State of Minnesota, Respondent, vs. Craig K. Camp, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-1028

State of Minnesota,

Respondent,

vs.

Craig K. Camp,

Appellant.

Filed April 21, 1998

Affirmed

Randall, Judge

St. Louis County District Court

File No. KX96101764

Hubert H. Humphrey III, Attorney General, Curtis P. Zaun, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103; and

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for appellant)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant argues that the evidence used to convict him of fifth-degree possession of a controlled substance should have been suppressed by the district court. Appellant argues the police did not have probable cause to arrest him for possession of a controlled substance. We affirm.

FACTS

Officer Brian Lillis was dispatched to investigate a 911 report of two "suspicious individuals" who appeared to be going through an automobile. When Lillis arrived at the scene, he observed a vehicle matching the reported description, idling with its headlights on and the driver's side door open. The vehicle was parked in front of appellant Craig Kendall Camp's residence. Initially, Lillis noticed two men in the vehicle, but when he pulled up and parked behind the vehicle, the individual in the backseat was no longer visible.

Lillis, along with Officer LeRoy Hilde, who had arrived at the scene, approached the vehicle and identified the individuals as Camp and Jayson Puska. Lillis was familiar with Camp because of his previous felony convictions. Camp was in the driver's seat, making "ratcheting" motions and appeared to be working on the steering column. Puska was in the back seat, lying on and partially covered by a reddish plaid flannel shirt. When questioned, Camp said that he was working on the headlights. Lillis frisked Camp for weapons because he had received information that Camp carried a handgun in his boot. During the frisk, Lillis discovered a 75-watt bulb with its filament removed and black residue inside the bulb in Camp's jacket pocket. Lillis found this unusual, but he returned it to Camp's jacket pocket.

As Camp was running a warrant check on Camp and Puska, he received a call on his cellular telephone from St. Louis County Sheriff's Deputy Peterson, informing him that Peterson had received information from a confidential informant that Camp might be in possession of methamphetamine and that Puska might be in possession of methamphetamine and marijuana.

When Lillis returned to the vehicle, he noticed that Puska appeared nervous and fidgety. Lillis asked Puska to get out of the vehicle so he could be frisked for weapons. The frisk revealed a large wad of currency in Puska's pants pocket. Lillis asked if he could search the vehicle and Puska consented, stating that the vehicle was not his. Lillis reached into the backseat and removed the reddish flannel shirt. In the breast pocket he found a pack of cigarettes and a cellophane wrapper, containing three paper bindles and a brown, rock-like substance wrapped in plastic. Puska denied owning the shirt and said that he did not know who owned it. Suspecting the "rock" to be methamphetamine, Lillis placed Camp and Puska under arrest for possession of a controlled substance. A more thorough search of the cigarette pack revealed a razor blade between the inner foil and the outer box. Testing revealed the presence of methamphetamine in the light bulb and on the razor blade.

Camp was charged in St. Louis County District Court with three counts of fifth-degree controlled substance crime. Count I alleged the sale of marijuana in violation of Minn. Stat. § 152.025, subd. 1(1) (1996); Count II alleged the possession of methamphetamine in violation of Minn. Stat. 152.025, subd. 2(1) (1996); and Count III alleged the possession of cocaine in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). Prior to trial, the state dismissed Count III, alleging the possession of cocaine. The jury acquitted Camp of Count I, alleging the sale of marijuana but convicted him of Count II for possession of methamphetamine. Camp was sentenced to 15 months' imprisonment.

D E C I S I O N

Probable cause to arrest exists where under the circumstances the objective facts are such that "'a person of ordinary care and prudence [would] entertain an honest and strong suspicion' that a crime has been committed." State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)). Probable cause is something more than mere suspicion, but something less than the evidence required to sustain a conviction. State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (1968). When examining whether there was probable cause to arrest, an appellate court "should accept the officer's on-the-scene probable-cause assessment if reasonable men would under the same circumstances make the same determination * * * ." State v. Compton, 293 N.W.2d 372, 375 (Minn. 1980). Because the decision of whether the arresting officers had probable cause affects constitutional rights, this court "'makes an independent review of the facts to determine the reasonableness of the police officer's actions.'" State v. Moorman, 505 N.W.2d 593, 599 (Minn. 1993) (quoting State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd, 495 U.S. 91, 110 S. Ct. 1684 (1990)).

In State v. Childs, 269 N.W.2d 25, 26 (Minn. 1978), the defendant was charged with possession of a controlled substance when two bags of marijuana were discovered on him in his pocket following his arrest for shoplifting. The supreme court noted that the fact that defendant's initial arrest was for shoplifting rather than possession of a controlled substance was immaterial. Id. at 28. The court held that "the fact that the search uncovered evidence of drug possession rather than evidence of theft does not detract from the lawfulness of the search." Id. In State v. Ailport, 413 N.W.2d 140, 145 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987), this court alluded to the inclusive nature of probable cause when it held:

Based upon the totality of the circumstances, the police could reasonably entertain an honest and strong suspicion appellant was a participant in the commission of criminal activities.

(Emphasis added.)

Contrary to Camp's assertion, the focus of this court's inquiry is not limited to whether the police had probable cause to believe that he possessed a controlled substance as the complaint charged. Rather, this court inquires simply whether, under the objective circumstances, a person of ordinary care and prudence would have entertained an honest and strong suspicion that the defendant committed a crime or was engaged in criminal activity. Probable cause can be present, depending on the facts, when the offense for which a defendant is charged is different from that which defendant was originally suspected of committing.

Here, the officers had probable cause to arrest Camp. Lillis was dispatched to the scene because of a 911 call, reporting suspicious activity by two individuals who appeared to be "going through" an automobile. It was reasonable for Lillis to conclude that Camp's "ratcheting motion" could be consistent with illegal activity as opposed to Camp's explanation that "he was doing work on headlights." Puska's activities in the backseat could reasonably be construed by Lillis as evasive, a relevant factor when assessing probable cause. See State v. Gallagher, 275 N.W.2d 803, 808 (Minn. 1979) (holding that furtive gestures by passenger in defendant's vehicle may, when combined with other observations, provide basis for probable cause to arrest). Lillis was also aware of Camp's previous felony convictions. This is relevant to an officer's probable cause determination. See State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (holding officer's personal knowledge of defendant's previous for felony convictions relevant to determination of probable cause to arrest). During the protective frisk, Lillis also discovered the modified light bulb that he suspected could be connected to some sort of illegal activity. This conclusion was not unreasonable considering Lillis's experience and training as a police officer. See State v. Skoog 351 N.W.2d 380, 381 (Minn. App. 1984) (holding that officer may rely on training and experience to draw inferences and make deductions that might elude untrained person). Also, Peterson's knowledge that light bulbs can be used for controlled substance purposes can be properly imputed to Lillis for the purpose of determining probable cause. See State v. Eling, 355 N.W.2d 286, 290 (Minn. 1984) (holding that Minnesota uses "collective knowledge" approach to probable cause determination and that "pooled knowledge of the entire police department is sufficient to establish probable cause").

In addition, Lillis received information from Peterson that Camp was in possession of methamphetamine. Peterson received this information from a confidential informant. Peterson knew the identity and address of the informant and that the informant had provided accurate information on several occasions in the past. Information received from a confidential reliable informant can be used as factor to establish probable cause. See Munoz, 385 N.W.2d at 376-77 (Noting that informant's tip supported probable cause determination). Although no evidence was presented directly on the issue of the reliability of the informant, the totality of the circumstances corroborates the reliability of the informant. As such, the tip can be used to support a finding of probable cause. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (holding that absent sufficient corroboration, tip from anonymous informant will not support probable cause determination).

Finally, Camp's discussion of whether there is sufficient evidence to conclude that he constructively possessed the methamphetamine is immaterial in the context of determining whether Lillis had probable cause to arrest him. As noted previously, the test for probable cause asks whether a reasonable and prudent person would entertain an honest and strong suspicion that the defendant committed a crime or was engaged in criminal activity. Even though it appears that the flannel shirt in the back seat belonged to Puska, under the circumstances, a reasonable officer could have, at the time of the incident, entertained a reasonable suspicion that Camp was engaged in criminal activity.

Based on the totality of the circumstances and on Lillis's training and experience as a police officer, we conclude that there was sufficient probable cause to arrest Camp. Consequently, the razor blade and light bulb are admissible as evidence discovered incident to a lawful arrest. See Childs, 269 N.W.2d at 28 (evidence of controlled substance crime discovered incident to lawful arrest for suspected shoplifting admissible even though no evidence of theft was obtained).

Affirmed.