State of Minnesota, Respondent, vs. Kimberly A. Ekstrand, Appellant.

This opinion will be unpublished and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

C4-03-246

 

State of Minnesota,

Respondent,

 

vs.

 

Kimberly A. Ekstrand,

Appellant.

 

Filed ­­­December 2, 2003

Affirmed

Harten, Judge

 

Isanti County District Court

File No. K4-01-31

 

John M. Stuart, State Public Defender, Davi Elstan Forte Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008; and

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

            Appellant challenges her conviction of first-degree controlled substance crime (possession), arguing that police illegally expanded the scope of a traffic stop and that, without the evidence obtained at the traffic stop, the search warrant application did not provide probable cause to search appellant's residence.  We affirm.

FACTS

            In December 2000, a confidential reliable informant (CRI) contacted a police detective and stated that appellant Kimberly Ann Ekstrand was distributing large amounts of methamphetamine.  The detective had been working with this CRI for approximately one year and all the information previously provided was reliable and accurate.  The detective corroborated the information about appellant with another detective, who had heard from other informants that appellant was distributing methamphetamine.

            The detective conducted surveillance at appellant's trailer house for roughly three months, making spot checks and watching the trailer house for two or three hours at a time.  He saw several cars arrive at appellant's trailer house and stay for short periods, consistent with the sale of narcotics.

            On 19 March 2001, at approximately 10:00 p.m., the CRI told the detective that appellant had recently received a large quantity of methamphetamine and was storing it in her trailer house.  The CRI also said that appellant brought drugs to work.  The detective and other officers planned surveillance of appellant early the next morning, intending to apprehend her only if she broke any major traffic laws.

One officer contacted appellant's place of employment and discovered that her shift began at 5:00 a.m.  But at 5:00 the next morning, appellant's trailer house was dark and her car was outside.  Between 5:30 and 5:45, appellant rushed out, threw something into her car, and quickly drove away.  An officer followed appellant onto a highway.  He had difficulty keeping up with her because she was traveling faster than the flow of traffic and the posted speed limits; her car also zigzagged in and out of lanes.  The officer described appellant's driving as "very reckless, careless."

            Eventually, a deputy sheriff stopped appellant.  When the detective arrived at the scene, he immediately told appellant that she had been stopped for reckless driving and to investigate her possible possession of narcotics.

            Appellant denied possession of narcotics and handed her bag to the detective so he could search it.  The bag was found to contain a small amount of marijuana.  The detective asked appellant to consent to the search of her car.  She initially consented, but then said that she wanted to talk to an attorney.  The detective told her that the car would not be searched and called for a K-9 unit.

            When the K-9 unit arrived, the dog sniffed the outside of appellant's car, became aggressive toward the front passenger side, and attempted to jump inside the car.  Based on probable cause resulting from the K-9 unit's "hit," an officer searched the interior of appellant's car.  Inside the glove compartment, officers found a glass pipe containing a white substance that field-tested positive for methamphetamine.  Appellant was arrested and her car was impounded and towed.

            Appellant's trailer house was searched after a warrant had been obtained; a large amount of methamphetamine and some marijuana were found inside a clothes dryer.  Appellant was charged with first-degree controlled substance crime (possession).

             Appellant moved to suppress evidence obtained from the searches of her car and trailer house.  The district court denied both motions, concluding that the stop of the car was justified by reasonable articulable suspicion, the search of the car was supported by probable cause, and the search warrant contained sufficient probable cause to search appellant's trailer house.  Appellant waived her right to a jury trial and submitted the matter to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).  Appellant was found guilty of first-degree controlled substance crime; the district court sentenced her to 105 months, the low end of the presumptive range.

            Appellant challenges her conviction, arguing that the evidence obtained from the searches of her car and trailer house should have been suppressed.

D E C I S I O N

1.         Search of Car

            When reviewing pretrial orders on motions to suppress evidence, appellate courts may independently review the facts and determine, 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).  The legality of a limited investigative stop and questions of reasonable suspicion are reviewed de novo.  State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003) (citing State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999)).

            Officers may generally conduct investigative stops so long as they have a particularized basis for suspecting criminal activity.  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999).  "[T]he scope and duration of a traffic stop investigation must be limited to the justification for the stop."  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  Under both the Fourth Amendment and the Minnesota Constitution, any expansion of the scope or duration of an investigative stop is proper only where the officers have a reasonable articulable suspicion of other criminal activity.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (Fourth Amendment); Fort, 660 N.W.2d at 419 (Minnesota Constitution).

            Appellant concedes that the traffic stop was proper to investigate her reckless driving and speeding violations, but argues that the investigation of narcotics possession exceeded the scope of the stop.  But, as the detective told appellant when she was stopped, one purpose of the stop was to investigate possible possession of methamphetamine.  Therefore, the investigation into appellant's possible possession of methamphetamine did not exceed the purpose of the stop.[1]

            Moreover, the officers' reasonable suspicion that appellant possessed methamphetamine justified both the stop and any expansion of its scope.  The CRI had reported that appellant had been distributing large amounts of methamphetamine; the tip was corroborated by information from other detectives.  During surveillance, the detective had noticed several cars arrive at appellant's residence and stay for only short periods of time, consistent with controlled substance distribution.  The night before the stop, the CRI had notified the detective that appellant was storing a large quantity of methamphetamine and would take methamphetamine with her to work.  The CRI had provided reliable and accurate information to the detective over the preceding year.  See State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980) (informant's tip with sufficient indicia of reliability may provide reasonable suspicion to justify an investigative stop).

            Appellant argues that the CRI failed to provide an adequate basis of knowledge, and therefore the tip was unreliable.  But reasonable suspicion is determined by examining the totality of the circumstances.  Syhavong, 661 N.W.2d at 281.  The totality of the circumstances analysis permits "a balanced assessment of the relative weights of all the various indicia of reliability" of an informant's tip.  Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330 (1983) (failure of an informant with a track record of providing reliable and accurate information to set forth the basis of his knowledge is not fatal to a determination of probable cause); Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924 (1972) (informant's tip that is insufficient to establish probable cause may carry enough indicia of reliability to justify an investigative stop).

We conclude that the evidence obtained during the search of appellant's car was lawfully admitted into evidence.

2.         Trailer House Search

            Reviewing courts should afford great deference to a magistrate's determination of probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  Appellate courts review the issue of whether there is probable cause to support a search warrant by determining whether there is a substantial basis for the search.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  Substantial basis in this context means a "fair probability," given the totality of the circumstances, "that contraband or evidence of a crime will be found in a particular place."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).

            Appellant argues that without the information obtained during the search of her car, the search warrant application would lack probable cause to justify the search of her trailer house.  Because we have determined that the evidence obtained at the traffic stop was properly admitted, we need not address this issue.  We conclude that the search warrant application contained probable cause to search appellant's residence and that the evidence obtained was properly admitted.[2]

            Affirmed.

[1] Appellant's reliance on State v. Wiegand, State v. Miller, and State v. Fort is misplaced because all are distinguishable.  See Wiegand, 645 N.W.2d at 128-29 (stopped for burned-out headlight and officer testified that he did not suspect drug use before asking if there were narcotics in the car and conducting a K-9 sniff of the car's exterior); State v. Miller, 659 N.W.2d 275, 279-80 (Minn. App. 2003) (officer was instructed to find "any legal reason" to stop car and district court did not believe the officer's testimony about defendant's condition), review denied (Minn. 15 July 2003); Fort, 660 N.W.2d at 417-19 (during stop for cracked windshield in a "high drug" area, defendant seemed nervous and officer asked him about any drugs or weapons in the car).

[2] In her pro se supplemental brief, appellant makes three factual allegations.  But because nothing in the record supports these assertions and appellant cites to no legal authority that would provide her relief, any associated claims are unavailing.  See State v. Krosch, 642 N.W.2d 713, 719-20 (Minn. 2002) (deeming issues raised in supplemental brief waived where there was no argument or citation to legal authorities).