State of Minnesota, Appellant, vs. Vieta Ercel Crutcher, Respondent (A03-1647), Belinda Marie Walker, Respondent (A03-1648).

This opinion will be unpublished and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

A03-1647

A03-1648

State of Minnesota,

Appellant,

vs.

Vieta Ercel Crutcher,

Respondent (A03-1647),

Belinda Marie Walker,

Respondent (A03-1648).

Filed July 6, 2004

Reversed and remanded

Lansing, Judge

St. Louis County District Court

File No. K4-02-601252

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

Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, #501, 100 North Fifth Avenue West, Duluth, MN  55802-1298 (for appellant)

Mark D. Nyvold, Suite W1610, 332 Minnesota Street, St. Paul, MN  55101 (for respondents)

            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge     

            The state appeals a pretrial order suppressing evidence and dismissing charges of first-degree controlled-substance crime against Vieta Crutcher and Belinda Walker.  The district court held that an informant's tip provided insufficient constitutional justification for the investigatory automobile stop that led to the seizure of a controlled substance.  Because the informant's tip provided a specific and articulable basis for the stop, we reverse the suppression order and the dismissal and remand for determination of the alternative claims that the search was nonconsensual and that the statements to police were involuntary.

F A C T S

            Acting on a tip from a confidential reliable informant, two officers of the Duluth Police Department stopped a blue Cadillac proceeding north on I-35 in Duluth about 7:00 p.m. on September 23, 2002.  One of the officers had received information earlier that day that Vieta Crutcher and Belinda Walker were on their way back to Duluth from Minneapolis and were transporting crack cocaine.  The informant described their car as a blue four-door Cadillac and said they would arrive in Duluth around 7:00 p.m.  The informant also mentioned Walker's nickname and said that Walker had driven the blue Cadillac at other times.  The officer knew Vieta Crutcher but did not know Belinda Walker.  After talking with the informant, the officer obtained Walker's full name, date of birth, and physical description from her driver's record.

            The officer had known the informant for more than a year and a half and knew the informant's name.  The informant had, at least twelve times in the past, provided confidential information to the officer that had been corroborated.  The officer considered the informant reliable; previous information provided by the informant had led to at least two felony arrests and convictions.

The officer and his partner parked their squad in the median of I-35 just north of Highway 2 within the Duluth city limits shortly before 7:00 p.m. to watch for the Cadillac.  In a radio communication, two Duluth officers driving slightly south of the surveillance location, alerted the surveilling officers that a blue Cadillac was proceeding north on I-35.  When the Cadillac passed the parked squad, the officers could see two African-American women in the front seat.  The officer who knew Crutcher recognized her as the front-seat passenger.  The Cadillac driver matched the physical description of Walker that the officer had obtained from her driver's record. 

            The officers activated their emergency lights and stopped the car.  In a police-taped conversation, one of the officers told Walker that she was free to leave, asked permission to search, and told her that "cooperation would go a long way."  After the officer asked Walker at least twice if she had crack cocaine, she admitted that she did and produced a plastic bag containing a chunk of white substance that proved to be 13.1 grams of cocaine.  Crutcher was also asked if she would consent to a search.  She agreed, and police obtained a "stem" or crack pipe from her pocket.  In taped interviews at police headquarters, Crutcher and Walker admitted their purpose was to transport cocaine from Minneapolis for sale in Duluth.

            The state charged Crutcher and Walker as accomplices in committing first-degree controlled-substance crime (possession with intent to sell cocaine) under Minn. Stat. § 152.021, subds. 1(1), 3 (2002) and Minn. Stat. § 609.05 (2002).  The cases were consolidated for trial.  At a contested omnibus hearing, Crutcher and Walker challenged the legality of the stop and the existence of probable cause.  Walker also challenged the consensual basis for the search and the voluntariness of statements she made to the police. 

The district court, applying a probable cause standard, held that the stop was illegal, suppressed the evidence seized as a result of the stop, and dismissed the charges.  Having found that the stop was illegal, the district court specifically declined to address whether the evidence was seized in a consensual search or whether Walker's statements were voluntary.  The state appeals the suppression order and the dismissal of the charges.

D E C I S I O N

            To obtain reversal of a pretrial suppression order, the state must show that the district court clearly erred in its judgment and that the error will have a critical impact on the state's case.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  The critical impact is established by the district court's dismissing the charges as a result of the suppression order.  The legality of the seizure is a question of law, which we review de novo.  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10; Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1446 (1960); State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996).  A brief investigatory stop by police is constitutionally permissible if it is supported by a reasonable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968).  Such an investigatory seizure is lawful "if the state can show the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).

The district court held that the stop of Walker's car was constitutionally invalid because the officers lacked probable cause.  The deficiency that the court identified was the state's failure to show the basis for the informant's knowledge as required in State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000), review denied (Minn. July 25, 2000).  But Cook did not address the quantity or content of an informant's tip necessary to justify the investigatory stop of a car; Cook addressed the sufficiency of an informant's tip to justify the warrantless search of a defendant's person.  Id.  The state is not relying on the informant's tip as a basis for searching Crutcher or Walker.  The state asserts, instead, that the drugs and drug paraphernalia were obtained in consensual searches.  See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973); State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998) (referring to consent as well-established exception to rule requiring warrant and probable cause to conduct search).  The only issue in this appeal is whether the stop of the car was constitutionally valid.

The standard of reasonable suspicion that is required for an investigatory stop does not equate to the probable cause requirement to conduct a search.  Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990).  The issue in White was whether an anonymous telephone tip, corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion for an investigatory stop of the defendant's vehicle.  Id. at 330-31, 110 S. Ct. at 2416-17.  In concluding that the tip did provide reasonable suspicion for an investigatory stop, the Court stated that "reasonable suspicion can be established with information that is different in quantity or content . . . [and] less reliable than that required to show probable cause."  Id. at 330, 110 S. Ct. at 2416.  In Cook the court similarly observed that despite the absence of probable cause, the police may have had reasonable suspicion to legally stop and question the defendant.  Cook, 610 N.W.2d at 669.

In weighing whether an informant's tip provides an adequate basis for a stop, a reviewing court considers the quantity and quality of the informant's report, as well as the officer's independent verification of details in the report.  White, 496 U.S. at 331-32, 110 S. Ct. at 2416-17.  In a totality-of-the-circumstances analysis, the quantity and quality of the information are weighed together so that "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable."  Id. at 330, 110 S. Ct. at 2416.

The police had no independent verification of the informant's statement that Crutcher and Walker would be transporting drugs in their car, but the information had other indicia of reliability.  The officer who initiated the stop of Walker's car had known the informant for more than a year and a half, knew the informant's name, and had prior experience with the informant, including receiving information more than a dozen times that was corroborated and that led to at least two felony charges and convictions.  Importantly, the informant was able to predict Crutcher and Walker's future behavior, a significant factor in assessing reliability.  See id. at 332, 110 S. Ct. at 2417 ("Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities.").  Consistent with the informant's tip, the police observed a blue four-door Cadillac with two African-American women in the front seat, arriving in Duluth on the main route from Minneapolis precisely at the time the informant predicted.  And the officer who had spoken with the informant three times that afternoon was able, from his own knowledge, to identify Crutcher as the person in the passenger seat.  The police had sufficient reasonable articulable suspicion to effect the stop, and we reverse the district court's order suppressing the evidence and dismissing the charges. 

The district court also concluded that the lack of a search warrant "doom[ed] the stop and subsequent request for a search."  But this overlooks the state's consistent position that the evidence was produced as the result of a consensual search, a valid exception to the warrant requirement.  The district court did not make findings on the validity of the consent underlying the search or the voluntariness of the statements made to police.  Because we reverse the district court's order invalidating the stop, we remand these remaining issues to the district court for further consideration. 

            Reversed and remanded.