State of Minnesota, Respondent, vs. Thomas (NMN) Wilson, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1423 CX-97-1424

State of Minnesota,

Respondent,

vs.

Thomas (NMN) Wilson,

Appellant.

Filed April 21, 1998

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K3953913

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

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

Clayton M. Robinson, Jr., First National Bank Building, 332 Minnesota Street, Suite East 1401, St. Paul, MN 55101 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mulally, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

LANSING, Judge

This appeal from first and second degree controlled-substance convictions challenges the constitutionality of a police search and seizure, the admissibility of custodial statements, the validity of a search warrant, and the sufficiency of the evidence on the first degree conviction. Because we reject the constitutional claims and conclude the evidence is sufficient to support the first degree controlled-substance conviction, we affirm.

FACTS

Thomas Wilson was convicted on two separate charges of possession of cocaine. The first charge involved 9.4 ounces of cocaine obtained from a search of Wilson's person during an automobile stop. The second charge involved in excess of 150 grams of cocaine obtained three weeks later from a search of Wilson's residence.

Before trial Wilson challenged the admissibility of statements made to the police and evidence obtained during a series of searches. In separate omnibus rulings, the district court granted Wilson's motions to suppress inculpatory statements made during the automobile stop and search warrant execution, but denied his motion to suppress Wilson's police station statement. The court also denied Wilson's motions to suppress the evidence obtained in the searches.

Wilson and the state submitted both charges to the district court for decision on stipulated facts. The court found Wilson guilty of a second degree controlled-substance violation under Minn. Stat. § 152.022, subds. 1(1) and 3(a), for the cocaine recovered from his person and a first degree controlled-substance violation under Minn. Stat. § 152.021, subds. (a)(1) and 3(a), for the cocaine retrieved from his residence. Wilson appeals from the convictions, challenging the (1) constitutionality of the auto and personal searches, (2) admissibility of his statements at the police station, (3) validity of the search warrant for his residence, and (4) sufficiency of the evidence to support the conviction for first degree possession.

D E C I S I O N

I

For an investigatory stop to be lawful, a police officer must have a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). An informant's tip may be adequate to support an investigative stop if it has sufficient indicia of reliability. Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923-24 (1972); State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980). When reviewing the legality of a seizure or search, an appellate court will not reverse the district court's factual findings unless they are clearly erroneous or contrary to law, but we review de novo whether the facts are sufficient to meet the standard. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citing State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).

The state's witnesses testified that the initial report on Wilson's alleged drug dealing was provided by a confidential reliable informant (CRI) with a history of providing correct, current information. The CRI observed Wilson with drugs and provided Officer Patrick Lyttle with a detailed physical description, as well as the first name "Thomas," and the color, model, and license number of his car. The CRI told Lyttle that "Thomas" sold cocaine at the Badger Bar and Willard's Bar and used his white Bronco to transport it between the two bars. The CRI also claimed "Thomas" hid cocaine in the front of his pants.

Information about an ongoing offense from a CRI with a history of providing reliable information can provide a basis for an investigatory stop. See Adams, 407 U.S. at 146-47, 92 St. Ct. at 1923-24 (when credible police informant warns of specific impending crime, subtleties of hearsay rule should not thwart appropriate police response); State v. Pealer, 488 N.W.2d 3, 5 (Minn. App. 1992) (tip from known confidential informant on possible drunk driver sufficient to support investigatory stop when tip included vehicle description, driver's last name, and vehicle's location). The CRI's information was augmented by Lyttle's observation of the Bronco outside the Badger Bar just 30 minutes after receiving the tip. The CRI's information, the fact that the Bronco was parked outside the bar, and Lyttle's independent knowledge that both bars were sites for drug trafficking provided more than an adequate basis for the stop of the Bronco. See G.M., 560 N.W.2d at 691-92 (unknown informant's tip that certain individuals possessed cocaine, coupled with agent's observations, provided reasonable suspicion of criminal activity).

Wilson contends that even if the stop can be justified, the police violated his constitutional rights in the subsequent search. Specifically, Wilson argues that as a matter of law the search of his person and vehicle could not have been voluntary.

The state bears the burden of establishing the voluntariness of a consent to search Wilson's person and vehicle. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973); State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Voluntariness is a fact question determined on the totality of the circumstances, subject to reversal only when clearly erroneous. Dezso, 512 N.W.2d at 880; State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).

At the omnibus hearing, Officer David Boll testified that after stopping the Bronco, he told Wilson that he was suspected of dealing large quantities of narcotics. According to Boll, he asked Wilson if he would mind being searched for drugs, and Wilson raised his hands and said "go ahead." The search yielded two pagers and more than $2,000 in cash. Boll then asked to search the Bronco for drugs, and Wilson again said "go ahead," or words to that effect. In that search officers found another pager and a cell phone. The district court accepted this testimony as credible. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (credibility of witness testimony and weight given evidence are issues for trier of fact).

Wilson's argument that any consent was involuntary because he was in the back of the police car could apply only to the final search with a narcotics dog. But any lack of voluntariness at that point does not invalidate Wilson's prior consent to the auto search. Compare State v. Bell, 557 N.W.2d 603, 607-08 (Minn. App. 1996) (finding defendant did not voluntarily consent to auto search after being frisked and placed in the back of squad car). In Bell, police officers asked for consent immediately after issuing a warning ticket, the squad-car doors were locked from the outside, and there was no reasonable articulable suspicion to support the search. Id. at 607-08. The procedures in Bell vary significantly from the procedures used by the officers who stopped Wilson. The police had information from a confidential, reliable informant of a possible narcotics offense, and Wilson voluntarily consented to an auto search before being placed in the squad car. Once Wilson consented to the car search, the officers did not need his consent to continue the search with the narcotics dog.

Wilson also objects to the second search of his person that yielded a baggie with 9.4 grams of cocaine. The district court found Wilson was "arrested" after the narcotics dog gave a positive indication for drugs in the vehicle. Consequently, the search of Wilson's person was incident to his arrest. See G.M., 560 N.W.2d at 695 (police who have probable cause to arrest a suspect can conduct a warrantless search incident to arrest) (citations omitted). We reject Wilson's argument that an arrest at that point lacked sufficient probable cause. Wilson matched the CRI's description. He was a 6'3" black male with a large build, named "Thomas;" he drove a white Bronco with the license 855 JON; the Bronco was observed outside the Badger Bar; he was stopped in the vicinity of both bars identified by the CRI; he had over $2,000 in cash and two pagers on his person, both actively receiving calls; and the narcotics dog positively indicated that drugs were in the area of the Bronco. These factors, together with the CRI's information, provided probable cause to the officers to arrest Wilson and search him to determine the accuracy of the last part of the CRI's report -- that Wilson carried drugs in the front of his pants. Draper v. United States, 358 U.S. 307, 312-14, 79 S. Ct. 329, 333 (1959); see G.M., 560 N.W.2d at 695 (probable cause for arrest exists when objective facts demonstrate that person of ordinary care and prudence would have "a strong suspicion" that specific crime committed by suspect).

II

Wilson contends that the district court erred in denying his motion to suppress statements made at the police station the day after his arrest. A custodial interrogation of a suspect must be preceded by the giving of an advisory warning of his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 467-68, 473, 86 S. Ct. 1602, 1624-27 (1966). If the suspect invokes the right to counsel, the interrogation must cease until an attorney is present. Id. Officers may approach a suspect who has refused to talk and ask him to reconsider, so long as the urging to reconsider is not "compulsive" and respects the suspect's asserted right to remain silent. State v. Thieman, 439 N.W.2d. 1, 5 (Minn. 1989) (citing State v. O'Neill, 299 Minn. 60, 71, 216 N.W.2d 822, 829 (1974)).

Statements obtained after the suspect exercises his right to remain silent are admissible so long as officers "scrupulously honor" his right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326 (1975); State v. Pierce, 364 N.W.2d 801, 805-06 (Minn. 1985). If a suspect participates in more than one interview, officers do not have to readminister Miranda warnings. State v. Andrews, 388 N.W.2d 723, 731 (Minn. 1986). However, the suspect must be fully aware of the meaning or seriousness of the subsequent interrogation or his confession will be rendered involuntary. Id.

Wilson claims police violated his Fifth Amendment rights by failing to give a new Miranda warning the morning after his arrest. Assuming Wilson invoked his Miranda rights the day before when he told Lyttle he did not want to be interviewed while the tape recorder was running, his request was "scrupulously honored." Lyttle immediately terminated that interview, turned off the recorder, and told Wilson that another investigator would talk to him the next morning. Although the officer who talked to him the next morning did not administer a new warning when resuming questioning, the officer advised Wilson that his Miranda rights were still in effect and he conducted the interview in a formal setting. There is no evidence that Wilson did not understand the seriousness of the second interrogation or that his decision to talk was involuntary. Andrews, 388 N.W.2d at 731.

We also reject Wilson's claim that the record shows his statement was not voluntary. Wilson's age, education, and experience within the criminal justice system support the voluntariness of his statement. See State v. Thaggard, 527 N.W.2d 804, 808 (Minn. 1995) (listing factors relevant to determining whether confession voluntary). The only factor that cuts against the voluntariness of his statement is that the interview was taped despite Wilson's previous refusal to talk when a tape was running. Even if we accepted Wilson's contention that he was intentionally deceived about the recording, "the use of false information does not itself render a confession inadmissible." State v. Jones, 566 N.W.2d 317, 326 (Minn. 1997). The test is "whether the deceit is the kind that would make an innocent person confess." Id. The use of trickery and deception is to be considered along with all other relevant factors in determining if a confession was involuntary. Thaggard, 526 N.W.2d at 810-11. Taping an interview is not the type of deceit that would make an innocent person confess. Moreover, the police taping of custodial interviews is required by State v. Scales, 518 N.W.2d 587, 592 (1994) (electronic recording required when police question a suspect at a place of detention.) The district court did not err in determining Wilson made a knowing and intelligent waiver of his Miranda rights and voluntarily confessed.

III

Wilson argues that the search warrant issued for his residence was tainted by illegally obtained evidence. Because Wilson failed to raise any aspect of the "tainted warrant" doctrine during the omnibus hearings, the issue is not preserved under State v. Leiberg, 553 N.W.2d 51, 57-58 (Minn. App. 1996). Even if the issue had been preserved, our affirmance of the earlier search and seizure dispels any claim of tainted illegality.

Whether probable cause exists for the issuance of a search warrant is determined under a "totality of the circumstances" test. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (adopting test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). The issuing magistrate must make a "practical, common-sense decision" whether there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Wiley, 366 N.W.2d at 268 (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). The magistrate must consider all circumstances in the affidavit, including the veracity and basis of knowledge of the individuals who provide hearsay information. Id. Because appellate courts must give great deference to a magistrate's determination, our review is limited to determining whether there was a substantial basis for finding probable cause based on all components. Id.

Wilson challenges the reliability of the information provided by the "concerned citizen" because no one except his wife and child had been in his home during the 24-hour period before the issuance of the December 2, 1995, search warrant. The credibility of a first-time citizen informer is generally presumed. State v. Seigfried, 274 N.W.2d 113, 115 (Minn. 1978). Whether information provided by an anonymous first-time citizen informer justifies reliance on this presumption is a closer question. Id.

Viewing the affidavit as a whole, we believe the magistrate correctly determined that probable cause existed. Although the affidavit does not identify the "concerned citizen," it contains the citizen's detailed, first-hand observations of Wilson's drug possession during the previous 24-hour period. The concerned citizen's name, address, and place of employment were known to the affiant. Under these circumstances, the "concerned citizen," whose name was not revealed to the magistrate, may be presumed reliable. See id. (noting that affidavit from citizen informer who refuses to use his name should include averment that the affiant supplied his/her name, address, phone number, and occupation). Moreover, the information provided by the informant was consistent with or verified by independent investigation and Wilson's own statements. See id. at 116 (affidavit "contained sufficient information to justify reliance on the primary informant's tip and that tip provided probable cause to search"). We also note that the fear of retributory bodily harm provided an adequate basis for anonymity. See State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (information from anonymous informant provided sufficient corroboration where he/she met with sheriff twice, had a good reason for wanting anonymity due to fear of retribution, and had good reason for wanting to see defendant prosecuted).

IV

In reviewing the sufficiency of the evidence, this court is limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, the district court as the trier of fact could reasonably conclude that the defendant was guilty of the charged offense. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). This court cannot retry the facts, but must view the evidence in the light most favorable to the state and must assume the district court believed the state's witnesses and disbelieved any contradictory evidence. Id. If the district court, giving due regard to the presumption of innocence and the state's burden of proof, could reasonably have found Wilson guilty, its judgment should not be reversed.

Under Minn. Stat. § 152.021, a person is guilty of a controlled substance crime in the first degree if he or she unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing cocaine. Minn. Stat. § 152.021, subd. 2(1) (1996). Wilson submitted his case on stipulated facts that included the police reports and transcripts. It is not disputed that the search yielded six baggies of cocaine with a combined weight in excess of 150 grams. Thus, the issue is whether Wilson knowingly possessed the cocaine.

To prove knowing possession of the cocaine, the state was required to show that (1) the defendant consciously possessed the drug, either physically or constructively; and (2) the defendant had actual knowledge of the nature of the substance. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (citing LaFave & Scott, CRIMINAL LAW § 25, p. 182). Because the officers discovered the cocaine in a common area of Wilson's home, the state had to establish a strong probability (inferable from other evidence) that Wilson consciously exercised dominion and control over the drug up to the time of the arrest. Id.

The following evidence was sufficient to prove constructive possession: (1) Officer Lyttle saw Wilson leave the premises while the other officers prepared to execute the warrant; (2) Wilson was the only person on the premises at the time, which gives rise to an inference that he had been exercising dominion and control over the cocaine; and (3) Wilson told Officer Lyttle the exact location of the cocaine, which was hidden inside a child's toy. While Wilson's statement about the toy was not admissible as direct evidence because he had not received a Miranda warning, it is admissible to impeach Wilson's claim that he did not know there were any drugs on the premises. See Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 646 (1971) (Miranda does not preclude use of such statements for impeachment so long as they are voluntary and trustworthy); State v. Clark, 296 N.W.2d 359, 367 (Minn. 1980) (same) (citations omitted).

Affirmed.