This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A15
- 1026

State of Minnesota, Respondent,

vs. Nicole Renaye Kroells, Appellant.

Filed March 7, 2016 Affirmed Halbrooks , Judge Dissenting, Randall, Judge 

McLeod County District Court File No. 43

- CR

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- 1301 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County Attorney, Glencoe, Minnesota (f or respondent) Christian R. Peterson, Anoka, Minnesota (for appellant) Considered and decided by Halbrooks , Presiding Judge; Chutich , Judge; and Randall , Judge

.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N HALBROOKS , Judge Appellant challenges her conviction of second

- degree controlled

- substance crime, arguing th at the district court erred by denying her motion to suppress evidence found during an inventory search of her vehicle. We affirm. FACTS On August 25, 2014, McLeod County Deputy Sherif f Scott Wawrzyniak stopped appellant Nicole Renaye Kroells’s vehicle after observing that the tint of the rear window appeared to be darker than permitted under Minnesota law. While speaking with Kroells, Deputy Wawrzyniak observed that she was extremely nervous and fidgety. Upon learning Kroells’s ident ity, Deputy Wawrzyniak recalled that Kroells had an active arrest warrant. Kroells also admitted that she did not have insurance on the vehicle. Deputy Wawrzyniak arrested Kroells based on the active warrant. Based on Minn. Stat. § 168B.035, subd. 3(b) (3) (2014) and the McLeod County Sheriff’s Office Towing and Release Policy , Deputy Wawrzyniak requested a tow for the uninsured vehicle and then conducted an inventory search of Kroells’s vehicle . During the search , he discovered $6,800 in a sun glasses c ase. He also discovered a cylindrical Cheetos can. The Cheetos can was only partially full , and Deputy Wawrzyniak observed what he believed to be a hidden compartment approximately one

- third of the way down the can. He waited for another officer to arri ve and then they took the can apart. The officers discovered another $3,000 in cash and 19.1 grams of methamphetamine.3

Respondent State of Minnesota charged Kroells with second

- degree controlled

substance crime. Kroells moved to suppress the evidenc e obtained as a result of the inventory search, arguing that Deputy Wawrzyniak did not have reasonable, articulable suspicion to stop her vehicle , that he unlawfully expanded the scope of the traffic stop, and that he unlawfully searched the vehicle and it s contents. The district court denied the motion, concluding that the initial stop was valid and that the inventory search was proper because the deputy was going to have the vehicle towed because it was uninsured and was blocking a driveway.
Pursuant t o Minn. R. Crim. P. 26.01, subd. 2 , Kroells waived her right to trial and stipulated to the state’s case in order to obtain appellate review of the district court’s pretrial ruling. The district court found Kroells guilty of second

- degree controlled

subst ance crime and sentenced her to 45 months in prison. This appeal follows. D E C I S I O N

“ When reviewing pretrial orders on mo tions 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 N.W.2d 90, 98 (Minn. 1999). Both the Fourth Amendment to the U.S. Constitution and

a rticle I, s ection 10, of the Minnesota Constitution prohibit unreasonable searches and seizur es. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement. State v. Flowers , 734 N.W.2d 239, 248 (Minn. 2007).4

An invent ory search is a well

- defined exception to the warrant requirement . State
v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008). An inventory search is considered reasonable because it “serve [s] 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.” Colorado v. B ertine , 479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987). An inven tory search is reasonable under the Fourth Amendment if the police (1) follow standard procedures in conducting the search and (2) conduct the search, at least in part, for the purpose of obtaining an inventory. State v. H olmes , 569 N.W.2d 181, 188 (Minn. 1997). An inventory search must not be used as an excuse to engage in “general rummaging in order to discover incriminating evidence.” Id. at 187 (quotation omitted)

. On appeal, Kroells concedes that “the deputy had the authority to retrieve the Cheetos container from within her car and even open it if possible.” But she argues that the district court erred by denying the motion to suppress because the “destruction of a closed container to reveal its contents goes beyond the scope of an inventory search.” The state responds that this issue is not properly before this court because it was not raised below.
To the district court, Kroells argued that the evidence should be suppressed bec ause the deputy did not have a reasonable, articulable suspicion to stop her. She further argued that the expansion of the stop was unconstitutional and generally alleged that the deputy should not have opened a closed container. But she did not argue, a s she does now, that the deputy’s method of opening the can exceeded the scope of an5

inventory search. A party may not obtain appellate review “by raising the same general issue litigated below but under a different theory.” Thiele v. Stich , 425 N.W.2d 5 80, 582 (Minn. 1988). The district court properly determined that the evidence was discovered during a constitutionally permissible inventory search. The inventory search was conducted pursuant to the McLeod County Sheriff’s Office Vehicle Towing and Rel ease Policy, which allows officers to search containers “even if they are closed and/or locked.” In
Bertine , the Supreme Court concluded that “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Ame ndment. 479 U .S. at 374, 107 S. Ct. at 742. Moreover, Deputy Wawrzyniak testified that the purpose of the inventory

- search policy is to “take the liability off of the sheriff’s office for anything that’s in the vehicle.” The Supreme Court has also sta ted that one of the purposes of an inventory search is to insure the police against claims of lost or stolen property. Id. at 372, 107 S. Ct. at 741. Prior to opening the can, Deputy Wawrzyniak discovered $6,800 in a sun glasses case. Given that he had just discovered a large sum of money inside one unlikely container, it was reasonable to think there might be valuable objects or money inside the hidden compartment of the Cheetos can. Indeed, there was $3,000 inside the Cheetos can. By inventorying the contents of the containers, Deputy Wawrzyniak protected the department against claims of lost or stolen property and money. We therefore conclude6

that the district court did not err by denying Kroells’s motion to suppress the evidence discovered during a valid inventory search. 1
Affirmed.

1 Because we conclude t hat the evidence was discovered during a valid inventory search, we do not reach the state’s arguments that the search can be justified as a search incident to arrest or under the automobile exception to the warrant requirement.D

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RANDALL , Judge (dissenting)
I wo uld reverse. Th e deputy’ s “ hunch ” that the rear window was tinted, without more, is not a basis for a traffic stop. “An investigatory stop of a vehicle is justified if police have a particularized and objective basi s for suspecting the particular person stopped of criminal activity.” State v. Yang , 774 N.W.2d 539, 551 (Minn. 2009) (emphasis added) (quotation s omitted). The officer ’s suspicion “ must be something more than a mere hunch

. ” State v. George , 557 N.W.2d 575, 578 (Minn. 1997). A minor visible violation of a traffic law can provide an objective basis for a stop. Id. Here, the stop was based solely on the deputy ’s “ opinion ” that appellant’s rear window was unlawfully tinted. A ppellant challenged the stop of his vehicle on this basis at the omnibus hearing . The district c ourt upheld the stop

. A ppellant d id not directly raise the stop issue in this appeal, 2 but the state retains t he burden to prove that a warrantless search is justified by an exception to the warrant requirement, State v. Flowers , 734 N.W.2d 239, 248 (Minn. 2007), and this court has a duty to review issues despite the oversight of counsel. State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990). To ignore the invalidity of this basis for the stop would give police a “blank check” to stop any vehicle for any reason. See State v. Cvar , 293 Minn. 439, 442, 196 N.W.2d 624, 626 ( 1972) (noting it would give authorities a “blank check” to engage in exploratory

se arches to permit an arrest and search on the basis of an anonymous tip without corroboration).

2 Appellant is represented by different counsel on appeal.D

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T here are no published opinions affirming a traffic stop solely on the basis that a law enforcement officer “thought” a vehicle had illegally

- tinted windows. O ur unpublis hed opinions provide my analysis. Unlike this case, our unpublished opinions show other circumstances supporting the stop , such as specific testimony regarding the officer’s experience with tinted windows, or confirmatory testing wit h a tint

- meter. See State v. Homstad , No. A09

- 373, 2010 WL 346372, at *1

- 4 (M inn. App. Feb. 2, 2010) (affirming traffic stop under totality of circumstances where vehicle was diagonally parked, with engine running at 1:24 a.m. in a commercial area where business were closed, officer knew a burglary had occurred at one of the busi nesses, and officer could not see inside the vehicle because of the tinted windows ); see also State v. Dancy , No. C2

- 01

- 110 2, 2002 WL 857660, at *1

- 2 (Minn. App. May 7, 2002) (affirming traffic stop that included officer’s suspicion that vehicle, and people associated with it, were involved in illegal activity, and noting defendant conceded stop wa s valid on grounds vehicle ma de an illegal turn and its windows were illegally tinted) ; State v. Schaefer , No. C6

- 98

- 779, 1999 WL 44154, at *1

- 3 (Minn. App. Feb. 2, 1999) ( affirming traffic stop when officer confirmed illegal ity with tint

- meter , but noting vehicle also had loud muffler ) ; cf

. State v. Glover , No. A14

- 1550, 2015 WL 1130979, at *2

- 3 (Minn. App. Mar. 16, 2015) (reversing pretrial suppression order on grounds that officer’s experience in measuring “hundreds” of vehicle windows and confirmation with tint

- meter pr ovided valid basis for stop). Here, the record evidence does not include any of the above. There are no other circumstances s upporting reasonable suspicion . T here wa s no witness testimonyD

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regarding the deputy ’ s specific experience investigatin g window tints . T here was no
t esting confirming that the rear window was in fact illegall y t inted. T he statute prohibits driving a motor vehicle when a window is treated with a material that has “a light transmittance of less than 50 percent plus or minus three p er cent in the visible light range.” Minn. Stat. § 169.71 , subd. 4 (a) (3) (2014 ). T he deputy ’s “ opinion ” that the window was illegally tinted , without confirmation and without any additional suspicious circumstances , is not an objective basis for the stop. T he stop was based on a “ subjective hunch ” and nothing more. I w ould reverse on that basis. Even if the stop was valid, I would reverse on the basis that the impoundment of the vehicle was not reasonab le under the Fourth Amendment. The question o f whether an inventory search i s reasonable depends on whether the police had a righ t to take custody of the vehicle. State v. Rohde , 852 N.W.2d 260, 264 (Minn. 2014). Both the district court and the maj ority rely on statutory authority and the sheriff ’s department policy permitting towing when a vehicle i s uninsured and blocking a driveway. See Minn. Stat. § 168B.035, subd. 3(b) (3) (permitting a towing authority to tow a motor vehicle that is blocking a driveway, alley, or fire hydrant). But the supreme court in Rohde clarified that state law alone does n ot make an impoundment proper. 852 N.W.2d at 264. Appellant’ s counsel relied on this case in his arguments to the district court. But

no ne of the parties reference this case in their br iefs to this court. And in support of its argument that an uninsured vehicle provides a basis for impoundment, the state relies on this court’s opinion in State v. Rohde , 839 N.W.2d 758, 764 (Minn. App. 2013), “ whichD

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has been reversed !” I rely on the sup reme court’s decision in Rohde to conclude that the impoundment was unreasonable under the Fourth Amendment. For an impoundment to be reasonable, the state’s interest must outweigh the individual’s Fourth Amendment rights. Rohde , 852 N.W.2d at 264. The police have community caretaking functions , which permit removal of vehicles “ impeding traffic” or “threatening public safety.” Id. at 265 (quoting South Dakota v. Opperman , 428 U.S. 364, 368

- 69, 96 S. Ct. 3092, 3097 (1976)) . But there is nothing in this record to support impoundment for either of these concerns. The vehicle was not damaged or parked on a public street where it would interrupt the flow of t raffic, but was parked in another person’s private driveway

. Although the officer indicated th at the ve hicle was blocking the driveway, he also admitted that the resident could drive around the vehicle to exit the drivew ay. E ven though appellant was arrested on a warrant for driving after revocation and for no proof of insurance , the sheriff’s department’s own policy provides that a

“ [ t ] raffic

- related warrant arrest” is a situation “where consideration should be given to leaving a vehicle at the scene in lieu of towing.” Moreover, the fact that appellant was arrested does not mean that she was unable to make arrangements for s omeone to take care of the vehicle. See State v. Goodrich , 256 N.W.2d 506, 511 (Minn. 1977) (concluding that defendant who was arrested was still able to protect his “property from theft and the police from claims arising therefrom” by arranging for a family member to take his car). The record indic ates that appellant was anxious about her child , who was left in the care of appellant’s sister, suggesting that there were family members whoD

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could take resp onsibility for the vehicle. I mmediate impoundment was not necessary to protect the property. Under the se facts, the impoundment was un reasonable under the Fourth
A men dment

. Because the impoundment was unr easonable, the resulting inventory search

was unreasonable. I would also reverse on that basis. Finally, I would reverse because the deputy exceeded the lawful scope of an inventory search when he used a knife to rip open the Cheetos container. An inventory search must be conducted according to standard criteria , in good faith, and not for the purpose of investigating suspected criminal activity

. Colorado v. Bertine , 479 U.S. 367, 374

- 76, 107 S. Ct. 738, 742

- 43 (1987). Although the sheriff’s department policy permits inventorying the contents of closed or locke d containers, that policy does not include using a knife t o rip open a container. Appellant persuasively relies on cases from other jurisdictions that recognize that damaging property is inconsistent with the dual purpose of an inventory: to protect the owner’s property and to protect police f r om claims that the owner’s property has been lost or damaged. In Commonwealth v. Vanya V. , the Massachusetts Court of Appeals considered whether police policy permitting the opening of a bag during an inventory

se arch included using a knife to cut the stitching of the bag. 914 N.E.2d 339, 343 (Mass. App. Ct. 2009). The court concluded that “[p]ermitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory except ion” and “served no noninvestigatory purpose.” Id. (reversing adjudication of drug charges where contents of bag were not obtained as a result of a legitimate inventory search). Similarly,D

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in State v. Cabage , the Tennesse e Supreme Court concluded that all owing “ an officer to cut or otherwise damage a locked container in order to conduct an itemized inventory of its contents” is not consistent with “[t]he purpose of an inventory

. . . to protect the property of the owner and to protect officers from claims by the owner that the property was damaged.” 649 S.W.2d 589, 592 (Tenn. 1983) (reversing conviction of possession of marijuana with intent to sell where officers used bolt cutters to open locked trunk during inventory search). As in these cases, I concl ude that ripping open the Cheetos container was not a legitimate inventory search . It was a fishing search for criminal activity. It destroyed rather than preserved appellant’s property.
B oth the stop and the search violate d basic constitutional principles. I would

reverse.