                        This opinion will be unpublished and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                        UNPUBLISHED OPINION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.




                                            15
