This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-03-300

 

 

State of Minnesota,

Appellant,

 

vs.

 

Joseph Xavier Torres,

Respondent.

 

 

Filed August 19, 2003

Affirmed

Anderson, Judge

 

Washington County District Court

File No. K7027001

 

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

 

Doug Johnson, Washington County Attorney, Heather D. Pipenhagen, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN  55082 (for appellant)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

 


U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            This is an appeal from a pretrial order suppressing evidence seized following a traffic stop and dismissing the complaint charging respondent with a second-degree controlled substance crime.  The state argues that the district court clearly erred in ruling that police officers conducting surveillance on a townhouse in response to an anonymous tip that methamphetamine manufacturing and use was occurring there did not have grounds to stop a vehicle leaving the townhouse.  We affirm.

FACTS

 

At approximately 10 p.m. on the evening of November 20, 2002, Officer Greg Weiss of the Forest Lake Police Department was notified by dispatch to return a telephone call to an unidentified person who had information about suspected illegal-drug activity.  Weiss returned the call and spoke to an unidentified woman.  The informant told Weiss that her friend, never identified, had just seen people in a nearby townhouse smoking methamphetamine and possibly manufacturing it as well.  After the informant gave Weiss the address where the alleged drug use was taking place, Weiss drove toward the townhouse complex and parked a couple blocks away.       

Weiss and the informant spoke to each other ten or twelve more times that evening.  The informant told Weiss that one of the individuals involved in the alleged illegal activity had arrived at the townhouse in a green 1990 Chevy S-10 and the informant opined that the individual would most likely leave in that vehicle.  Weiss asked the informant to call him if anyone left the townhouse. 

Weiss and other Forest Lake police officers had discussed the situation and decided to stop the S-10 when it left the townhouse.  Later that evening, the informant called Weiss again and told Weiss she saw some unidentified people loading what she believed to be a methamphetamine lab into the trunk of a white Buick Regal.  The informant then reported that the individuals were leaving the townhouse complex in the Buick. 

Another Forest Lake officer, parked very close to the townhouse complex, told Weiss that he saw a white Buick Regal leaving the complex.  The officer told Weiss that the Buick drove through a stop sign.  Weiss was ordered to stop the Buick.  This order was issued despite the absence of a stop sign near the intersection.

Weiss stopped the Buick driven by respondent Joseph Xavier Torres.  Weiss observed that respondent appeared nervous and repeatedly reached towards the vehicle’s console.  Weiss also noticed a large amount of cash inside the Buick.  Because respondent and the other occupants of the vehicle were fidgety and appeared anxious, Weiss became concerned for his own safety and asked respondent to step out of the car.  After respondent left the car, Weiss noticed respondent had a small straw, which Weiss knew was commonly used to snort methamphetamine, resting behind his ear.  Weiss also observed a white powdery substance on the straw that Weiss suspected was methamphetamine.  Respondent was arrested for possession of drug paraphernalia. 

The Buick was secured and towed to the Forest Lake Police Department where an inventory search was performed.  During the search, police officers discovered 10 grams of methamphetamine as well as several baggies of marijuana.[1]  Respondent admitted that the drugs were his. 

Respondent was subsequently charged with one count of a controlled-substance crime in the second degree in violation of Minn. Stat. § 152.022, subds. 2(1), 3 (2002).  Following the omnibus hearing, the district court found that because there was no stop sign, the anonymous informant’s information was not independently corroborated, and the anonymous informant did not identify respondent, Weiss lacked the required reasonable articulable suspicion to stop respondent.  Based on this finding, the district court suppressed the evidence seized following the illegal stop and dismissed the complaint.  This appeal followed. 

D E C I S I O N

 

The state argues the district court clearly erred in determining that law enforcement lacked the requisite reasonable articulable suspicion to justify the stop of respondent’s vehicle.  To prevail on appeal from a pretrial suppression order, the state must establish that the district court’s ruling constitutes a clear error and that the ruling will have a critical impact on the state’s ability to prosecute the defendant.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  Because suppression of the evidence renders prosecution of respondent impossible, the district court’s ruling here had an undeniably critical impact.  And because the facts of this case are undisputed, the district court’s ruling presents a question of law, which this court independently reviews.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

It is well established that “a police officer may not stop a vehicle without a reasonable basis for doing so.”  Marben v. Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)).  Here, Weiss stopped respondent’s vehicle based on an erroneous report that respondent had failed to stop at a stop sign.  Because there was no stop sign in the vicinity of the intersection, where the alleged traffic violation occurred, it was impossible for respondent to have committed the traffic violation, and thus there was no justification for the stop. 

The state suggests that the stop was permissible because Weiss had relied on his peer’s assertion that the vehicle ran the stop sign thus giving Weiss a basis to stop respondent.  But because the “collective knowledge” doctrine imputes the officer’s mistake to Weiss, the state’s argument is misplaced.  Under the collective knowledge approach to reviewing probable cause, law enforcement officers are entitled to act on the strength of information received from their peers and may assume at the time of apprehension that probable cause exists.  State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982).  An officer may also rely on all collective information available in the police department and, under same circumstances, the officer may assume at the time of apprehension that probable cause has been established.  Id But it is necessary that the information upon which the officer is relying upon be correct and if not, there is no probable cause for the stop.  Id Because the other officer’s mistake is imputed to Weiss, we reject the state’s argument. 

            The state argues that even if this court concludes the traffic stop was not proper, the evidence should nevertheless have been admitted because the information Weiss received from the informant provided a reasonable articulable suspicion justifying an investigatory, or Terrystop.  An investigatory stop requires only reasonable articulable suspicion of criminal activity, not probable cause.  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  Limited investigatory stops are allowed if police have a reasonable articulable suspicion of a motor vehicle violation or of criminal activity.  Id. (citation omitted).   The stop must be based on more than a “hunch” and cannot be the “product of whim or caprice or malice.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997); Pike, 551 N.W.2d at 921.  An officer need not personally observe facts to establish reasonable articulable suspicion and may rely on facts provided by a third person.  Marben, 294 N.W.2d 697, 699 (Minn. 1980). 

            Reasonable articulable suspicion may be based on an informant’s tip if police know enough about the informant to believe he or she is credible and the information given to police appears to have some factual basis or indicia of reliability.  State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986).  Direct contact between an informant and an officer enhances an informant’s credibility, because an informant can be held accountable for any false information.  In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997).  Also, the credibility of the informant is enhanced if the informant’s information is based on firsthand knowledge of the alleged illegal activity.  State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000), review denied (Minn. July 25, 2000).  It is critical to note an arrest is never justified by what the subsequent search reveals.  Conaway, 319 N.W2d. at 39.

            The United States Supreme Court, in Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412 (1990), held that an anonymous telephone tip that shows sufficient indicia of reliability and is corroborated by independent police work provides police with the reasonable suspicion needed to make the investigatory stop.  This decision was based on the fact that an anonymous informant correctly predicted when the suspect would leave a particular building, what kind of car she would drive, and where she would go.  Id. at 331, 110 S. Ct. at 2416-17.  The Supreme Court reasoned that the informant’s ability to correctly predict so many of the suspect’s future acts independently corroborated the informant’s tip and demonstrated that the informant was very familiar with the suspect’s personal affairs.  Id. at 331-32, 110 S. Ct. at 2417.  It was therefore reasonable to conclude the informant was also correct that the defendant was engaged in the illegal activity alleged by the informant.  Id

            Further, in G.M., 560 N.W.2d at 661-62, Minnesota’s Supreme Court held that where the police have “extraordinarily strong knowledge of the circumstances forming the basis for the tipster’s information” the police have the requisite reasonable articulable suspicion to justify a Terry stop even though the tipster was and remained anonymous.  The court based this decision on the fact that police spoke directly to the informant, and also observed the informant talk with the suspect and look in the suspect’s car where the informant reported seeing cocaine.  Id.

            Like the informants in White and G.M.,the informant here provided the police with some accurate information.  The informant correctly predicted when respondent would leave the townhouse complex and that he would be leaving with other people in his car.  Further, the informant accurately described the make and model of the car respondent would be driving. 

            There are also reasons to question the informant’s veracity.  Although the informant correctly described the car respondent left in, she initially told the police the suspect arrived in a green truck.  This information was never verified.  Additionally, the informant was not clear if there was just drug use taking place in the apartment or whether methamphetamine was being manufactured.  The informant never described respondent, or in any way identified him or any of the other people involved in the supposed illegal conduct.  Additionally, the informant’s report that a methamphetamine lab was being loaded into the trunk of the Buick is not supported by any sort of verifiable information.  The record provides no indication why the informant believed a methamphetamine lab was being loaded into the truck of the Buick or even that the informant could identify a methamphetamine lab.

            But most significant is that the informant never claimed to have actually seen the alleged illegal activities inside the townhouse.  The informant was relying on what her friend said was happening inside the townhouse, and the informant had no actual knowledge if any of what her friend said was, in fact, true.  The record is very clear that her information is based on anecdotes heard from an unidentified third person.  For example the informant told Weiss that she had been told that people were using methamphetamines and possibly making it as well.  Although the informant described the cars the suspected drug users were traveling in, she never gave descriptions or names of the suspects.

            Because the informant lacked firsthand knowledge and failed to specifically identify respondent, and because the police did not independently verify much of her story, we conclude that the district court acted properly in ruling the police lacked reasonable articulable suspicion to conduct an investigatory stop, and properly suppressed the evidence from the illegal stop and dismissed the complaint.

            Affirmed.



[1] The police, however, did not find the methamphetamine lab in the trunk of respondent’s car.