State of Minnesota, Respondent, vs. Rafael O'Toole Watson, Appellant.

State of Minnesota, Respondent, vs. Rafael O'Toole Watson, Appellant. A04-113, Court of Appeals Unpublished, January 11, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-113

 

 

State of Minnesota,
Respondent,

vs.
 
Rafael O'Toole Watson,
Appellant.

 

 

Filed January 11, 2005 Affirmed

Peterson, Judge

 

 

Ramsey County District Court

File No. K603938

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of first-degree controlled substance crime, appellant Rafael O'Toole Watson argues that an informant's tip, which included information that a certain person would arrive at a specific address in one of three described vehicles and predicted the person's behavior at the address and upon leaving the address, together with police corroboration of the information provided by the informant, were insufficient to establish probable cause to search his person.  We affirm.

           FACTS                     

            St. Paul Police Officers Don Grundhauser and Brad Hazelett received information from a confidential reliable informant (CRI) about an individual possessing narcotics.  The CRI told police that a heavy-set black male, between five feet seven and five feet eight inches tall, nicknamed Rae Rae, would have both hard, meaning crack, and soft, meaning powder, cocaine on his person; Rae Rae would have between one and two ounces, possibly more, of soft cocaine, probably on his person and possibly in his pants, near the crotch; Rae Rae would arrive at 1841 East Magnolia in St. Paul around 7:00 p.m., and he would be using one of three vehicles.  One vehicle was a candy-apple red Chevy Monte Carlo with Illinois license plates, and another was a candy-apple red Ford Expedition with Illinois license plates.  Grundhauser recalled that the third vehicle was a Lumina with Minnesota license plates, but Hazelett testified that it was a green Suburban.  The CRI also told police that after arriving at 1841 East Magnolia, Rae Rae would enter the apartment for about five minutes and then leave, traveling north on White Bear Avenue.  Grundhauser stayed in contact with the CRI after the initial report and was later told that Rae Rae would be using the Monte Carlo and would be accompanied by a female.

            Grundhauser testified that during the previous six months, the CRI had provided reliable information to the DEA and the St. Paul Police Department.  Grundhauser knew of at least five narcotics arrests or convictions resulting from information provided by the CRI.

            Police set up surveillance near 1841 East Magnolia at about 6:40 p.m.  An isolated apartment complex consisting of about 30 or 40 units is located there, and the location can only be accessed via two streets, Van Dyke and Hazel.  Hazelett testified that he is familiar with the area and that it has very low traffic volume.

            Shortly after 7:00 p.m., officers saw a red Monte Carlo with Illinois license plates arrive at 1841 East Magnolia.  A male matching the description given by the CRI and a female were in the car.  The male left the car and entered the apartment, remaining inside for five minutes.  The male returned to the car, which turned south onto Van Dyke from Magnolia and then traveled north on White Bear Avenue.

            Police stopped the Monte Carlo on White Bear Avenue and ordered the occupants out of the vehicle.  The male occupant was later identified as Watson.  Hazelett performed a pat search of Watson and found $1,516 in cash in his right front pants pocket and a blue Nokia phone in his left front pants pocket.  Hazelett lifted Watson's shirt and found in his belly button a baggy containing a substance that appeared to be hard cocaine.  The amount of hard cocaine was only four grams.  Hazelett relayed that information to Grundhauser, who was told by the CRI that Watson had more than that amount of cocaine.

            Police transported Watson to headquarters, where they strip-searched him, finding a package containing powder cocaine in his underwear.  The total weight of the hard and soft cocaine was 67.6 grams.

            Watson was charged by complaint with committing one count of first-degree controlled substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2002) (possession with intent to distribute cocaine).  Watson moved to suppress the cocaine discovered on his person, arguing that it was discovered as the result of an illegal search and seizure.  The district court denied Watson's motion.  Watson waived his right to a jury trial, and the parties submitted the case to the district court for trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty as charged and sentenced him to an executed term of 74 months in prison.  This is a direct appeal challenging the conviction.

D E C I S I O N

            When reviewing a pretrial order denying a motion to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); see also State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999) (existence of probable cause subject to de novo review).

            The Fourth Amendment to the United States Constitution and article I of the Minnesota Constitution prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions to the warrant requirement.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).

One exception to the warrant requirement is a search incident to a lawful arrest.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000).  If probable cause to arrest exists, police officers may conduct a search incident to arrest, even if the search occurs before the formal arrest.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  Probable cause to arrest exists when a person of ordinary care and prudence would have a strong and honest suspicion that a crime had been committed, based on objective facts.  State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).

In a close case, the lack of a warrant may weigh against a finding of probable cause. . . .  When determining the legality of a warrantless arrest, we look to the information that police took into consideration when making the arrest, not what they uncovered thereafter.  The information must allow an independent determination of probable cause and not a mere ratification of the bare conclusions of others.

 

. . .  Each case must be determined on its own facts and circumstances, and the facts must justify more than mere suspicion but less than a conviction.

 

State v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000) (citations and quotation omitted).

Whether information provided by a CRI can establish probable cause to search depends on the totality of the circumstances of the particular case, including the credibility and veracity of the informant.  Munson, 594 N.W.2d at 136.

[A]ll of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis.  Police may rely on an informant's tip if the tip has sufficient indicia of reliability.  When assessing reliability, courts examine the credibility of the informant and the basis of the informant's knowledge in light of all the circumstances.

 

Cook, 610 N.W.2d at 667 (quotation and citation omitted).

            Watson relies on Cook to argue that the information provided by the CRI and police corroboration of that information were insufficient to establish probable cause.  In Cook, a CRI provided a tip to law enforcement officers that the defendant was selling crack cocaine at a YMCA.  610 N.W.2d at 666.   The CRI stated that there was crack cocaine in the defendant's waistband and gave a physical description of the defendant, the clothing the defendant was wearing, a description of the defendant's car including its license plate, and the defendant's name.  Id.  The officers verified that a person matching the description of the defendant and his car were at the YMCA and arrested him.  Id.  This court concluded that the police lacked probable cause to arrest the defendant.  Id.  at 669.

            In a later case, State v. Ross, 676 N.W.2d 301, 304-05 (Minn. App. 2004), this court concluded that probable cause existed when "the CRI provided detailed information concerning the color and type of the suspect's hat, the color of the suspect's shirt, the car the suspect would be driving, and the time and place of the suspect's arrival," and the police "verified the time and place of arrival, the car, the hat, the shirt, and a given name that was consistent with the street name."  This court rejected the argument that the fact that the CRI called law enforcement a second time to state that the suspect would be driving a different car than the one originally stated indicated that the CRI was unreliable.  Id. at 304.  This court explained that "this correction enhances the CRI's reliability and refutes the district court's conclusion that the CRI was operating on rumor because it shows the CRI had very current information and was careful to update police."  Id.; see also Munson, 594 N.W.2d at 136 (probable cause existed when a CRI stated that two defendants driving a green rental car would be at a specific address at a specific time and gave the names of the two defendants and police corroborated all of the details in the tip, including the occupants' identities before searching the vehicle).

            Here, the CRI provided the following information to police:  a detailed physical description of Watson; a description of three possible cars he would be using, which was later narrowed to a specific car; a female would accompany Watson; a time and place where Watson could be located; Watson's behavior at that place; and the route Watson would take upon leaving.  Police officers corroborated all of this information before stopping Watson.  The information provided by the CRI and police corroboration of that information was comparable to that in Ross and Munson.  The fact that the CRI had previously provided reliable information to the DEA and the St. Paul Police Department also indicates reliability.

            Watson argues that this case is distinguishable from Munson and Ross because, in Munson, the police verified the suspects' identities, and, in Ross, police verified a given name that was consistent with the street name provided by the CRI.  We conclude that that distinction does not defeat the existence of probable cause.  The Ross court, in distinguishing Cook, explained:

The crux of our reasoning [in Cook], though, was that the CRI did not predict any future behavior by the defendant; thus leading to a conclusion that the CRI had only passed along easily obtainable information and not inside information.

 

. . . .

 

. . .  The key distinguishing characteristic for us in Cook was whether the CRI predicted future behavior.  That key element was lacking in Cook and led to a conclusion that there was not probable cause.

 

Id. at 305 (citations and quotation omitted).  Here, as in Munson and Ross, the CRI accurately predicted Watson's future behavior.

            The district court did not err in denying Watson's motion to suppress.

            Affirmed.