This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. Â§ 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Matthew Edwin Millsop,
Filed August 19, 2013
Roseau County District Court
File No. 68-CR-11-966
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Karen M. Foss, Roseau County Attorney, Michael P. Grover, Assistant County Attorney,
Roseau, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant
Public Defender, St. Paul, Minnesota; and
Aaron G. Thomas, Special Assistant Public Defender, Minneapolis, Minnesota (for
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Cleary,
On appeal from his conviction of a fifth-degree controlled-substance crime,
appellant argues that (1) the district court erred in denying his motion to suppress
evidence seized from an unlawfully expanded investigatory stop and pat-down search for
weapons and (2) the district court erred in ruling that appellantâs wallet was searched
incident to a lawful arrest. Because there was probable cause to support appellantâs arrest
and because his arrest was not otherwise unlawful, we affirm.
On or about October 4, 2011, Bureau of Criminal Apprehension (BCA) Special
Agent Newhouse and Investigator Adams of the Roseau County Sheriffâs Department
interviewed a confidential informant (CI) who informed the officers that appellant
Matthew Millsop and another individual, David Barkley, were involved in possessing and
distributing methamphetamine in the Roseau County area. The CI told the officers that
on or about October 3, he had observed appellant purchase an âeight ballâ quantity of
methamphetamine from Barkley. The CI further told the officers that he had drug-related
communications with both Barkley and appellant via text messaging, which the CI
showed the officers.
On October 4, Newhouse, Adams, and BCA Special Agent Woolever used the CI
to conduct a controlled buy of a small amount of methamphetamine from Barkley near
Two additional controlled buys from Barkley took place at some point
thereafter. Newhouse was aware that there had also been a controlled buy of prescription
medications from appellant and that the related investigation was ongoing.
On or about October 17, Newhouse was advised by the Warroad police chief that
Seven Clans Casino security personnel had discovered a small baggie containing a
substance resembling methamphetamine on or about October 11. Newhouse reviewed
the incident report, which included a casino surveillance photo of one of the individuals
that casino security personnel believed had dropped the baggie, and recognized the
individual as Barkley.
That same day, Newhouse contacted the Red Lake Police Department and
scheduled a meeting with the police and casino security personnel for October 18. At the
meeting, casino security personnel told Newhouse that they had been observing
suspicious activities in and around the casino involving several individuals who they
believed were involved in possessing and/or distributing methamphetamine as well as
laundering money from drug sales through the casino. Newhouse was shown several
photographs of the individuals that casino security had been monitoring and recognized
the individuals as appellant, Barkley, and others.
Casino security personnel told
Newhouse that they had reviewed surveillance video from the day they found the baggie
with what appeared to be methamphetamine and that the video indicated that the baggie
was dropped by appellant or Barkley, who had been seated next to each other and had
been removing items from their pockets. Casino security personnel told Newhouse that
they would continue monitoring the activities of these individuals and that they would
contact the Red Lake Police Department if any additional suspicious behavior was
At approximately 9:00 p.m. on October 20, Newhouse received a telephone call
from Investigator Brunelle of the Red Lake Police Department.
Newhouse âthat he had received information from Red Lake Casino security personsâ
that appellant, Barkley, and âsome other individuals [discussed at the previous meeting]
may be at the casino, that they were concerned that they may be involved in selling drugs
and/or laundering money.â
After receiving the call from Brunelle, Newhouse contacted Woolever, advised
him of what was happening at the casino, and requested his assistance. Newhouse then
drove to Warroad to start conducting surveillance outside of the casino near the parking
lot. At the time he arrived, Newhouse observed appellantâs vehicle leaving the parking
lot area and driving away. Newhouse lost sight of the vehicle but remained at the casino
because âthere were other suspects involved in [the] investigation [besides appellant]
who had outstanding felony warrantsâ who law enforcement wanted to apprehend. While
Newhouse continued surveillance, he did not enter the casino or witness any of the
surveillance video of the allegedly suspicious behavior. Newhouse did, however, have
telephone conversations with Brunelle, who was traveling from Bemidji to Warroad, and
with casino security personnel located inside the casino, who âprovided [Newhouse] with
updates on some of the locations of individuals and some of the behavior that they had
witnessed during the course of the evening.â
Appellant returned to the parking lot at approximately 11:00 p.m. Newhouse
made telephone contact with Woolever to advise him of appellantâs presence and then
approached appellantâs vehicle on foot to discuss the ongoing investigations of
appellantâs suspected drug-related activities. Newhouse testified that â[w]e were going to
ask [appellant] some questions and hopefully get some cooperation from him.â
At the time Newhouse approached, appellant was in his vehicle and talking on his
cellular phone to a person unknown to Newhouse. Newhouse requested that appellant
end his telephone conversation, and appellant âspoke into the phone and said Don
Newhouse is arresting me right nowâ and started pushing buttons on his phone.
Woolever arrived on the scene shortly thereafter.
When Woolever arrived, he suggested that the three step into an alley behind a
fence so that they could be out of sight from any other potential suspects involved in the
investigation. In the alley, Woolever and Newhouse âstarted visiting with [appellant].â
The officers advised appellant that they were aware he was on felony probation and that
they would likely be contacting probation regarding the information they had received
from the casino. Appellant became irritated as the officers began speaking with him
regarding the ongoing investigation of him at the casino.
Newhouse conducted a pat-down search of appellant âfor weapons and officer
safetyâ and, while no weapons were found, Newhouse felt and removed from appellantâs
pocket what was later identified as a wallet and the keys to appellantâs vehicle. A few
seconds later, Newhouse observed Barkley drive past them and pull into the casino
parking lot. Newhouse testified that he and Woolever âdecided that [they] needed to
make contact with Barkley before he left the scene and [they] were unable to locate him,
so [they] asked [a local officer] to take [appellant] up to the police department while
[they] spoke or attempted to speak with Barkley.â Appellant was handcuffed and placed
in the back of a police vehicle. After appellant was driven away from the parking lot by
the local officer, Newhouse and Woolever approached Barkley.
subsequently searched, and methamphetamine was discovered in an Altoids container
that he was carrying. Barkley was then transported to the police station where appellant
was being held.
At the station, Woolever approached appellant in an interview room, and appellant
stated that he wanted to speak with an attorney. Woolever then searched appellantâs
wallet and discovered several small baggies of a substance that later tested positive for
methamphetamine. Newhouse later found $1,549 in cash inside the wallet. Woolever
advised appellant that he was under arrest for a fifth-degree controlled-substance crime
(possession of methamphetamine). Appellant was then transported to the Roseau County
jail. Shortly thereafter, Newhouse and Woolever returned to the casino parking lot and
searched appellantâs vehicle, finding and seizing additional controlled substances and
Appellant was charged with controlled-substance crime in the fifth degree. He
subsequently moved to suppress the evidence against him as the result of an illegal search
and seizure and to dismiss the charge. When asked at the first omnibus hearing on
December 5, 2011, whether appellant was under arrest at the time he was handcuffed and
put in the squad car, Newhouse replied that appellant âwas being detainedâ and affirmed
that appellant âwas not free to leave.â At the second omnibus hearing on January 30,
2012, Woolever also affirmed that, at the time appellant was handcuffed, he was not free
to go. When asked at what point appellant would have been released that evening,
Newhouse replied, âlacking any other evidence to link him to any ongoing controlledsubstance crimes in Warroad at the Seven Clans Casino, [appellant] would have most
likely been transported to the Lake of the Woods County [j]ailâ because of the previous
controlled buy of prescription drugs from appellant that took place in that county.
Similarly, Woolever testified that if, on the evening of October 20, they had not found
any controlled substances on appellantâs body or in his vehicle, appellant would not have
been free to leave because he would have been arrested for the controlled buy of
prescription drugs. When asked whether the âinformation that [he] received from the
casino [was his] basis for probable cause for detaining and searchingâ appellant,
Newhouse responded that â[i]t also corroborated the ongoing investigation that we had on
Barkley as far as the controlled buys, but yes.â
On January 9, 2012, the complaint against appellant was amended to include three
additional controlled-substance charges stemming from the search of appellantâs vehicle.
Appellant moved to dismiss the additional three counts and to suppress all evidence
found during the search of his vehicle as incident to an unlawful arrest and not within the
automobile exception to the warrant requirement.
The district court held a second
omnibus hearing on appellantâs second motion to suppress on January 30.
The district court issued an order in March 2012 denying appellantâs motion to
suppress the evidence found during the search of the wallet. The order granted, however,
appellantâs motion to suppress the evidence stemming from the search of his vehicle and
dismissed the three added charges. In the order, the district court noted that appellant
was under investigation for selling prescription medication as part of a controlled buy
involving a confidential reliable informant (CRI) in Lake of the Woods County and that a
warrant was ânot required to arrest a felony suspect in a public place.â The court further
found that â[b]ecause the wallet was found on [appellantâs] person during the pat search
of [appellant] in the alley, the subsequent search of [appellantâs] wallet at the Warroad
Police Department was a valid search incident to arrest and did not require a warrant to
execute.â The district court concluded that âthe search of [appellant] and of his wallet
was a search incident to his arrest and that [appellantâs] Fourth Amendment rights were
not violated by such search.â
Appellant pleaded not guilty and the district court conducted a trial pursuant to
Minn. R. Crim. P. 26.01, subd. 4. The district court entered a finding of guilt and
sentenced appellant to a 24-month commitment. The sentence was stayed, and appellant
was ordered to serve 8 months in jail and thereafter be placed on supervised probation.
This appeal follows.
âWhen reviewing a pretrial order on a motion to suppress evidence, we may
independently review the facts and determine whether, as a matter of law, the district
court erred in suppressing or not suppressing the evidence.â State v. Askerooth, 681
N.W.2d 353, 359 (Minn. 2004). This court reviews de novo whether a search or seizure
is justified by probable cause. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).
The Fourth Amendment to the United States Constitution and Article I, section 10
of the Minnesota Constitution guarantee an individualâs right to be free from
unreasonable searches and seizures. Evidence seized in violation of the constitution must
generally be suppressed. State v. Jackson, 742 N.W.2d 163, 177â78 (Minn. 2007).
âWarrantless searches are generally unreasonable unless they fall within a recognized
warrant exception.â State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). One of the
exceptions to the warrant requirement âis that a personâs body and the area within his or
her immediate control may be searched incident to a lawful arrestâ for weapons or
evidence. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). Another exception is, for
the purpose of officer safety, protective pat-down searches for weapons on the outside of
a suspectâs clothing. Terry v. Ohio, 392 U.S. 1, 29â31, 88 S. Ct. 1868, 1884â85 (1968).
If an officer exceeds the permissible scope of a pat down for officer safety, any
evidence seized may still be admissible regardless of the illegality of the pat-down search
if a subsequent arrest and the pat-down search were substantially contemporaneous, and
probable cause to arrest existed before the illegal pat-down search. State v. Cornell, 491
N.W.2d 668, 670 (Minn. App. 1992). Similarly, â[a] search âincident to arrestâ based on
probable cause to arrest is valid even if the search occurs before the arrest.â State v.
Wasson, 602 N.W.2d 247, 252 (Minn. App. 1999), affâd, 615 N.W.2d 316 (Minn. 2000).
âIt is not important that the search precedes an arrest so long as the fruits of the search are
not necessary to support probable cause to arrest.â Cornell, 491 N.W.2d at 670.
Appellant argues that he was not under arrest at the time his wallet was seized.
Therefore, he argues, the seizure did not occur during a search incident to an arrest and
occurred instead during a pat down for officer safety. Appellant argues that the seizure of
the wallet exceeded the permissible scope of a pat down and must be suppressed.
Appellant also argues that his arrest subsequent to the frisk was not supported by
probable cause, was therefore illegal, and that the search of the wallet at the police station
was also therefore illegal.
The state admits, as we agree it must, that the seizure of appellantâs wallet during
the pat-down search exceeded the permissible scope of a pat down for officer safety. See
Terry, 392 U.S. at 29â31, 88 S. Ct. at 1884â85 (limiting pat downs to the outer clothing
unless what is felt is obviously a weapon); State v. Dickerson, 481 N.W.2d 840, 844
(Minn. 1992) (providing that if, during a pat down, an officer feels something that cannot
possibly be a weapon, they cannot reach inside a pocket to see what it is). The state
asserts, however, that the fact that the officers exceeded the permissible scope of a patdown search is irrelevant and argues that the pat down was actually a search incident to a
lawful arrest because Woolever and Newhouse had probable cause to arrest appellant in
the casino parking lot.
Before we can determine whether probable cause existed to support appellantâs
arrest (and any substantially contemporaneous search), we must first identify when the
arrest occurred so that we can evaluate what law enforcement knew at the time of the
arrest for purposes of the probable-cause analysis. See State v. Carlson, 267 N.W.2d 170,
174 (Minn. 1978).
This court examines all of the surrounding circumstances of police detention to
determine whether an arrest has occurred. State v. Olson, 634 N.W.2d 224, 229 (Minn.
App. 2001), review denied (Minn. Dec. 11, 2001). The fact of an arrest is not determined
by the officerâs subjective intent or formal declarations; this court instead applies an
objective test to determine whether the restraints on the defendantâs freedom were
comparable to those associated with a formal arrest. See State v. Hince, 540 N.W.2d 820,
823 (Minn. 1995). âThe ultimate test to be used in determining whether a suspect was
under arrest is whether a reasonable person would have concluded, under the
circumstances, that he was under arrest and not free to go.â State v. Beckman, 354
N.W.2d 432, 436 (Minn. 1984). When law enforcement places a suspect in handcuffs,
orders him into a police vehicle, and transports him to the police station, a full intrusion
on the suspectâs liberty and an arrest has occurred, regardless of whether the suspect was
formally placed under arrest. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984).
Regardless of Newhouseâs subjective intent at the time that appellant was
handcuffed that appellant was merely being detained for questioning, we conclude that
appellant was arrested when he was handcuffed, placed in the back of the police vehicle,
and subsequently transported to the police station. See id. (rejecting the argument that
defendant was merely in custodial detention and not arrested because the defendant had
been handcuffed). Both Woolever and Newhouse testified that appellant was not free to
leave at the time he was handcuffed.
Because appellant was arrested at the time that he was handcuffed, the next
question is whether, at that time, the police had probable cause to arrest appellant. As
long as the arrest was supported by probable cause, the pat-down search and subsequent
search of appellantâs wallet would be legal as incident to arrest and any evidence would
have been lawfully obtained at that time. See Cornell, 491 N.W.2d at 670.
B. Probable Cause
A warrantless arrest like that which occurred here is legal as long as the police had
probable cause before the arrest occurred. See State v. Riley, 568 N.W.2d 518, 524
(Minn. 1997); State v. Dickey, 827 N.W.2d 792, 796 (Minn. App. 2013). Whether there
is probable cause for a citizenâs arrest depends on findings of fact that are reviewed for
clear error under the clearly erroneous standard, but it is ultimately a question of law to
be reviewed de novo. State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d
789, 795 (Minn. 2000).
Probable cause exists if the objective facts indicate that ââa person of ordinary care
and prudence [would] entertain an honest and strong suspicionâ that a crime had been
committed.â State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (alteration in original)
(quoting Carlson, 267 N.W.2d at 173). âIn applying this test, a court should not be
unduly technical and should view the circumstances in light of the whole of the arresting
officerâs police experience as of the time of the arrest.â Carlson, 267 N.W.2d at 174.
Because the test for probable cause is an objective one, a search must be upheld âif there
was a valid ground for the search, even if the officers conducting the search based the
search on the wrong ground or had an improper motive.â State v. Pleas, 329 N.W.2d
329, 332 (Minn. 1983). Information acquired through regular police channels can be
used to support probable cause regardless of whether the arresting officer knows the
underlying basis of the official suspicion. State v. Cavegn, 294 N.W.2d 717, 721 (Minn.
Before reaching its conclusion that there was probable cause to arrest appellant,
the district court had an opportunity to listen to the testimony of Woolever and Newhouse
and to review the police reports submitted as evidence. In analyzing whether there was
probable cause, the district court noted that appellant was under investigation for selling
prescription medications and that, as a part of that ongoing investigation, a CRI had
participated in a controlled buy of prescription medication from appellant. The district
courtâs findings of fact included that casino security personnel and the Red Lake police
suspected that appellant was âone of several individuals possessing and/or distributing
drugs and/or laundering money from drug sales inside the casinoâ and that both
Newhouse and Woolever were âaware of [appellant] from prior and ongoing
investigations, including investigations of [appellant] selling prescription medications.â1
We are mindful that information acquired through regular police channels, like
much of the information here, can be used to support probable cause. Id. Especially âin
light of the whole of the arresting officerâs police experience,â we conclude that there
Appellant does not challenge the credibility or reliability of the CI or the casino security
personnel. Because the district court adopted in its findings of fact the information
relayed by the CI and casino security personnel to Newhouse and Woolever, the district
court found testimony regarding that information credible, a determination to which this
court gives deference. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)
(providing that appellate courts defer to district court credibility determinations).
was probable cause to arrest appellant for involvement in controlled-substances crimes at
the time he was handcuffed. Carlson, 267 N.W.2d at 174. In addition to the facts cited
by the district court, evidence included that the CI told law enforcement officers that he
had witnessed appellant purchase methamphetamine from Barkley, and that the casino
security personnel had video indicating that either Barkley or appellant had dropped a
baggie of methamphetamine inside the casino while they were sitting together at a bank
of slot machines. These facts together would likely cause âa person of ordinary care and
prudence to entertain an honest and strong suspicion that the person under consideration
is guilty of a crime.â Id. at 173.
Appellant argues that his arrest was not supported by probable cause because
Woolever testified that he did not believe he had acquired probable cause to arrest
appellant until speaking with Barkleyâa conversation that occurred after appellant was
handcuffed. In fact, many of appellantâs arguments regarding whether probable cause
existed at the time he was arrested are based on the subjective thoughts or beliefs of
Woolever and Newhouse. These arguments are unavailing, as an officerâs subjective
belief that he did not have probable cause at a particular point does not mean that
objective probable cause did not exist. Beckman, 354 N.W.2d at 436.
Appellant further argues that if probable cause to arrest him existed before
October 20, then the officers would have done so. Yet, appellant cites no authority that
requires law enforcement to arrest a suspect at the moment probable cause is established,
and this court generally does not address argument unsupported by legal citation or
analysis. Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).
Moreover, the issue is not whether there was probable cause to support arresting
appellant at some point in the past, but whether there was probable cause when he was
arrested on October 20.
In a similar vein, appellant argues for the first time in his reply brief that any
reliance on the ongoing investigation into appellantâs sale of prescription drugs in May
2011 to support probable cause is impermissible because that information was stale at the
time of arrest in October. Arguments generally cannot be raised for the first time in a
reply brief. State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009) (applying rule now found
in Minn. R. Civ. App. P. 128.02, subd. 4). While there are undoubtedly temporal limits
to what constitutes an âongoing investigation,â and while â[t]ime is . . . crucial to the
probable cause concept,â the district court found that the investigation was ongoing.
State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn.
Jan. 14, 1985).2 A factor that courts are to consider when analyzing whether information
is stale is whether there is any indication of ongoing criminal activity. Id. at 193â94.
Here, the support in the record regarding the ongoing nature of the investigation as it
pertains to the appellant after the controlled buy in May of 2011 is minimal. However,
there is sufficient evidence of appellantâs involvement in ongoing controlled-substances
Appellant also cites State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998), which held sixmonth-old information offered in support of a search-warrant application to be stale.
However, the age of information contained in a search-warrant application is qualitatively
distinguishable from the length of an âongoing investigation,â as it pertains specifically
to the search of a location where, after the passage of time, contraband may well no
longer be present, negating probable cause for the search warrant. Here, the alleged
staleness surrounded a five-month-old controlled buy, a completed felony that made
appellant a felony suspect.
criminal activity at the casino between May of 2011 and October of 2011 to support the
courtâs finding, and, consequently, the information supporting probable cause in this case
was not stale.
Ultimately, because there was probable cause to arrest appellant at the time he was
handcuffed, the officers were entitled to search him incident to his arrest. Because the
search incident to arrest was limited and within the purpose of such a searchâweapons
or evidenceâthe seizure and search of appellantâs wallet was valid.
Appellant also argues that his arrest was illegal because Woolever failed to
comply with Minn. Stat. Â§ 629.35 (2010). We do not agree. Section 629.35 requires that,
when making an arrest at night without a warrant, the officer shall inform the person
arrested of his authority and âthe cause of the arrest.â The purpose of this statute is âto
give notice to the person being arrested of the nature of the crime for which he is being
arrested.â State v. Stark, 288 Minn. 286, 291, 179 N.W.2d 597, 601 (1970).
Appellant was aware of the officerâs authority to make the arrestâappellant knew
that Newhouse and Woolever were police officers.
The record shows that, before
appellant was handcuffed, the officers advised him that they were aware he was on felony
probation and that they would likely be contacting probation regarding the information
they had received from the casino concerning their suspicions and investigation into
appellantâs suspected controlled-substance activities.
The record also provides that
appellant became irritated as the officers began speaking with him regarding the ongoing
investigation of his activities at the casino. These facts indicate that appellant was aware
that he was being arrested because of his activities with controlled substances. Therefore,
there was substantial compliance with the statute because appellant was on notice as to
why he was being handcuffed and arrested.