This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
David Edward Kellerman,
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.
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
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. 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 (
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 (
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 (
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 (
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 (
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.
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.
 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.