting inventory search were unlawful, we reverse.
FACTS
On June 21, 2014, officers responded to what dispatch described as an accident in
Eagan involving a motor vehicle and a pedestrian. The first officer to respond, Officer
Letourneau, noticed a male, later identified as T.K., lying in a grassy area adjoining the
road surrounded by a small group of people. After checking on T.K., Officer Letourneau
pulled up behind the vehicle that had been involved in the incident. He identified the
driver as appellant Joshua Brandon Cochran and the person in the front passenger seat as
T.M. Cochran was bleeding from his nose.
According to Cochran, he borrowed the vehicle from his partner in North Dakota
so that he could come to the Twin Cities to find his own car that had been taken by a
former roommate. Cochran picked up the two passengers after meeting them online
because he thought that one of them knew where his car was. At some point, an
argument erupted between T.K. and Cochran over methamphetamine. T.K., who was in
2 the backseat, began punching Cochran in the head and face while Cochran was driving.
Cochran stopped the vehicle and got out to escape being punched in the head. T.K.
followed him. When Cochran got back into the vehicle, T.K. jumped on the hood and
began punching and pounding on the windshield. The incident report confirms that
Cochran sustained injuries to his head, and photographs reflect what appear to be
repeated punches to the upper corner of the driver’s side windshield. T.K. testified that
he did not recall how he sustained his injuries, but Cochran stated that when T.K. was on
top of the hood, punching the windshield, Cochran got scared, shifted the vehicle into
drive, and accidentally hit T.K. after T.K. fell off the vehicle.
All three men were treated for injuries at the scene and were ultimately transported
to the hospital. No arrests were made. Before being taken to the hospital, Cochran
requested that his cell phone be retrieved from the vehicle. Cochran testified that Officer
Letourneau found the phone but did not return it to him.
Because Officer Letourneau decided to have the vehicle towed, he first performed
an inventory search. While doing so, he found two small baggies containing what was
later confirmed to be methamphetamine in a sunglasses case inside the center console of
the vehicle. He also located a small personal safe in a bag on the passenger-side floor.
Based on these discoveries, Officer Letourneau decided to have the vehicle towed
directly to the police department instead of the impound lot. The following day, officers
obtained a search warrant to open the safe. Inside, they found 50.6 grams of
methamphetamine, numerous empty baggies, and a scale.
3 Dakota County charged Cochran with one count of first-degree controlled-
substance sale and one count of first-degree controlled-substance possession. Cochran
challenged the legality of the inventory search at a contested omnibus hearing and moved
to suppress the drugs found as a result of the search. The district court denied his motion.
On the first day of trial, the state moved to amend the complaint to add a third count of
fifth-degree controlled-substance possession. The jury found Cochran guilty on all three
counts. The district court granted Cochran’s motion for a downward dispositional
departure and sentenced him to 75 months with execution stayed subject to five years of
probation. This appeal follows.
DECISION
Cochran argues that the district court erred by denying his motion to suppress the
drugs found in the vehicle as a result of the inventory search on the ground that the
vehicle impoundment was improper because he was not under arrest and was not given
an opportunity to make arrangements for the vehicle. “When reviewing pretrial orders on
motions to suppress evidence, we review the district court’s factual findings under a
clearly erroneous standard and the district court’s legal determinations de novo.” State v.
Jordan, 742 N.W.2d 149, 152 (Minn. 2007). “We may independently review facts that
are not in dispute, and ‘determine, as a matter of law, whether the evidence need be
suppressed.’” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quoting State v.
Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)).
The United States and Minnesota Constitutions prohibit unreasonable searches or
seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are
4 generally per se unreasonable, unless they fall within a recognized exception to the
warrant requirement, State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001), and evidence
obtained in violation of the Fourth Amendment is inadmissible, Mapp v. Ohio, 367 U.S.
643, 655, 81 S. Ct. 1684, 1691 (1961).
“[I]nventory searches are now a well-defined exception to the warrant requirement
. . . ,” Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987), and “are
considered reasonable because of their administrative and caretaking functions,” Gauster,
752 N.W.2d at 502. They “serve to protect an owner’s property while it is in the custody
of the police, to insure against claims of lost, stolen, or vandalized property, and to guard
the police from danger.” Id. (quotation omitted). But impoundment is proper only if the
state’s interest in impoundment outweighs a person’s Fourth Amendment right to be free
of unreasonable searches and seizures. Id. Therefore, the threshold question when
determining the legality of the search is to decide whether the impoundment was proper.
“[I]f the impoundment was unreasonable, then the resulting search was also
unreasonable.” State v. Rohde, 852 N.W.2d 260, 264 (Minn. 2014) (Rohde II).
The state argues that impoundment was necessary because (1) the vehicle was a
safety hazard, (2) it was not legal to drive or operate, (3) Cochran was incapacitated and
unavailable to make arrangements to have the vehicle towed, and (4) it was evidence in
an ongoing investigation. We will address each element in turn.
Safety Hazard
Cochran argues that the district court erred by finding that the vehicle could not
remain where it was because it was illegally parked and impeding traffic. An officer may
5 impound a vehicle if he believes that the public is put at risk “when there has been a
vehicle accident, to permit the uninterrupted flow of traffic, or when vehicles have
violated parking ordinances and thus jeopardize the public safety and the efficient
movement of traffic.” Id. at 265.
The district court relied on Officer Letourneau’s testimony and its own review of
the squad-car videos to find that the vehicle’s position on the shoulder of the road created
a safety hazard.1 Our review of the squad-car videos does not support this finding.
Officer Letourneau’s squad-car video shows that the rear tire on the driver’s side
extended over the white fog line on the shoulder by a matter of inches. But the road is
very wide, and even with the driver’s door fully open, as it was during the investigation,
the videos reflect that other vehicles were able to drive past the accident scene from both
directions with wide clearance.
Officer Letourneau testified that vehicles had to “serpentine through both lanes of
traffic to get through” the area. But the videos reflect that traffic flowed at normal speeds
even with three squad cars and an ambulance parked on the road. The videos also reflect
that if any passing traffic had to slow, it was more likely due to Officer Letourneau’s
squad car, which extended much further into the traffic lane than Cochran’s. Cochran’s
vehicle was pulled over to the side of a residential street and was not interfering with
traffic or blocking access to any property. Therefore, the district court’s finding that the
vehicle constituted a safety hazard or was impeding traffic in such a manner as to justify
impoundment is clearly erroneous.
1 Three separate squad-car videos are included in the record.
6 The district court also denied Cochran’s motion to suppress the drugs on the
ground that the vehicle was illegally parked.2 The record does not support a conclusion
that Cochran’s vehicle violated any parking restrictions. Officer Letourneau testified that
the area “is highly residential adjacent to commercial,” but he had no knowledge of
whether this area was a restricted parking zone. He noted, “I’m not sure if it’s posted
with signs or not” and “I don’t believe it’s a parking zone but I could not tell you right off
the top of my head.” No investigation was done to determine whether a vehicle left there
would have been in violation of parking restrictions. Because Officer Letourneau’s
testimony does not support the conclusion that the vehicle was illegally parked and a
review of the squad-car video shows no signage in the area restricting parking, we
conclude that the district court’s finding that Cochran’s vehicle was illegally parked is
clearly erroneous.
Illegal to Drive or Operate
Cochran argues that the district court erred by finding that impoundment was
necessary due to the damage to the windshield that obscured a driver’s ability to see. A
driver is prohibited from driving any vehicle with “a windshield cracked or discolored to
an extent to limit or obstruct proper vision.” Minn. Stat. § 169.71, subd. 1(a)(1) (2014).
The Eagan Police Department operating manual authorizes an officer to tow or impound
a vehicle if it “is found being driven on the street and is not in proper condition to be
2 The district court made no formal findings on the matter but provided only a recitation of Officer Letourneau’s testimony.
7 driven” or “is involved in a motor vehicle accident and is inoperable, causing a traffic
obstruction.”
The district court found that “[t]he vehicle was not safe or legal to drive away
because of the extensive damage to the windshield.” But even if the windshield damage
would have rendered the vehicle statutorily inoperable, the supreme court has clearly
stated that the threshold for impoundment is not whether the offense violated Minnesota
law. Even if an officer is otherwise statutorily authorized to impound the vehicle, a
“focus on whether the impoundment was authorized by Minnesota law is misplaced,
because the real question in this case is whether the impoundment was reasonable under
the Fourth Amendment.” Rohde II, 852 N.W.2d at 264. This is true because “a state
statute [or ordinance] might authorize an unreasonable search.” Id. Therefore, simply
because the Eagan Police Department manual authorizes impoundment under such
circumstances does not mean that it forms the proper foundational inquiry.3
In balancing the state’s interest in impounding for reasons of public safety against
Cochran’s Fourth Amendment rights, we conclude that the district court erred by
determining that the impoundment was necessary to prevent the vehicle from being
driven from the scene in the absence of any evidence indicating that this was Cochran’s
plan.
3 We note that the portion of the Eagan Police Department manual in the record relies on statutory authority that was repealed at the time Dakota County charged Cochran. Because Cochran does not raise the issue of whether the Eagan Police Department manual constituted proper standardized criteria with which to impound a vehicle, we decline to address it here. See Gauster, 752 N.W.2d at 502 (holding that “an inventory search conducted pursuant to a standard police procedure prior to lawfully impounding an automobile [is] not unconstitutional under the Fourth Amendment” (quotation omitted)).
8 Arrest, Absence, or Incapacitation of Driver
The state argues that impoundment was necessary because there was no one to
care for or make arrangements for the car. “The police will generally be able to justify an
inventory when it becomes essential for them to take custody of and responsibility for a
vehicle due to the incapacity or absence of the owner, driver, or any responsible
passenger.” City of St. Paul v. Myles, 298 Minn. 298, 304, 218 N.W.2d 697, 701 (1974).
The district court concluded that impoundment of Cochran’s vehicle was
necessary because “the owner was not present in Minnesota and there was no testimony
that [Cochran] requested that the police notify the registered owner,” noting that “[p]olice
are not required to give a driver the opportunity to make arrangements, but may allow the
driver to make reasonable alternative arrangements when the driver is able to do so and
requests to do so.” The district court relied on language from this court’s decision in
State v. Rohde, 839 N.W.2d 758 (Minn. App. 2013) (Rohde I), for the proposition that
police may impound a vehicle unless the driver specifically requests that he be allowed to
arrange for a tow of his vehicle.
But the supreme court overturned this court’s decision in Rohde I, affirming the
holding in Gauster that “cases in which the driver of a vehicle is arrested are
fundamentally different from cases in which the driver remains free.” Rohde II, 852
N.W.2d at 266. It is true that when a driver has been taken into custody, “it may [be]
necessary to do something with the vehicle,” but when a driver has not been arrested or is
not incapacitated, “it is not necessary for the police to take [the] vehicle into custody in
9 the first place” in the interest of general caretaking. Id. (alterations in original)
(quotations omitted).
Cochran contends that the state cannot rely on the general caretaking interest to
justify the impoundment because he was neither incapacitated nor arrested. We agree.
Cochran was not under arrest, nor was there any indication at that time that he would be
arrested in connection with the accident. While it is true that Cochran never affirmatively
asked Officer Letourneau if someone could come for the vehicle, Cochran testified that
he asked the officer to retrieve his cell phone from the vehicle with the intent to call to
arrange a tow: “[T]he reason why I asked for my phone was to be able to call the owner
of the vehicle to have him come get the car.” Officer Letourneau confirmed that Cochran
asked him to retrieve his phone, but he disputed Cochran’s statement that he never
received it.
Nothing in the record other than Officer Letourneau’s testimony after Cochran
was charged indicates that Officer Letourneau honored Cochran’s request and gave him
his phone. A recorded exchange between Cochran and an officer during a follow-up
interview taken at the hospital on the day of the accident confirms that Cochran was not
given his phone. The incident report completed the day after the incident does not reflect
that Cochran was given his phone. The record supports a conclusion that Cochran was
attempting to make arrangements to have the vehicle towed but was not able to follow
through with his intention due to the officer’s intervening search of the vehicle.
When Cochran requested that his phone be retrieved, Officer Letourneau
simultaneously began the inventory search. Police must have justification for the
10 impoundment at the time of impoundment. Gauster, 752 N.W.2d at 505. That did not
occur here. Cochran told Officer Letourneau that his phone was in the “left-hand side
board in the side compartment on the door.” Officer Letourneau located and removed
Cochran’s phone and then opened the center console where he found a sunglasses case
that he subsequently opened. Thus, the inventory search, done simultaneously with the
request by Cochran to retrieve his phone, was unlawful in light of the fact that Cochran
was not under arrest and was attempting to retrieve his phone before going to the
hospital.
Officer Letourneau testified that impoundment was necessary because he had no
way to positively identify the owner of the vehicle. But “[t]he mere fact that the
automobile was not registered to defendant, in the absence of reason to believe that
defendant was wrongfully in possession of it, does not render impoundment reasonable
upon defendant’s unrelated arrest . . . , and despite defendant’s alternative arrangements
for disposition of the automobile.” State v. Goodrich, 256 N.W.2d 506, 511 (Minn.
1977). In this case, there was no effort made based on the VIN or license plate to identify
the owner. At the omnibus hearing, the following exchange between Officer Letourneau
and Cochran’s attorney occurred:
Q. First, you never asked Mr. Cochran if he wanted to arrange a tow for his own vehicle? A. No, I did not. Q. All right. You didn’t ask him if he wanted to call someone else to come watch after his vehicle? A. No. Q. And you didn’t ask him who the registered owner of the vehicle was? A. I do not recall if I did or not to be honest.
11 Q. But you never attempted to find any individual named [L.W.], correct? A. I didn’t have the ability at the time of the incident. Q. And wouldn’t a temporary registration and vin number give you information on who the actual owner of that vehicle was? A. Sometimes it has limited information, yes. Q. Uh, did you take a photograph of this temporary registration tab? A. I do not recall. Q. Okay. But it’s—It’s not in evidence here today. You don’t have it today with you, do you? A. No.
We find no authority for the proposition that an officer may use his discretion to
preemptively determine whether it is reasonable or unreasonable for the driver of a
vehicle to make arrangements for its removal from the scene. If this were the case, an
officer could regularly bypass an individual’s Fourth Amendment right to be free from
unreasonable searches or seizures. The district court’s conclusion that impoundment was
proper because the registered owner was out of state is undercut by the fact that Cochran,
as the driver of the car, was available and took affirmative steps to retrieve his phone in
order to make arrangements for the vehicle.
The police may also justify impoundment of a vehicle under a general caretaking
function if the driver is incapacitated.4 Gauster, 752 N.W.2d at 505. The Eagan Police
Department manual permits impoundment under the following circumstance: “A vehicle
constitutes an obstruction to traffic and the vehicle is unattended or the person in charge
of the vehicle is injured or incapacitated to such an extent as to be unable to provide for
4 We have found no published authority detailing a Gauster analysis when a driver challenges impoundment based strictly on incapacity.
12 its removal.” (Emphasis added.) An “incapacitated person” is defined as “[a] person
who is impaired by an intoxicant, by mental illness or deficiency, or by physical illness or
disability to the extent that personal decision-making is impossible.” Black’s Law
Dictionary 828 (9th ed. 2009) (emphasis added). There are no facts in the record to
suggest that Cochran was incapacitated “to such an extent as to be unable to provide for
[the vehicle’s] removal.”
Evidence in an Ongoing Investigation
Cochran argues that the district court erred by finding that the vehicle was
properly impounded to preserve evidence in an ongoing investigation.5 Vehicles may be
taken into police custody “in some circumstances to preserve evidence.” South Dakota v.
Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3097 (1976). But the question of whether
this was a reasonable inventory search depends on “whether, at the time of the
impoundment, [Letourneau] was authorized to impound [Cochran’s] vehicle.” Gauster,
752 N.W.2d at 505.
The district court relied on Officer Letourneau’s testimony that he “believed the
vehicle may be evidence in an ongoing investigation.” This means that the vehicle could
only have been impounded in conjunction with the accident that led to the injuries. Any
other criminal activity implicating Cochran was discovered as a result of the inventory
search and cannot, therefore, be used as the basis for impoundment.
5 Again, the district court recited Officer Letourneau’s testimony but made no formal finding on the matter.
13 During the omnibus hearing after the discovery of the drugs, Officer Letourneau
testified:
At that point where it was parked at an angle in the roadway, being a traffic hazard, the damage to the wind shield, making it undriveable and we had no way to determine who—positively determine who the owner was, and having the vehicle possibly be evidence of an assault with a vehicle or criminal vehicular operation, it was determined the vehicle would be towed to make sure that if it was evidence while officers were at the hospital, making interviews, furthering the investigation that the vehicle could be secured.
(Emphasis added.) But the incident report does not state that Officer Letourneau was
impounding the vehicle to preserve evidence of the accident or that Cochran was under
investigation for criminal vehicular operation. In fact, the report states only that
[k]nowing that [T.K.] was going to the hospital for his injuries, [T.M.] was going to the hospital for evaluation because his use of narcotics and Cochran was going to the hospital for evaluation of his injuries the vehicle needed to be towed that he was driving. I began to do an inventory search of the vehicle and to attempt to locate Cochran’s phone.
Aside from the testimony at the omnibus hearing, there is no indication that
Officer Letourneau conducted an inventory search to preserve evidence of the accident.
The state maintains that “the crime for which the vehicle was suspected of being evidence
was not drug related. Rather . . . it was believed the car was evidence in the assault of the
individual that was on the side of the road.” But at no point was Cochran treated as if he
might be charged with a crime in connection with the accident. In fact, he never was
charged with any crime related to the accident. He was at all times treated as the victim
in the matter. The record does not support the conclusion that, at the time of
14 impoundment, the state had an overriding interest in preserving the vehicle as evidence of
a crime that Cochran might be charged with.
Because we conclude that the impoundment was not justified or necessary, the
inventory search violated Cochran’s Fourth Amendment right against unreasonable
searches or seizures. The suppression of the methamphetamine requires reversal of
appellant’s convictions, which were based on that evidence. See generally State v.
Harris, 533 N.W.2d 35, 36 n.1 (Minn. 1995) (noting retrial barred following reversal for
insufficient evidence). Because we reverse the convictions, we do not reach the issue of
whether Cochran’s possession convictions must be vacated as included offenses of the
first-degree controlled-substance-sale conviction.
Reversed.