Pine County District Court File No. K2-01-953
Considered and decided by Randall, Presiding Judge, Hudson, Judge, and
1. A defendant proceeding under Lothenbach must personally waive a jury trial in writing or orally upon the record in open court.
2. Consent to search is voluntary if a reasonable person would have felt free to decline the officer's requests or otherwise terminate the encounter.
3. The scope of a search is limited by the terms of its authorization. A search that exceeds the authorized consent is unreasonable and violates the fourth amendment.
4. Ultimately, the district court is in the best position to determine the credibility of the witnesses.
The opinion of the court was delivered by: Randall, Judge
Affirmed in part, reversed in part, and remanded
On appeal from a conviction for first-degree controlled substance offense (possession of methamphetamine), appellant argues (1) that police, who appeared at appellant's residence to check on his welfare, did not obtain voluntary consent to search the house; (2) that police, who suspected appellant of using methamphetamine, misrepresented their purpose when they told him they were looking for a shotgun out of concern that he was suicidal; and (3) that police exceeded the scope of appellant's consent when they lifted a pillow knowing it could not conceal a shotgun. Finally, appellant argues that because there was no inquiry on the record of his understanding that he was waiving his right to a jury trial, appellant is entitled to a new trial. Because appellant did not waive his right to a jury trial, we reverse and remand for a new trial. In the interests of judicial economy, we address the validity of the search. Because we find no error with respect to the search, we affirm the district court on that issue.
On September 4, 2001, Pine County Sheriff's Deputy Tom Pitzen received a call from dispatch concerning a suicide threat at appellant Greg Bunce's residence. The information regarding the threat came from Steve Smith, a deacon at the Pine City Assembly of God Church. Pitzen contacted Smith, who stated that appellant had threatened to kill himself with a shotgun. Smith also told Pitzen that appellant rented a trailer from the Assembly of God Church, and that deacons at the Assembly of God suspected appellant of using and possibly selling methamphetamine from the trailer.
Following the conversation with Smith, Pitzen went to appellant's house to investigate the situation. Because of the possible threat of a firearm, Pitzen requested backup, and Pine County Deputies Bill Juneau and Lt. Brett Grinde accompanied him to appellant's residence. The officers knocked on appellant's door, and eventually appellant answered. Pitzen questioned appellant about the suicide threats for approximately 10 or 15 minutes, and appellant assured the deputies that he was feeling fine and did not even own a shotgun. Despite his assurance, Pitzen asked appellant if they could look in the trailer in order to corroborate his assertion. Pitzen told appellant that he did not have to let them look, but if they were granted permission, the officers would only search areas where a shotgun would fit. Appellant reluctantly agreed and proceeded to show the officers the trailer.
After walking through a few rooms with appellant, the officers reached the bedroom. Pitzen asked if he could check under the bed, and appellant said yes. As he started to bend down to look under the bed, Pitzen noticed an empty baggie. Pitzen questioned appellant about it; appellant failed to give an explanation. Pitzen resumed bending down to look under the bed, and in the process, he saw another baggie on a shelf in the headboard of the bed, partially obscured by a pillow. According to Pitzen, the baggie contained a ...