This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


David Edward Kellerman,


Filed June 27, 2006


Stoneburner, Judge


McLeod County District Court

File No. KX041335


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael Junge, McLeod County Attorney, McLeod County Courthouse, Suite 112, 830 East Eleventh Street, Glencoe, MN 55336 (for respondent)


John M. Stuart, Minnesota Public Defender, Theodora Gaďtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his conviction of a controlled-substance crime in the fifth degree, arguing that there was not probable cause for his arrest, and that the district court erred by denying his motion to suppress evidence discovered as a result of his arrest.  Because there was probable cause for appellant’s arrest, we affirm.



            In exchange for not charging him with fifth-degree possession of a controlled substance, Wayne Bernier, arrested for possession of methamphetamine, agreed to cooperate with Hutchinson police officer Adam Ament, who was assigned to the Southwest Metro Drug Task Force.  Bernier told Ament that appellant David Edward Kellerman was his supplier of methamphetamine.  Cooperating with Ament, Bernier purchased methamphetamine from Kellerman in the restroom of a local grocery store.  Bernier was searched prior to the buy and was under Ament’s observation from the time he was searched until he returned with methamphetamine, except for the brief period when Bernier and Kellerman entered the otherwise unoccupied restroom. 

            A week later, Bernier, in Ament’s presence set up another meeting with Kellerman to buy methamphetamine.  Ament recorded the telephone calls Bernier made to Kellerman to set up the buy.[1]  Prior to the meeting, Bernier alerted Ament to the fact that Kellerman often carried additional methamphetamine in a baby sock attached by a pin to his boxer shorts.  Ament, dressed in plain clothes, approached Kellerman at the scene of the arranged buy and arrested him for suspicion of possession of methamphetamine.  Kellerman admitted that he had one gram of methamphetamine in his pocket.  Ament removed the methamphetamine from Kellerman’s pocket, gave him a Miranda warning, and transported him to the police station.  At the station, Ament searched Kellerman and found six plastic baggies of methamphetamine concealed in a baby sock attached by a pin to Kellerman’s boxer shorts.  Kellerman was ultimately charged with a controlled-substance crime in the fifth degree under Minn. Stat. § 152.025, subd. 2(1) (2004).

            Kellerman moved to suppress evidence of the drugs, asserting that because Ament lacked probable cause to arrest him, the evidence was not lawfully discovered incident to arrest.  The district court denied the motion and the case was submitted to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Kellerman guilty, and this appeal followed.



            Police may arrest a felony suspect without a warrant in any public place provided they have probable cause, and if the arrest is valid, police may conduct a warrantless search of the suspect as an incident to the arrest without additional justification.  State v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000). 

In order to establish that probable cause existed for a warrantless arrest, the state must show that, at the time of the arrest, the police had factual information obtained from reliable sources, from which they could conclude that there was probable cause to believe the defendant had participated in a felony.


State v. Eling, 355 N.W. 2d 286, 290 (Minn. 1984).  “When determining the legality of a warrantless arrest, we look to the information that police took into consideration when making the arrest, not what they uncovered thereafter.  Cook, 610 N.W.2d at 667.  “Probable cause for arrest exists where the facts would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person under consideration is guilty of a crime.”  Id. (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)).  “Each case must be determined on its own facts and circumstances, and the facts must justify more than mere suspicion but less than a conviction.”  Id. (quoting Carlson, 267 N.W.2d at 173-74).  “The lawfulness of an arrest is determined by an objective standard that takes into account the totality of the circumstances.”  Id.  “When assessing reliability [of an informant’s tip], courts examine the credibility of the informant and the basis of the informant’s knowledge in light of all the circumstances.”  Id.

There are six factors for determining the reliability of confidential, but not anonymous, informants: (1) a first-time citizen informant is presumably reliable; (2) an informant who has given reliable information in the past is likely also currently reliable; (3) an informant’s reliability can be established if the police can corroborate the information; (4) the informant is presumably more reliable if the informant voluntarily comes forward; (5) in narcotics cases, “controlled purchase” is a term of art that indicates reliability; and (6) an informant is minimally more reliable if the informant makes a statement against the informant’s interests.


State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004).

            Kellerman argues that Bernier was not reliable under any of the six factors enumerated in Ross.  The state concedes that Bernier was not a first-time citizen informant.  Kellerman argues that Bernier is not an informant who has given reliable information in the past, citing State v. Wiley, 366 N.W. 2d 265, 269 (Minn. 1985) in which an informant who had been successfully used over several years was found to be reliable.  But there is no authority for Kellerman’s implied assertion that to be reliable an informant must have provided information on more than once occasion.  The record demonstrates that Bernier obtained methamphetamine from Kellerman a week before Kellerman’s arrest in a controlled-purchase situation, which constitutes Bernier having given reliable information prior to Kellerman’s arrest.  See State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (stating that “controlled purchase” is a term of art meaning that “police searched the informant immediately before and after the alleged drug purchase and conducted surveillance of the purchase to the extent feasible”). 

            Kellerman also argues that Bernier’s information was not corroborated, asserting that the recorded telephone conversations were cryptic, largely inaudible, and established that Kellerman did not have drugs for sale.  But the conversations show that Bernier was looking for drugs to buy, had money, and Kellerman agreed to meet him in 15 minutes.  Although Bernier did not come forward voluntarily, the prior controlled purchase indicated his reliability.  Despite the fact that Bernier was cooperating in order to avoid having charges brought against him, his admission that he regularly purchased drugs was against his interests and is at least of some minimal relevance in a totality-of-the-circumstances analysis of probable cause.  See State v. McCloskey,453 N.W.2d 700 (Minn. 1990) (noting if a statement was in some way against an informant’s interest is of some minimal relevance in a totality-of-the-circumstances analysis of probable cause).

            Under the totality of the circumstances, we conclude that there were sufficient indicia of Bernier’s reliability to provide probable cause for Kellerman’s arrest.  Because the warrantless search was incident to lawful arrest, the district court did not err in denying Kellerman’s motion to suppress evidence obtained from the search.


[1] The parties agreed to admission of the tape recordings in connection with Kellerman’s motion to suppress.  The tapes were not transcribed until this appeal.