This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Donald Edwin Peterson,
Filed February 8, 2005
Affirmed in part, reversed in part, and remanded
St. Louis County District Court
File No. K0-03-101325
Mike Hatch, Attorney General, Kelly O’Neill Moller, Jill Schlick, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Emerald Gratz (certified student attorney), 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*
Appellant challenges the district court’s determination that evidence seized by police was admissible as a product of a legal search incident to arrest. Appellant also challenges the district court’s assessment of a $200 copayment for public-defender services under Minn. Stat. § 611.17 (Supp. 2003), which the supreme court has declared unconstitutional. We affirm the district court’s ruling as to the seized evidence but reverse the district court’s assessment of the $200 copayment and remand for a determination of whether appellant should be assessed any amount under Minn. R. Crim. P. 5.02, subd. 5.
On July 9, 2003, a citizen informant went to the police station in the city of Virginia and reported that he had seen a person sitting in a black Chevrolet Cavalier on White Dump Road and that the person may have been tampering with the car. The informant described the person as a white male in his late teens and stated that the car’s license plate number was HBK 239. The informant also stated that the person entered the woods when he saw the informant.
Officer David Koski of the Virginia Police Department ran a license-plate check on the information the tipster provided and determined that the license plate was assigned to a Ford LTD. Officer Koski then began to drive to White Dump Road to investigate. While stopped at an intersection en route, he saw a black Chevrolet Cavalier with the license plate HBK 539 driving in the opposite direction. The officer turned around, pulled his car next to the Cavalier as the Cavalier was parking, and activated his flashing lights. He recognized the driver as appellant Donald Edwin Peterson and requested his driver’s license. The officer then called the dispatcher to check appellant’s license number and request backup.
The dispatcher told Officer Koski that a warrant was out on “Peterson.” After five backup officers arrived, Officer Koski told appellant that he was under arrest. When the officer grabbed appellant’s left arm to handcuff him, appellant pulled away, and another officer grabbed appellant’s right arm. According to Officer Koski, “[T]here was a slight struggle to get the handcuffs on him[.] . . . [H]e wouldn’t cooperate.” After appellant was handcuffed, Officer Koski searched appellant and found a small glass pipe and a plastic bag containing methamphetamine in appellant’s pockets.
On the way to the police station, Officer Koski called the dispatcher to report that he had someone in custody, and the dispatcher asked if the officer had David Scott Peterson in custody. When the officer arrived at the police station, he discovered that there was no warrant out on appellant Donald Edwin Peterson; there was a warrant out on David Scott Peterson.
Appellant was charged with possession of a controlled substance in the fifth degree under Minn. Stat. § 152.025 (2002) and obstructing legal process under Minn. Stat. § 609.50 (2002). Appellant requested an omnibus hearing, arguing that because the officer stopped him illegally, the evidence seized during the post-arrest search should be suppressed. The district court determined that although Officer Koski stopped appellant illegally, the seized evidence was admissible as a product of a legal search incident to arrest. Appellant then entered a Lothenbach plea, and the district court found him guilty of both charges. An amended financial contract was filed later, adding a $200 copayment for public-defender services to appellant’s fines. This appeal follows.
When reviewing an order suppressing evidence in cases where the facts are not in dispute and the district court’s decision is a question of law, the reviewing court may “independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Here, the stop was based on the report of an informant who came into the police station. The informant told police that he had seen a car on the side of the road, and a person near the car entered the woods when he saw the informant. The district court noted that the informant did not report any illegal activity, and the officer did not observe any illegal activity after locating the individual and vehicle the informant described. Thus, the district court concluded that the officer did not have specific and articulable facts that justified stopping appellant.
Respondent points to several cases supporting the theory that citizen informants are reliable: Marben v. State, 294 N.W.2d 697 (Minn. 1980); State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333 (1973); State v. Okegbenro, 409 N.W.2d 1 (Minn. App. 1987). But the more important question here is whether, even if the information provided was reliable, it was enough to justify a stop. In each of the cases relied on by the state, the citizen informants gave detailed reports of illegal activity they had witnessed. Marben, 294 N.W.2d at 698 (truck driver describing appellant’s dangerous driving over a 60-70 mile stretch of road); Lindquist, 295 Minn. at 398, 205 N.W.2d at 334 (citizen describing a man who showed her a bag full of marijuana); Okegbenro, 409 N.W.2d at 2 (victim describing sexual assault and assailant).
At the omnibus hearing here, the officer who stopped appellant testified that the informant reported that he saw a person who appeared to be “tampering with the vehicle.” But the officer also testified that the informant did not say he saw anything illegal. The officer stated that he did not know how much time had passed before the informant reported what he had seen or how far the informant was from the vehicle he saw. No one had reported a stolen car of the same model. When the officer later saw a similar car on the street, he also saw appellant’s license plate and recognized the driver as Donald Edwin Peterson. Under these circumstances, the officer could have investigated whether appellant owned the car without stopping appellant. We therefore agree with the district court that the officer here did not have specific and articulable facts that warranted the stop of appellant.
B. Legality of the Arrest and Subsequent Search
Appellant argues that because the stop was illegal, the evidence police obtained by searching him should be suppressed as “fruit of the poisonous tree.” To determine whether evidence is considered “fruit of the poisonous tree,” we examine whether the evidence was obtained as a result of the exploitation of illegal state action or “by means sufficiently distinguishable to be purged of the primary taint.” Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000) (quotation omitted). Factors the court looks at to determine whether the evidence is purged of the primary taint include (1) the purpose and flagrancy of the misconduct, (2) the presence of intervening circumstances, (3) the likelihood that the evidence would have been obtained in the absence of the illegality, and (4) the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality. Id.
Generally, Minnesota courts have held that resisting arrest or obstructing legal process is an intervening circumstance sufficient to purge the illegality of its primary taint. State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997). A person obstructs legal process when he or she “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.” Minn. Stat. § 609.50, subd. 1(2) (2002). The obstruction or resistance does not need to include the use of threat or force to constitute a violation of the statute. See Minn. Stat. § 609.50, subd. 2 (2002) (explaining that an act of resistance “accompanied by force or violence or the threat thereof” constitutes a felony or gross misdemeanor, and an act of resistance constitutes a misdemeanor “in other cases”).
In State v. Olson, 634 N.W.2d 224, 227 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001), a deputy sheriff attempted to do a pat-down search of defendant after wrongfully arresting him. Defendant “began to twist, turn, and pull away from the deputy” and later “struggled more violently.” Id. This court stated that the second factor in determining whether evidence is tainted—the presence of intervening circumstances—supported admitting the evidence the deputy found when he conducted the pat-down search. Id. at 229-30. We concluded that because the deputy could legally arrest defendant for obstructing legal process, the taint of the earlier illegal arrest was removed and the methamphetamine found on defendant after he resisted arrest was admissible as the product of a legal search incident to arrest. Id. at 230.
In contrast, in another case, this court concluded that some movement by an individual did not constitute resistance to arrest, and, therefore, the evidence obtained in a police search of the individual was inadmissible. State v. Richmond, 602 N.W.2d 647, 650, 653 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). In Richmond, the defendant did not answer an officer’s questions, was slow to produce a driver’s license upon the officer’s request, and removed his hands from the squad car twice after the officer told him to keep his hands on the car. Id. at 650, 653. Because defendant was under control and did not present a threat to the police, we concluded that the district court did not err in determining that defendant did not obstruct legal process. Therefore, the evidence found during a search incident to his arrest was deemed inadmissible. Id. at 653.
Here, appellant pulled away from the officer when the officer attempted to arrest appellant and “a slight struggle to get the handcuffs on him” followed. The officer required assistance to effect the arrest. Because appellant used some force against the officer, we conclude that appellant did obstruct legal process. Therefore, appellant was lawfully arrested for obstructing legal process, and the search after appellant’s arrest was a legal search incident to arrest. The district court was correct in not suppressing the evidence found during the search of appellant after his arrest.
The second issue appellant raises is whether the district court erred in assessing him a copayment for public-defender services under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003). Because appellant’s case was pending on direct appeal when the supreme court declared this statute unconstitutional, appellant argues that he should not be obligated to make the copayment. See State v. Tennin, 674 N.W.2d 403, 410-11 (Minn. 2004) (concluding the statute violated both the federal and state constitutions).
The state concedes that the $200 fee should not have been assessed against appellant under Minn. Stat. § 611.17 (Supp. 2003). The state argues only that appellant may still be required to pay for some of the expenses of having a public defender under Minn. R. Crim. P. 5.02, subd. 5, as it existed when appellant was sentenced in January 2004. At the time, the rule stated, “The court may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of the appointed public defender.” Minn. R. Crim. P. 5.02, subd. 5 (1999). The state argues this court should remand the issue to the district court to decide if appellant is able to pay any amount.
A criminal defendant may be required to pay some fee for the services of a public defender if the court determines that the defendant is financially able. Id.; Minn. Stat. § 611.20 (Supp. 2003). We have previously concluded that a criminal defendant’s constitutional rights are not violated by such a repayment scheme. State v. Cunningham, 663 N.W.2d 7, 12-13 (Minn. App. 2003). Therefore, we reverse the district court’s decision to charge appellant $200 and remand this issue to the district court for a decision on whether appellant is able to and should be required to make any payment for public-defender services.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state has the right to argue that the district court was correct in ruling the search incident to arrest was legal but incorrect in ruling the stop was illegal. The state does not need to file a notice of review for the issue of the district court’s ruling on the stop to be properly before this court because the state is not seeking affirmative relief. Compare Minn. R. Crim. P. 28.04, subd. 3 (setting forth the process for an appeal by the state in a criminal case and explaining that the defendant may obtain review of any order by filing a notice of cross-appeal) with Minn. R. Crim. P. 28.02 (setting forth the process for an appeal by a criminal defendant and lacking any procedures by which the state may file a notice of review or cross-appeal).
 The rule was later revised on December 10, 2003, and the change became effective on February 1, 2004.