State of Minnesota, Appellant, vs. Mark Harris, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-2050

 

State of Minnesota,
Appellant,

 

vs.

 

Mark Harris,

Respondent.

 

 

Filed June 20, 2000

Reversed and remanded

Peterson, Judge

 

Hennepin County District Court

File No. 99072201

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
 
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
 
John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414; and

 

William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)

 

 

            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            The state appeals from a pretrial order suppressing evidence.  We reverse and remand.

FACTS

On July 22, 1999, Officer Eric Nelson of the Minneapolis Police Department received information from an informant that a 5'10" black male, nicknamed Marcus, driving a 1999, four-door, red Toyota Camry, would be delivering a quantity of crack cocaine to a grocery store at 417 Cedar Avenue that day and that the narcotics would be on the driver's person or somewhere inside the car.  Nelson had not previously worked with this informant.  But based on information that Nelson received from other Minneapolis police officers who had worked with the informant, Nelson considered the informant to be reliable.

Nelson and the informant set up surveillance in a parking lot across the street from the grocery store, approximately 100 yards away.  Nelson saw the suspect vehicle driving on Cedar Avenue.  As the car approached, the informant told Nelson "that's him."  To protect the informant's identity, Nelson called for a marked squad car with uniformed officers to stop the car.  Officer David Monjeau stopped the Toyota after it crossed a lane without signaling and pulled into a parking spot directly in front of the grocery store at 417 Cedar.  Monjeau testified that he stopped the Toyota for the traffic violation and because he had received the request to stop the car.

As Monjeau approached the Toyota, he noticed that the driver's right hand kept dropping down off the steering wheel to the seat level.  On the basis of his training and experience, Monjeau assumed that the driver was trying to hide narcotics or a weapon. Monjeau told the driver that he had been stopped for the traffic violation.  He asked for a driver's license and identified the driver as appellant Mark Harris.  Monjeau asked Harris to get out of the car.  As Harris got out, he once more dropped his hand toward the console.  When Harris stepped aside, Monjeau saw a clear cellophane wrap or baggie sticking up between the seat and the console, but he could not see its contents.  Monjeau testified that he believed the baggie contained narcotics "because crack cocaine tends to come wrapped in cellophane baggies."

Monjeau took Harris to the rear of his squad car for a pat-down search, handcuffed him, and placed him in the rear of the squad car.  After Monjeau and his partner identified the two passengers riding with Harris, Monjeau pulled the baggie from between the seats and found that it contained what he suspected to be crack cocaine.  Later tests indicated that the substance was 2.9 grams of crack cocaine.

Harris was charged with one count of fifth-degree controlled substance crime (possession), in violation of Minn. Stat. § 152.025, subd. 2(1) (1998).  Following a Rasmussen hearing, the district court granted Harris's motion to suppress the cocaine, concluding that the informant's statements did not provide the police with reasonable suspicion to stop Harris's Toyota or probable cause to search the vehicle and that the evidence seized was not in plain view.

D E C I S I O N

            To prevail on a pretrial appeal from a suppression order, the state must establish that the district court's ruling constitutes clear error and that the ruling will have a critical impact on the state's ability to successfully prosecute the defendant.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  This court reviews de novo the district court's "determination of reasonable suspicion as it relates to Terry stops and probable cause as it relates to warrantless searches."  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).

            The district court's ruling will have a critical impact on the state's case because suppression of the evidence makes further prosecution impossible. 

1. Reasonable Suspicion for the Stop

            A Terry stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citations omitted).

In deciding the propriety of investigative stops, we review the events surrounding the stop and consider the totality of the circumstances in determining whether the police had a reasonable suspicion justifying the stop.

Id.

            The state argues that the information provided by the informant, which was corroborated by police observation and the informant's at-the-scene identification of the driver of the car, provided the police with a reasonable suspicion of criminal activity that justified the stop of the vehicle.  The district court found that the informant was unreliable because he did not give the source of his information and there was no evidence presented to show the nature of his relationship to Harris or why he decided to come forward.

            "Having a proven track record is one of the primary indicia of an informant's veracity."  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing State v. Maldonado, 322 N.W.2d 349, 351 (Minn. 1982)); see also State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985) (holding that, although more detail is preferable, a statement that an informant "has been used over several years successfully" was sufficient to permit an inference that the "informant had provided accurate information to the police in the past").  Nelson had not previously worked with this informant, but he testified that "we had received information from some other officers in other precincts, who had used this informant for a few narcotics deals."  Nelson testified further that the officers in other precincts "just informed me that he had given them information that led to the recovery of narcotics and arrest of the people who had these narcotics on them."  This information was sufficient to demonstrate that the informant was reliable.

            Furthermore, when police rely on information provided by an informant, "all of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis," including the credibility and veracity of the informant.  State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).   While the factors of reliability and the basis of knowledge are relevant considerations in a totality-of-the-circumstances analysis, a deficiency in one can be compensated for by a strong showing as to the other, or by some other indicia of reliability.  Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329 (1983).  An informant's reliability, and the reliability of the information provided, can be established by police corroboration.  McCloskey, 453 N.W.2d at 704.  In assessing the basis of the informant's knowledge, the quantity and quality of detail in the informant's report must be examined, as well as whether the police independently verified important details of the informant's report.  Alabama v. White, 496 U.S. 325, 331-32, 110 S. Ct. 2412, 2417 (1990).  The independent corroboration of specific details of an informant's tip may support a finding of reasonable suspicion or probable cause.  Munson, 594 N.W.2d at 136.

            In Munson, the police received a telephone call from an informant who told them that within one and one-half to two hours a rented, green Bronco or Jeep-type vehicle with Minnesota license plates would arrive at a certain address.  Id.  The informant also identified two of the occupants of the vehicle and said that the vehicle would be coming from Chicago and contained a large amount of crack cocaine hidden somewhere inside or underneath the vehicle.  Id.  Before making a stop, the police independently corroborated that the vehicle fit the informant's description, was registered to a rental agency, and arrived at the designated address within 20 minutes of the expected time.  Id.  The supreme court held that "corroboration of several specific details of the [confidential reliable informant's] tip did provide the police with the reasonable articulable suspicion of criminal activity that is needed to execute a valid Terry stop of the Blazer's occupants for further investigation."  Id.

            Here, the informant's tip included a description of the driver and vehicle, the driver's nickname, and the location of the delivery.  Nelson visually corroborated the description of the vehicle as it approached the specified location.  Accordingly, applying Munson, we conclude that the police had reasonable suspicion to stop Harris.

            Also, this informant was known to the police and accompanied Nelson on surveillance, which lends credibility to the informant's information because the police could hold the informant accountable for providing false information.  In Re G.M., 560 N.W.2d at 691.

2.  Probable Cause to Search the Vehicle

            The state argues that the police had probable cause to search the Toyota based on (1) the information provided by the informant, which was corroborated by Nelson's observations before the stop, (2) Monjeau's observations of Harris's furtive gestures and the baggie after the stop, and (3) the informant's on-the-scene identification of Harris.  We agree.

            Generally, warrantless searches are per se unreasonable.  Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412 (1978); State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  But under the "motor vehicle" exception to the warrant requirement, police may search a vehicle without a warrant if they have "probable cause for believing that [the] vehicles are carrying contraband or illegal merchandise."  United States v. Ross, 456 U.S. 798, 808, 102 S. Ct. 2157, 2164 (1982).  Probable cause to search must be based on "objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers."  Id.  Probable cause is a "practical, common sense decision whether, given all the circumstances * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place."  Gates, 462 U.S. at 238, 103 S. Ct. at 2332. 

            In Munson, the details corroborated after the stop but before the search included the "type, year, and color of the vehicle, the fact that it was registered to a rental agency, its destination, the timing of its arrival, and the identity of its occupants."  594 N.W.2d at 136.  On this basis, the supreme court held that the corroborated details of the informant's tip, as well as the past reliability of the informant, gave the police probable cause to believe that the vehicle was carrying contraband and justified the search.  Id.  

            Here, the police did not have vehicle registration information, and the informant knew Harris only by a nickname.  But before the search, the police corroborated the type, year, and color of the car, and the informant identified the driver.  Also, Monjeau's observation of Harris's right hand dropping from the steering wheel to his side near the console provided additional factual information that helped establish probable cause to search the Toyota.  "Furtive gestures can provide a basis for probable cause."  State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986).  The Munoz court determined that a suspect who leaned so far to the passenger side of the vehicle as to be barely visible was "likely concealing either contraband or a weapon."  Id.; see also State v. Gallagher, 275 N.W.2d 803, 807-08 (Minn. 1979) (probable cause supported by "furtive gestures" of driver's immediate exit from car and passenger's awkward movements in attempt to shield brown paper bag containing contraband from police officer's view).

            We also note that this court recently determined that an informant's proven "track record" cannot provide probable cause to support a warrantless arrest[1] where the information obtained from the informant "did not predict any future behavior" on the part of the defendant and thus failed to establish the informant's basis of knowledge.  State v. Cook, ___ N.W.2d___, ___, 2000 WL 463003, at *3-4 (Minn. App. Apr. 25, 2000), pet. for review filed (Minn. May 26, 2000).  But in Cook, the information the informant provided police could have been easily obtained by anyone, not just by someone with inside knowledge of the suspect's activities.  Id.  Here, the fact that Harris would arrive at a specific grocery store on a specific day was not information that could be easily obtained by the general public, and therefore, demonstrated that the informant had inside knowledge of Harris's activities.

            Reversed and remanded.

 

[1]  Probable cause necessary to support the search of a vehicle is equivalent to that necessary for an arrest.  In re G.M., 560 N.W.2d at 695.