This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-669

 

 

State of Minnesota,

Respondent,

 

vs.

 

James NMN Spencer,

Appellant.

 

Filed March 25, 2003

Affirmed

Lansing, Judge

 

Dakota County District Court

File No. K2992788

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN† 55103; and

 

James Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN† 55033-2392 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN† 55414-3230 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

U N P U B L I S H E D†† O P I N I O N

 

LANSING, Judge

 

A jury found James Spencer guilty of second-degree controlled substance crime, and the district court imposed the presumptive sentence.† In this appeal from conviction and sentencing, Spencer challenges the stop and search of his car, the admission of Spreigl evidence, and the district courtís refusal to depart downward in sentencing.† Because the district court did not misapply the law or abuse its discretion, we affirm.

F A C T S

Burnsville police officers arrested James Spencer after a search of his car produced crack cocaine.† A police sergeant working with the South Metro Drug Task Force had received information on the day of the arrest from a confidential reliable informant (CRI) that a person distributing cocaine would be at the Perkins restaurant near Burnsville Parkway at about 7:00 p.m. to sell $900 worth of cocaine, approximately three-quarters of an ounce.† The CRI described the person as a black male in his mid-to-late-twenties, five-feet nine-inches to five-feet ten-inches tall, with a medium build, driving a light-blue Buick with distinctive gold and silver wheel rims.† The CRI said the man used the street name ďBlackĒ and provided Blackís cell-phone number.

At about 6:40 p.m. the Burnsville police department set up surveillance of the Perkins parking lot.† When no one matching the description had arrived by 7:30, the police sergeant contacted the CRI by phone and learned that Black had missed the interstate exit but had been given directions on how to get to Perkins.† Fifteen minutes later, the sergeant saw a light-blue Buick with distinctive wheel rims drive past.† Another officer stationed west of the Perkins lot saw a black male, who appeared to be in his early twenties, leave the parked Buick; go into the restaurant; come out of the restaurant within a minute; look around as if trying to located someone; and return to the Buick, which had been left running.

The officers approached the Buick, asked the driver and his passenger to step out of the car, and performed a pat-down search.† The sergeant looked into the driverís side of the car and saw, in plain view, a small amount of marijuana on the center of the front seat.† Another officer saw a small plastic bag on the floorboard of the car between the front passenger seat and the passenger door.† The bag contained seven grams of a substance later identified as crack cocaine.† In a search of the glove compartment officers found $417 in cash and a small amount of marijuana.† The driver, identified as James Spencer, told the police that he had gone into the restaurant to use the bathroom.† He admitted that the marijuana belonged to him but denied knowledge of the cocaine.

The state charged Spencer with second-degree controlled-substance crime and possession of a small amount of marijuana.† In support of a defense motion to suppress the drugs found in Spencerís car, Spencer and the state stipulated to the submission of three police reports and the drug analysis from the Minnesota Department of Health.† The district court denied the motion.† The district court granted the stateís motion in limine to admit Spreigl evidence of three previous controlled-substance crimes.

The jury found Spencer guilty, and the district court sentenced him to the presumptive sixty-eight-month sentence for the second-degree controlled-substance offense.† Spencer appeals, challenging the district courtís (1) denial of his motion to suppress evidence obtained from his car, (2) admission of Spreigl evidence, and (3) refusal to depart downward from the presumptive sentence.

D E C I S I O N

I

Spencer contends that the investigatory stop and subsequent search of his car were unlawful because the CRI did not provide information with which to evaluate the basis of his knowledge or his reliability.† We review de novo the district courtís determinations of reasonable suspicion as it relates to limited investigatory stops conducted under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and probable cause as it relates to warrantless searches.† State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).

For an investigatory stop to be lawful, a police officer must have a ďparticularized and objective basis for suspecting the particular person stopped of criminal activity.Ē† 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)).† Warrantless searches are per se unreasonable, subject to specific, well-delineated exceptions.† Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).† Under the automobile exception, the police may conduct a warrantless search of an automobile when they have probable cause to believe that the car contains evidence of a crime or contraband.† State v. Search, 472 N.W.2d 850, 853 (Minn. 1991).† Police may, however, seize an item in plain view if they had a prior justification for an intrusion and inadvertently come across a piece of incriminating evidence.† Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038 (1971).†

††††††††††† Probable cause to search an automobile may be established through information from a confidential reliable informant depending on the totality of the circumstances, including the credibility and veracity of the informant.† Munson, 594 N.W.2d at 136. When the police rely on such information, ďall of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis.Ē† State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).A proven track record is one of the primary indicia of an informantís veracity.† Munson, 594 N.W.2d at 136; see also Wayne R. LaFave, Search and Seizure, ß 3.3(b), at 110-11 (3rd ed. 1996) (discussing indicia of informant reliability). The issuing court also considers the basis of the informantís knowledge.† State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).† This basis of knowledge may be supplied directly, as when an informant purchases drugs from a suspect, or indirectly, as when the informantís information contains self-verifying details allowing an inference that the information was gained in a reliable fashion and was not just based on a suspectís reputation.† Independent corroboration of details supplied by the informant can also lend credence to an informantís tip.† Id. at 269.†

††††††††††† The complaint charging Spencer with the offenses stated that the CRI had provided accurate and reliable information to law enforcement officials in the past.† Although Spencer does not contest the truth of this statement, he argues that the facts stipulated by the parties include only the police reports, not the complaint.† The district court, however, found specifically that the record consisted of both the complaint and the police reports.† We conclude that the complaint, as a paper filed with the district court, constitutes part of the record.† See, e.g., State v. Joseph, 636 N.W.2d 322, 328 (Minn. 2001) (noting complaint as part of district court record); Minn. R. Crim. P. 28.02, subd. 8 (stating that record on appeal constitutes papers filed in trial court, exhibits, and transcripts).†

Spencer also challenges the basis for the CRIís knowledge.† The CRI provided specific information predicting that Spencer would act in a manner consistent with an impending sale of illegal drugs at a certain time and place.† Spencer confirmed this prediction by driving to the Perkins restaurant, leaving his car with the motor running to enter the restaurant, moving his head as if he were looking for somebody, then returning within a minute to his car.† Therefore Spencerís actions, observed by the police, corroborated the CRIís information.† The police also independently verified exact details of the CRIís tip, including the time frame Spencer was expected to arrive at the restaurant and the distinctive gold and silver wheel rims on his blue Buick.† Thus the district court did not err in finding that Spencerís behavior, supported by these corroborating details, provided reasonable suspicion to stop Spencerís vehicle.†

The police may seize an item in plain view or plain touch if they were lawfully in the position from which they viewed the object, the incriminating character of the object was immediately apparent, and the police had a lawful right of access to the object.† In re Welfare of G.M., 560 N.W. 2d 687, 693 (Minn. 1997).†† The legal basis for the plain view exception is that the evidence was obtained without intrusion upon a suspectís privacy beyond that already authorized by law.† Id. at 692-93.

In this case, after the initial stop the officers saw, in plain view, the marijuana and the crack cocaine on the front seat and on the floorboard of the car, respectively.† Because they did not further violate Spencerís privacy by viewing the controlled substances from outside the car, their seizure of these controlled substances was not illegal.

II

Evidence of past crimes or other misconduct is not generally admissible to prove the defendantís character.† Minn. R. Evid. 404(b).† This type of evidence may be admitted for the limited purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.† Id.; see generally State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).† But the evidence may be admitted in a criminal prosecution only if the state gives notice that it intends to use the evidence; the state indicates clearly what it intends to prove with the evidence; the evidence clearly and convincingly shows that the defendant participated in the other offense; the evidence is material and relevant to the stateís case; and the probative value of the evidence is not outweighed by its potential for unfair prejudice.† State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).† An exception to the notice requirement exists for previously prosecuted offenses.† Minn. R. Crim. P. 7.02.

Spencer contends, first, that because one of the offenses took place after he was charged with the current offense, it should not be used against him.† But the Minnesota Supreme Court has specifically held that evidence of other crimes, whether prior to or subsequent to the crime charged, may be admissible if the Spreigl criteria are met.† State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998).† Thus, the court did not err in considering evidence of Spencerís subsequent offense under the Spreigl standards.

Spencer argues, second, that the Spreigl evidence of his prior drug-related offenses was not relevant to the stateís case and that the evidenceís probative value was outweighed by its prejudice to him.† In determining the relevance of Spreigl evidence, the district court examines the closeness of the relationship between the other crimes and the charged crime in terms of time, place, and modus operandi.† State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).† A closer relationship between the other crimes and the charged crime will increase the relevance or probative value of the evidence and lessen the likelihood that it will be used for an improper purpose.† Id.† Thus, the ultimate issue is not the temporal relationship, but relevance as a whole.† Id.† In other words, the evidence must serve ďto complete the picture [of the defendant], not to paint another picture.Ē† State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992).† All three Spreigl incidents involved Spencerís presence in or around a motor vehicle and his possession of crack cocaine, which he had hidden or attempted to hide in the presence of police officers.† Although the prior offenses were fifth-degree drug offenses rather than second-degree offenses, they tend to establish a modus operandi of crack cocaine possession in or around a motor vehicle.† See State v. Cogshell, 538 N.W.2d 120, 122-24 (Minn. 1995) (upholding admission of Spreigl evidence when only similarities between prior and charged offenses were type and amount of drug, and packaging used by defendant).

In balancing the probative value of Spreigl evidence against its potential for unfair prejudice, the district court considers how necessary the evidence is to the stateís case.† Lynch, 590 N.W.2d at 81; see also State v. Slowinski, 450 N.W.2d 107, 114 (Minn. 1990) (noting that district court must consider whether evidence is necessary to support the stateís burden of proof). At trial, Spencer raised the defense that the cocaine belonged to his girlfriend, who had been sitting in the front passenger seat near where it was found.† Because of the close question on possession of the cocaine the state had a weak case, and the Spreigl evidence was necessary to support the stateís burden of proof.† Finally, the district court gave the jury a cautionary instruction to preclude their giving improper weight to the prior-offense evidence.† See Slowinski, 450 N.W.2d at 114-15.† The district court did not abuse its discretion in admitting evidence of Spencerís prior drug offenses.††

III

Spencerís final argument is that the district court abused its discretion by failing to depart from the presumptive sentence.† He maintains that the court impermissibly punished him at sentencing for electing to proceed to trial, rather than accept a plea bargain.

The district court must order the presumptive sentence provided in the sentencing guidelines unless ďsubstantial and compelling circumstancesĒ warrant a departure.† State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001); see also Minn. Sent. Guidelines II.D (stating the same).† Even if grounds exist that might warrant a departure, this court will not ordinarily interfere with the imposition of a presumptive sentence.† State v. Back, 341 N.W.2d 273, 275 (Minn. 1983); see also State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (stating that a district court has a unique perspective and is in the best position to evaluate an offenderís conduct and weigh sentencing options).†

The record in this case fails to support Spencerís argument that he was punished for electing to proceed to trial.† The sentencing transcript reflects the district courtís opinion that the presumptive sentence was appropriate.† The presentence investigation also recommended the presumptive sentence.† The courtís statement that it had agreed to be bound by the sentencing guidelines does not show an intent to punish Spencer; in fact, over the objection of the state, the court recommended that Spencer be included in the Challenge Incarceration Program.† Spencer failed to assert substantial and compelling circumstances that would warrant a downward departure, and the district court did not abuse its discretion in imposing the presumptive sentence.

††††††††††† Affirmed.