                         This opinion will be unpublished and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
                                    A15-1026


                                  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-14-1301

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County
Attorney, Glencoe, Minnesota (for 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.
                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges her conviction of second-degree controlled-substance crime,

arguing that 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 Sheriff 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 identity, 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 sunglasses case. 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 arrive and then they took the can apart. The

officers discovered another $3,000 in cash and 19.1 grams of methamphetamine.




                                            2
       Respondent State of Minnesota charged Kroells with second-degree controlled-

substance crime. Kroells moved to suppress the evidence 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 its 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 to 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-

substance crime and sentenced her to 45 months in prison. This appeal follows.

                                     DECISION

       “When reviewing pretrial orders on motions 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

article I, section 10, of the Minnesota Constitution prohibit unreasonable searches and

seizures. 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).




                                            3
       An inventory 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. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741

(1987). An inventory 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. Holmes, 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

because 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, as she

does now, that the deputy’s method of opening the can exceeded the scope of an


                                             4
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 580, 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 Release 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 Amendment. 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 stated 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 sunglasses 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 conclude




                                               5
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 that 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.

                                               6
RANDALL, Judge (dissenting)

         I would reverse. The 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 basis for suspecting the particular person

stopped of criminal activity.”      State v. Yang, 774 N.W.2d 539, 551 (Minn. 2009)

(emphasis added) (quotations 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. Appellant challenged the stop of his vehicle on this basis at the

omnibus hearing. The district court upheld the stop. Appellant did not directly raise the

stop issue in this appeal,2 but the state retains the 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

searches 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-1
         There are no published opinions affirming a traffic stop solely on the basis that a

law enforcement officer “thought” a vehicle had illegally-tinted windows.               Our

unpublished 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 with a tint-meter. See

State v. Homstad, No. A09-373, 2010 WL 346372, at *1-4 (Minn. 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 businesses, and officer could

not see inside the vehicle because of the tinted windows); see also State v. Dancy, No.

C2-01-1102, 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 was valid on grounds vehicle made

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 illegality 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 provided valid basis for

stop).

         Here, the record evidence does not include any of the above. There are no other

circumstances supporting reasonable suspicion.         There was no witness testimony


                                             D-2
regarding the deputy’s specific experience investigating window tints. There was no

testing confirming that the rear window was in fact illegally tinted. The 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 percent in the visible light

range.” Minn. Stat. § 169.71, subd. 4(a)(3) (2014). The 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. The stop was based on a “subjective

hunch” and nothing more. I would reverse on that basis.

        Even if the stop was valid, I would reverse on the basis that the impoundment of

the vehicle was not reasonable under the Fourth Amendment. The question of whether

an inventory search is reasonable depends on whether the police had a right to take

custody of the vehicle. State v. Rohde, 852 N.W.2d 260, 264 (Minn. 2014). Both the

district court and the majority rely on statutory authority and the sheriff’s department

policy permitting towing when a vehicle is 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 not 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

none of the parties reference this case in their briefs 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), “which




                                            D-3
has been reversed!” I rely on the supreme 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 traffic, but was parked in another

person’s private driveway. Although the officer indicated that the vehicle was blocking

the driveway, he also admitted that the resident could drive around the vehicle to exit the

driveway. Even 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 someone 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 indicates that appellant was anxious about her child, who was

left in the care of appellant’s sister, suggesting that there were family members who




                                           D-4
could take responsibility for the vehicle. Immediate impoundment was not necessary to

protect the property.

       Under these facts, the impoundment was unreasonable under the Fourth

Amendment. Because the impoundment was unreasonable, 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 locked containers, that policy does not include

using a knife to 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 from 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

search 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 exception” 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-5
in State v. Cabage, the Tennessee Supreme Court concluded that allowing “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 conclude 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.

       Both the stop and the search violated basic constitutional principles. I would

reverse.




                                              D-6
