                            This opinion will be unpublished and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
                                       A14-1346

                                      State of Minnesota,
                                           Appellant,

                                              vs.

                                       Adam Alvarado,
                                         Respondent

                                    Filed April 13, 2015
                                  Reversed and remanded
                                       Worke, Judge

                               Kandiyohi County District Court
                                   File No. 34-CR-14-94

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

Shane D. Baker, Kandiyohi County Attorney, Stephen J. Wentzell, Assistant County
Attorney, Willmar, Minnesota (for appellant)

John D. Ellenbecker, St. Cloud, Minnesota (for respondent)

         Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                           UNPUBLISHED OPINION

WORKE, Judge

         In this pretrial appeal, the state argues that the district court erred by suppressing

methamphetamine found in a search of respondent’s vehicle seven days after it was
towed to a secure impound lot. Because the search was lawful under the automobile

exception to the warrant requirement, we reverse.

                                         FACTS

       On October 30, 2013, law enforcement conducted a traffic stop of a truck in

Willmar after an officer noticed suspicious activity. The officer ran a registration check

on the truck and discovered that its registered owner, A.E., had a revoked license. He

recalled that A.E. had recently been stopped while possessing drugs and guns. After

conducting the stop, the officer saw air fresheners “shoved into the vents on the [truck’s]

dash” and a baggie on the floor that “appeared to contain a white crystal type residue.”

       The driver, respondent Adam Alvarado, admitted that the residue was possibly

methamphetamine and that there was possibly half an ounce of marijuana in a suitcase.

Alvarado was arrested and three fentanyl patches, which Alvarado claimed were his

father’s prescription medication, were found in his pocket. Law enforcement searched

the truck and seized the baggie, which tested positive for methamphetamine residue, and

28.82 grams of marijuana. The truck was then towed to the city impound lot.

       Alvarado admitted that the marijuana was his. He was charged with fifth-degree

possession of marijuana, see Minn. Stat. § 152.025, subd. 2(a)(1) (2012), fifth-degree

possession of a controlled substance, see id., and misdemeanor possession of over 1.4

grams of marijuana in a motor vehicle, see Minn. Stat. § 152.027, subd. 3 (2012).

       One week later, the arresting officer was reviewing his report with another agent

and “thought there was more to [the truck].”        Law enforcement conducted a more

thorough search of the truck, which was still located in the locked-and-secure impound


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lot.   Officers found a baggie under the driver’s seat containing 17.49 grams of

methamphetamine.       There was a ledge underneath the driver’s seat where the

methamphetamine could have been stored, and it likely fell off the ledge when the front

of the vehicle was raised for towing.

       The officer re-interviewed Alvarado two months later. Alvarado claimed that he

had purchased the truck a month or two prior to the traffic stop, but eventually admitted

that the methamphetamine was his. He was charged with second-degree possession of a

controlled substance. See Minn. Stat. § 152.022, subd. 2(a)(1) (2012).

       Alvarado moved to suppress all the evidence stemming from the traffic stop. The

district court’s omnibus order suppressed only the methamphetamine found during the

second search on the grounds that there was no applicable exception to the warrant

requirement for the second search. The district court did not consider the automobile

exception, however.1

       This state pretrial appeal followed. The state argues only that the automobile

exception applied to the second search, and that therefore the methamphetamine should

not have been suppressed.




1
  The district court correctly concluded that the second search did not fall under the
inventory exception to the warrant requirement because there was no evidence it was
performed according to standard inventory procedures, and the investigating officer
testified that he performed the second search solely for investigative purposes. See State
v. Holmes, 569 N.W.2d 181, 187 (Minn. 1997) (requiring that inventory searches must be
performed in accordance with standard procedures and at least in part to obtain an
inventory).

                                            3
                                      DECISION

          When the state appeals a pretrial suppression order, it first “must clearly and

unequivocally show both that the [district] court’s order will have a critical impact on the

state’s ability to prosecute the defendant successfully and that the order constituted

error.”     State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotations omitted).

Dismissal of even one charge constitutes critical impact. State v. Poupard, 471 N.W.2d

686, 689 (Minn. App. 1991). The required critical impact is easily met here because the

methamphetamine was the sole evidence of the second-degree possession charge and its

suppression resulted in that charge’s dismissal.

          The state argues that under the automobile exception the methamphetamine should

not have been suppressed. We independently review facts to determine whether the

district court erred as a matter of law in suppressing evidence. State v. Harris, 590

N.W.2d. 90, 98 (Minn. 1999). We review the district court’s factual findings under a

clearly erroneous standard and its legal determinations de novo. State v. Gauster, 752

N.W.2d 496, 502 (Minn. 2008).

          Both the United States and Minnesota Constitutions protect against unreasonable

searches. U.S. Const. amend. IV; Minn. Const. art I, § 10. Warrantless searches are

presumptively unreasonable. Gauster, 752 N.W.2d at 502. But there are well-defined

exceptions to the warrant requirement. Id. The state bears the burden of showing that a

warrantless search fell under an exception. State v. Ture, 632 N.W.2d 621, 627 (Minn.

2001).




                                             4
      The automobile exception allows the warrantless search of a vehicle if there is

probable cause to believe the vehicle contains evidence of a crime. Carroll v. United

States, 267 U.S. 132, 149, 45 S. Ct. 280, 283-84 (1925); State v. Pederson-Maxwell, 619

N.W.2d 777, 780 (Minn. App. 2000). The reasoning behind the automobile exception is

twofold: automobiles are readily mobile, and people have a reduced expectation of

privacy in vehicles. California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066, 2069

(1985). We review de novo whether there was probable cause in a warrantless search. In

re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997). “The probable-cause standard is

an objective one that considers the totality of the circumstances.” State v. Olson, 634

N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). Probable

cause to search an automobile exists where “there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” State v. Wiley, 366 N.W.2d 265,

268 (Minn. 1985) (quotation omitted). “If a car is readily mobile and probable cause

exists to believe it contains contraband, the Fourth Amendment . . . permits police to

search the vehicle without more.” Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct.

2013, 2014 (1999) (quotation omitted). “[T]he ‘automobile exception’ has no separate

exigency requirement.” Id. at 466, 119 S. Ct. at 2014.

      “The scope of a warrantless search of an automobile . . . is defined by the object

of the search and the places in which there is probable cause to believe that it may be

found.”   United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172 (1982).

Probable cause to search for drugs “justifies a search of every part of the vehicle and its

contents.” State v. Bigelow, 451 N.W.2d 311, 312 (Minn. 1990).


                                            5
       When probable cause exists, the vehicle may be searched at the scene or at the

station house. Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 1981 (1970).

“[T]he justification to conduct . . . a warrantless search does not vanish once the car has

been immobilized.” Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 3080-81

(1982).

       The state did not clearly articulate to the district court that the automobile

exception applied here, thus the district court suppressed the methamphetamine without

considering the automobile exception. As a reviewing court, we must carefully review

the record on appeal to determine whether the automobile exception was properly

preserved. We conclude that the state sufficiently developed the factual record and

preserved the issue by arguing that the delay before the second search was irrelevant.

       We next conclude that probable cause existed for the second search based on the

totality of the circumstances, including the officer’s initial observations of the baggie

containing methamphetamine residue in plain sight, the marijuana found in the first

search, and Alvarado’s admissions. Although the second search was conducted seven

days after impound, because the truck was secured in a locked impound lot there are no

facts to suggest that probable cause diminished during the delay. See State v. Jannetta,

355 N.W.2d 189, 193-94 (Minn. App. 1984) (holding that probable cause to search

cannot be established by stale information and that one staleness factor to consider is

“whether the property sought is easily disposable or transferable”), review denied (Minn.

Jan. 14, 1985).




                                            6
       While the officers likely could have obtained a warrant for the second search,

“[t]he relevant test is not the reasonableness of the opportunity to procure a warrant, but

the reasonableness of the [search] under all the circumstances.” South Dakota v.

Opperman, 428 U.S. 364, 373, 96 S. Ct. 3092, 3099 (1976) (quotation omitted). A search

is reasonable if it is based on objective facts that would justify the issuance of a warrant,

even if a warrant is not obtained. Ross, 456 U.S. at 809, 102 S. Ct. at 2164-65. Although

Minnesota courts have not directly considered a warrantless search that occurs days after

impoundment without fresh probable cause, several other courts have concluded that

warrantless searches in similar cases were lawful. See, e.g., North Dakota v. Dudley, 779

N.W.2d 369, 370-72 (N.D. 2010) (holding that where there was probable cause for an

initial search, the second warrantless search of an impounded vehicle several days after

impoundment was lawful where the search was delayed because the officer was off work

for a couple days); United States v. Noster, 590 F.3d 624, 634 (9th Cir. 2009) (holding

that a second search, after the initial inventory search uncovered evidence of criminal

activity, was reasonable under the circumstances even though it occurred eight days after

the inventory search); United States v. Gastiaburo, 16 F.3d 582, 587 (4th Cir. 1994)

(“[T]he passage of time between the seizure and the search of [the] car is legally

irrelevant.”).

       Because there was probable cause to search Alvarado’s truck, the second

warrantless search of the truck was lawful under the automobile exception to the warrant

requirement.

       Reversed and remanded.


                                             7
