State of Minnesota, Appellant, vs. Robert Clare Hageman, Respondent.

State of Minnesota, Appellant, vs. Robert Clare Hageman, Respondent. A05-1766, Court of Appeals Unpublished, February 14, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1766

 

 

State of Minnesota,

Appellant,

 

vs.

 

Robert Clare Hageman,

Respondent.

 

 

Filed February 14, 2006

Affirmed

Huspeni, Judge*

 

 

Dakota County District Court

File No. K5-05-1256

 

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

 

James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

 

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

 

 

            Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

The state appeals from a pretrial order suppressing evidence obtained during a search of an apartment and dismissing a criminal complaint.  Because the dog sniff in this case was not supported by reasonable suspicion of drug-related activity and the search warrant lacked probable cause absent the dog sniff, we affirm.

FACTS

 

An informant gave a tip to the St. Paul Police Department (SPPD) that respondent Robert Clare Hageman and a roommate were selling methamphetamine from their apartment.  The informant also said that the suspects drove a red Crown Victoria car.  The tip information was later obtained by Agent Gelhaye of the South Metro Drug Task Force.  Gelhaye verified where the suspects lived and that a red Crown Victoria was parked outside their building.  He also learned that respondent was reputedly an "increasingly unstable" methamphetamine user who had, according to police reports, threatened to shoot his ex-wife.  Based on this information, Gelhaye conducted a drug-detection sniff with a trained canine in the hallway outside respondent's apartment.  The dog alerted Gelhaye to the presence of narcotics.

Gelhaye included the above information and a recitation of the suspects' criminal histories in his application for a no-knock, nighttime warrant.  The application for the warrant contained no details about the source of the tip other than a statement that the informant's identity was known to St. Paul police.  The warrant was issued and executed.  During the search, respondent was arrested, evidence was seized, and respondent was charged with second-degree controlled-substance crime.

After an omnibus hearing, the district court ruled that the drug sniff was conducted without reasonable suspicion and that, without the drug-sniff results, the warrant was invalid for lack of probable cause.  This appeal followed.

D E C I S I O N

To obtain reversal of a pretrial order suppressing evidence, the state must prove that the district court clearly erred.  State v. Ross, 676 N.W.2d 301, 303 (Minn. App. 2004).  And the state must demonstrate that the suppression will have a critical impact on the outcome of the trial.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  The critical-impact test is satisfied if the complaint was dismissed as a result of the suppression order.  See State v. Burbach, 706 N.W.2d 484, 487 n.1 (Minn. 2005).  The complaint was dismissed in this case, and the parties agree that the critical-impact requirement is fulfilled.  The question before us is whether the district court's rulings contain clear error.

"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

I.          Probable cause absent results of drug sniff

In State v. Carter, the Minnesota Supreme Court, presented with the question of whether a dog sniff outside a self-storage locker is a search under the Fourth Amendment to the United States Constitution or article I, section 10 of the Minnesota Constitution, first addressed whether the search-warrant affidavit established probable cause independent of the dog-sniff results.  697 N.W.2d 199, 204 (2005) ("If there was independent probable cause, we would affirm [the] conviction and save the constitutional questions concerning the dog sniff for another day.").  Consistent with the reservation expressed in Carter, we turn first to an examination of the record to determine whether the district court clearly erred in concluding that probable cause in this case did not exist independent of the dog sniff.

Minnesota has adopted the "totality-of-the-circumstances" test for probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  The warrant-issuing judge must make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity' and ‘basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."  Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).  "Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information."  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  The "reviewing court is not to review each component of the affidavit in isolation but is to view them together."  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quoting State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990)).  "A district court's decision to issue a search warrant is reviewed for ‘whether the issuing judge had a substantial basis for concluding that probable cause existed.'"  Carter, 697 N.W.2d at 205 (quoting State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001)).  A reviewing court should grant significant deference to the issuing judge's probable-cause determination.  Gates, 462 U.S. at 236, 103 S. Ct. at 2331. 

If a search-warrant application relies on an informant's tip, the informant's veracity and basis of knowledge are factors to be considered under the totality-of-the-circumstances test.  Ward, 580 N.W.2d at 71.  And, "Minnesota courts have identified six considerations bearing on the reliability of an informant who is confidential but not anonymous to police."  Id.  

A first-time citizen informant who has not been involved in the criminal underworld is presumed to be reliable, but the affidavit must specifically aver that the informant is not involved in criminal activity.  Similarly, an informant's reliability may be demonstrated where the informant has previously given police correct information, but the affidavit must explicitly state this to be the case. 

 

An informant's reliability may be established by sufficient police corroboration of the information supplied, and corroboration of even minor details can lend credence to the informant's information where the police know the identity of the informant.  Where an informant voluntarily comes forward (without having first been arrested) to identify a suspect, and in the absence of a motive to falsify information, the informant's credibility is enhanced because the informant is presumably aware that he or she could be arrested for making a false report.  In narcotics cases, where the affidavit refers to a "controlled purchase," the magistrate may accept this as a term of art and presume that police searched the informant immediately before and after the alleged drug purchase and conducted surveillance of the purchase to the extent feasible.  

 

Finally, the fact that an informant makes a statement against his or her own penal interest is of some minimal relevance in a totality-of-the-circumstances analysis.

 

Id. (citations and quotations omitted). 

            In this case, the informant was neither someone with a credible track record nor someone a court could presume reliable, as neither was affirmatively stated in the warrant application.  There is no reference to a controlled purchase, nor is there any indication that the informant had no motive to lie or came forward voluntarily.  At best, this informant was simply anonymous; at worst, the informant could be a "grudge-bearer" of dubious credibility.  It must be determined whether police adequately corroborated or verified the information so as to demonstrate the informant's reliability.

Information from an anonymous informant, although verified by police, does not establish credibility if the "information could have been obtained from any one of a number of sources."  State v. Gabbert, 411 N.W.2d 209, 213 (Minn. App. 1987) (finding no increased credibility when the only information subsequently verified by police was that suspect and another person were friends; contrasting Gates, 462 U.S. at 245, 103 S. Ct. at 2335, where independent corroboration of an anonymous informant's "highly detailed" information proved that he had access to inside information and was therefore credible); see also State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (stating that corroboration of an address and ownership of a vehicle did not alone establish informant's credibility or probable cause).    

Wiley, a case relied upon by appellant for the proposition that corroboration of even minor details can lend credence where the informant is known to the police,is clearly distinguishable from this case because the informant in that case was not only known to police, but had a track record of providing reliable information.  366 N.W.2d at 269.  In McCloskey, another case that appellant cites,the informant's willingness to present himself face-to-face to police, combined with his statement against interest, the police officer's corroboration of non-key details such as ownership of the home, the informant's basis of knowledge (personal observation), plus the suspect's previous criminal record, created a "sufficient" basis for probable cause.  453 N.W.2d at 701-02, 704.  

In this case, the assertion in the affidavit that the informant's identity was known to police, combined with corroboration of only the most minor, easily ascertainable details given by the informant, is insufficient to establish that the informant was reliable.  As the above cases demonstrate, when an informant is anonymous or lacks a track record or other indicia of reliability, corroboration of such minor details is not alone sufficient to establish credibility.

Respondent also correctly notes other deficiencies in the affidavit.  "Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant's knowledge."  Wiley, 366 N.W.2d at 269.  There was no information about the informant's basis of knowledge in this case.  Cf. McCloskey,453 N.W.2d at 703 (stating that "basis-of-knowledge" prong would be satisfied by facts showing that informant had not only purchased drugs from defendant but had also been present in house to be searched, viewed what looked like cocaine therein, and had heard defendant refer to the substance as cocaine). 

And, probable cause to search requires a direct connection, or nexus, between the alleged crime and the particular place to be searched.  Souto, 578 N.W.2d at 747.  "Because a stale factual basis may invalidate a search warrant, the affidavit also must supply proof of facts so closely related in time to the issuance of the search warrant as to justify a finding of probable cause at the time."  State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005) (citations omitted).  Here, there was a statement of nexus between the suspected criminal activity and the place to be searched, but the affidavit did not reveal that the information was "fresh."  Although the affidavit explained that Gelhaye had obtained the tip from the SPPD within the month in which the warrant was signed, there is no explanation of when SPPD received the tip from the informant.  Nor is there any indication of when the informant obtained his or her knowledge.  Finally, the affidavit did not contain any evidence of an ongoing criminal enterprise.

The combination of these serious deficiencies regarding the informant's tip denotes a clear lack of probable cause based on the tip and minor corroboration of its details alone.  See Ward, 580 N.W.2d at 72 (stating that even if informant's reliability was not decisively lacking, the reliability information that was "tenuous at best," combined with other "deficiencies in the affidavit" rendered application insufficient to establish probable cause).

Aside from the informant's tip, Gelhaye had learned that appellant had been reported to be a methamphetamine user and that both men had prior (unspecified) felony convictions and arrest records for various offenses, including controlled substances.  Criminal history, while not alone capable of establishing probable cause, has been deemed a proper consideration as one factor in the totality of the circumstances.  State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996).  But reliance on criminal history to establish probable cause is more appropriate when the history is of offenses similar to the currently suspected criminal behavior.  See, e.g., Carter, 697 N.W.2d at 205 (noting that courts "also occasionally consider arrests not resulting in conviction, as when the arrest involves a crime of the same general nature as the one which the warrant is seeking to uncover" (quotation omitted)).  We are unable to conclude, however, that the criminal-history information in this case created probable cause when the tip was clearly lacking in reliability.

Given the failure to demonstrate that the informant was reliable, the absence of any information as to the informant's basis of knowledge, and the failure of the informant's tip to establish a sufficient nexus between the alleged activity and the residence, we conclude that the district court did not clearly err in determining that the search warrant, absent the drug sniff, did not establish probable cause to search. 

II.        Dog sniff in apartment hallway

In Carter, the court recognized that there were important reasons to grant greater privacy protection under the state constitution and concluded that "the sniff of a drug-detection dog outside [the] storage unit was a search for purposes of the Minnesota Constitution."  Id. at 211.  The court held such a search requires the police to articulate reasonable grounds for believing that drugs may be present" rather than probable cause.  Id. at 212.  The court noted that application of the reasonable-suspicion standard to a drug sniff "presents a workable constitutional ‘middle ground' that balances a person's expectation of privacy against the government's interest in using dogs to detect illegal drugs."  Id.at 211-12 (noting that "the government has a significant interest in the use of drug-detection dogs in aid of law enforcement").

A police officer may conduct a limited investigation without violating the constitutional prohibitions on unreasonable searches and seizures if the officer has "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  The factual basis required to support such an intrusion has been described as "minimal."  State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 911 (1975).  But it may not be "the product of mere whim, caprice, or idle curiosity."  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).

The Supreme Court has recognized that an informant's tip insufficient to establish probable cause may be sufficient to justify the lesser intrusion of a limited investigatory stop.  Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924 (1972).  And in Alabama v. White, the Court noted that factors regarding an informant's tip that are relevant in the probable-cause context, including the informant's veracity, reliability, and basis of knowledge, "are also relevant in the reasonable-suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard."  496 U.S. 325, 328-29, 110 S. Ct. 2412, 2415 (1990). 

In the context of an investigative stop, Minnesota courts have required that "an informant's tip must possess sufficient indicia of reliability."  Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000) (quotation omitted).  This inquiry focuses on (1) identifying information given by the informant, and (2) the facts that support the informant's assertion of criminal behavior.  Id.  A tip may be deemed reliable when an informant identifies himself by name or by details sufficient to locate him or her later.  Id. at 921-22. And tips are generally considered reliable when they demonstrate or permit an inference that the tipster gained the information through personal observation.  Id. at 922.

The supreme court has found reasonable suspicion based on a tip from a "CRI," someone who, by definition, had given reliable information in the past.  Munson, 594 N.W.2d at 136.  By contrast, the supreme court held in a recent case that a tip consisting of only a person's name and license plate number and a suspicion that she was involved in drug dealing, where the state had not "attempted to establish the tip's origins, how old [it] was, or whether [it] was substantiated," and had provided no other method of evaluating its reliability, was insufficient, when combined with the suspect's nervous demeanor and suspicious driving behavior when pulled over, to establish reasonable, articulable suspicion to expand a traffic stop.  Burbach, 706 N.W.2d at 490-91. 

White also evaluated whether reasonable suspicion existed based on an unknown informant's tip.  The tip in that case, like the tip in the case before us, provided "virtually nothing from which one might conclude that [the caller] is either honest or his information reliable," White, 496 U.S. at 329, 110 S. Ct. at 2415 (alteration in original) (quotation omitted), and that gave "absolutely no indication of the basis" of the caller's knowledge.  White, 496 U.S. at 330, 110 S. Ct. at 2415.  The court noted that such a tip, "standing alone, would not warrant a man of reasonable caution in the belief that [an intrusion] was appropriate."  Id.at 229, 110 S. Ct. at 2416 (quotation omitted).  In White, the requisite reasonable suspicion was present only because the tip "contained a range of details relating not just to easily obtained facts and conditions . . . but to future actions of third parties ordinarily not easily predicted."  Id. at 332, 110 S. Ct. at 2417. 

Here, although the tip was from an informant said to be "known" to the police, as discussed above there was no information about the informant's reliability or how the informant obtained his or her information.  And the only corroboration was of the suspects' address and that a car matching the description given was parked in front of their building.  This is the type of prediction that White stated would not establish reasonable suspicion. 

Absent this insubstantial tip, the only other information available to Agent Gelhaye was an allegation from a completely unidentified person or persons that appellant was a methamphetamine user.  Nothing in the affidavit explained where or how that information was obtained.  In the absence of any facts regarding who made the allegation or on what basis, the statement that respondent was a violent drug user must also be treated as coming from an unknown informant with an unclear basis of knowledge and does not create the requisite reasonable suspicion.  We find no error in the district court's determination that the dog sniff was conducted without reasonable articulable suspicion.[1]

Affirmed.

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

[1] Respondent suggests that this court should rule that the dog sniff in this case required probable cause.  Because the record demonstrates that respondent did not litigate this issue in the district court, it is not properly before us for decision.  See Roby v. State, 547 N.W.2d 354, 347 (Minn. 1996) (stating that rule prohibiting consideration of issues "which were not raised before the district court, including constitutional questions regarding criminal procedure.").