This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Christopher J. Mueller,
Hubbard County District Court
File No. K4-04-783
John M. Stuart, State Public Defender, Theodora K. Gaïtas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gregory D. Larson, Hubbard County Attorney, 301 Court Avenue, Park Rapids, MN 56470 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Wright, Judge.
In this appeal from his conviction of third-degree controlled-substance crime, appellant argues that law-enforcement officers, who received a tip from a confidential informant, did not have probable cause to arrest and search him and his car after initiating a stop. Because the state failed to establish that the confidential informant had provided reliable information in the past, and the officers’ corroboration of only innocent details provided by the confidential informant was insufficient to establish probable cause, we reverse.
On August 31, 2004, the Paul Bunyan Drug Task Force received a telephone call from a confidential informant stating that appellant Christopher Mueller would be leaving a bowling alley and driving west with methamphetamine and marijuana in his possession. The confidential informant described the vehicle Mueller would be driving and described Mueller as a white male in his mid-thirties wearing a leg brace. Drug-task-force agents observed a man who matched that description get into the described vehicle and head west. Acting on a request from the agents, a sheriff’s deputy followed the vehicle, stopped it, and identified Mueller as the driver. During a patdown search of Mueller, the deputy recovered plastic bags containing a white granular substance, which later tested positive for methamphetamine. Mueller was arrested. Officers searched Mueller’s vehicle and found drug paraphernalia, marijuana, and additional methamphetamine.
Mueller was charged by complaint with second-degree controlled-substance crime, a violation of Minn. Stat. § 152.022, subd. 2(1) (2004), and misdemeanor possession of marijuana in a motor vehicle, a violation of Minn. Stat. § 152.027, subd. 3 (2004). Mueller moved to suppress the evidence and his statements, for an order compelling the state to identify the confidential informant and establish his or her reliability, and to dismiss the charges. In its March 2, 2005 order, the district court denied the motion to disclose information regarding the confidential informant but reserved the issue of the informant’s credibility “as it relates to the basis for the stop” until the district court heard the remainder of Mueller’s motions to dismiss and suppress evidence. A contested omnibus hearing on those issues was held, and in its July 26, 2005 order, the district court granted the motion to suppress Mueller’s statements but denied the motions to suppress the evidence and dismiss the charges.
The state amended the controlled-substance
crime to a third-degree offense, a violation of Minn. Stat. § 152.023,
subd. 2(1) (2004), and dismissed the marijuana charge. Mueller agreed to a trial on stipulated facts
under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (
D E C I S I O N
argues on appeal that the district court erred in denying the motion to
suppress evidence. When the facts are not in
dispute, we review a decision denying a motion to suppress evidence to
determine whether, in light of the facts, the district court erred as a matter
of law. State v. Harris, 590 N.W.2d 90, 98 (
The Fourth Amendment to the
United States Constitution and Article I, section 10, of the Minnesota
Constitution protect citizens from unreasonable government searches and
seizures. Searches that are not authorized
by a warrant “‘are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions.’” State v. Hardy, 577 N.W.2d 212, 216 (
prove that a warrantless felony arrest comports with the constitutional
protection against unreasonable seizures, the state must establish that the
officers making the arrest had factual information from reliable sources
sufficient to reasonably believe that the suspect committed a felony. State
v. Merrill, 274 N.W.2d 99, 108 (Minn. 1978); see Minn. Stat. § 629.34, subd. 1(c)(3) (2004) (providing
that officer may arrest suspect without warrant if officer has reasonable cause
to believe suspect committed a felony). But
“[a] brief investigatory stop requires only reasonable suspicion of criminal
activity, rather than probable cause.” State v. Pike, 551 N.W.2d 919, 921 (
In its order denying the motion to suppress, the district court determined that, “[c]onsidering the totality of the circumstances, the information provided from the confidential reliable informant, corroborated by law enforcement’s observations, provided probable cause for the stop of [Mueller’s] vehicle.” The district court also determined that, because law enforcement had probable cause to arrest Mueller for controlled-substance possession and to search his vehicle for contraband, neither the search of Mueller’s person nor the search of his vehicle was unconstitutional.
Under ordinary circumstances involving a stop and patdown search, we would determine whether the stop was valid and whether the drugs found during the patdown search were constitutionally obtained by plain feel. See Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993) (holding that warrantless seizure of contraband is lawful if officer performing lawful Terry stop and patdown search over suspect’s clothing feels an immediately identifiable object). Discovery of the drugs in this constitutionally sound manner would have provided the police with probable cause to arrest Mueller and search his vehicle. But neither the testimony nor the district court’s findings offer any basis to conclude that the drugs in Mueller’s pocket were found by plain feel during the patdown search. Because the record does not support application of the plain-feel exception, we cannot rely on the drugs found during the patdown search when analyzing whether the officers had probable cause to arrest Mueller and search him and the vehicle. Furthermore, the district court determined that Mueller “was subject to restraints comparable to formal arrest from the time he stepped out of the vehicle.” Because the record establishes that Mueller was stopped and immediately placed under arrest, and Mueller does not contest the stop, the only issue before us is whether the confidential informant’s tip provided the officers with probable cause to arrest Mueller and search him and his vehicle.
When determining whether a confidential informant’s tip provided
officers with probable cause to arrest or search, we consider the totality of
the circumstances, including the confidential informant’s basis of knowledge,
veracity, and reliability. State v. Ward, 580 N.W.2d 67, 71 (
The word “informant” in the
Fourth Amendment context usually refers to “someone in the underworld or its
periphery.” State v. Siegfried, 274 N.W.2d 113, 114 (
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 (
second factor is fulfilled by a simple statement that the informant has been
reliable in the past . . . .” Id.
(holding that district court erred in suppressing evidence because lack of
specific information about prior contacts between confidential informant and
police did not preclude finding of reliability and record showed confidential
informant had previously provided accurate information resulting in arrests); see State
v. Wiley, 366 N.W.2d 265, 269 (
Mueller argues that the police lacked probable cause to arrest him and search him and his vehicle because the confidential informant’s tip was not sufficiently reliable. Mueller contends that the district court’s use of the term “confidential reliable informant” (CRI) is clearly erroneous and based solely on the “bald assertion” of the special agent who testified at the omnibus hearing. The issue before us, however, is not whether the district court’s use of the term CRI was correct, but whether the police had probable cause to arrest Mueller, which in this case depends solely on whether the confidential informant’s tip was sufficiently reliable.
State v. Munson, the supreme court determined that
the confidential informant’s reliability was established when the officer
“testified that, by definition, a CRI was someone who had previously provided
the police with information that led to an arrest and that the particular CRI
who provided the information about Munson had given the police reliable
information in the past.” 594 N.W.2d 128, 136 (
Here, the only testimony regarding the reliability of the confidential informant occurred during a short colloquy between the prosecutor and the special agent:
Q. Let me stop you right there. You say you received some information. Could you describe how it was that you received this information?
A. From a confidential reliable informant.
Q. Was this somebody that you contacted or did this person contact you?
A. This person contacted me.
Q. Had you worked with this person before?
The state then asked the special agent to “describe in very brief detail” the type of work that he had done with the confidential informant, but Mueller objected and the state voluntarily moved on before the district court ruled on the objection. The state contends that Mueller’s interruption of this line of questioning precludes Mueller from arguing that the confidential informant was not reliable. But because the basis of the objection was the state’s failure to produce in discovery information regarding the identity and reliability of the confidential informant prior to the hearing, Mueller’s objection does not constitute a waiver of his right to challenge the reliability of the confidential informant’s tip. Mueller has consistently raised the reliability of this confidential informant as the central issue in this case. Therefore, Mueller’s objection to the state’s question did not relieve the state of its burden to establish the reliability of the tip and the existence of probable cause.
the absence of specific details about a confidential informant’s history does
not preclude a probable-cause determination under Minnesota caselaw, the record
is devoid of any information
regarding the confidential informant’s history or reliability. Presumably the special agent knew the confidential informant’s
name because the special agent testified that he had worked with this confidential
informant in the past. But there is no
indication that the confidential informant had provided reliable information in
the past, was making statements against his interest, was voluntarily
cooperating with law enforcement, or met with police face to face, any of which
could be cited as reasons to credit the confidential informant’s tip. See
a confidential informant’s reliability also can be established “by showing that details of
the tip have been sufficiently corroborated so that it is clear the informant
is telling the truth on this occasion. Stated
differently, the fact that police can corroborate part of the informer’s tip as
truthful may suggest that the entire tip is reliable.” Siegfried,
274 N.W.2d at 115. But an
“informant’s reliability is not enhanced if the informant merely gives
information that is easily obtained.” Ross, 676 N.W.2d at 304; see
Munson, 594 N.W.2d at 136-37
(holding that officers’ corroboration of tip’s details, including vehicle,
destination, arrival time, and occupants, together
with past reliability of confidential informant, gave officers probable
cause to search vehicle);
State v. Albrecht, 465 N.W.2d 107,
Corroboration of innocent
activity may be sufficient to establish probable cause. Gates,
462 U.S. at 243-44 n.13, 103 S. Ct. at 2335 n.13. “[T]he relevant inquiry is not whether
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of non-criminal acts.” Id.
at 244 n.13, 103 S. Ct. at 2335 n.13. In
Gates, the Supreme Court determined
that an anonymous tip was sufficient to establish probable cause in light of
the corroboration of the tip’s predictions regarding the suspects’ travel to
and from Florida, which indicated that the tipster’s other assertions regarding
criminal activity also were true.
Mueller argues that the officers’ corroboration of only mundane and easily obtained details was insufficient to establish the confidential informant’s reliability. We agree. In contrast to the facts in Gates, Mueller’s acts of leaving a bowling alley and driving west are innocent activities that became no more suspicious because of the confidential informant’s tip.
The facts here are more akin
to those in State v. Cook in which we held that the police
lacked probable cause to arrest a suspect based on a confidential informant’s tip
because even though the confidential informant was “undeniably credible,” he lacked
a basis of knowledge since he “never claimed that he had purchased drugs from
Cook or that he had seen Cook selling drugs.”
610 N.W.2d 664, 667-68 (
[T]he details provided by the CRI did not predict any future behavior on Cook’s part. Rather, the details were simply a report of Cook’s appearance and present location, details easily obtainable by anyone, not necessarily by someone with inside information on Cook. In addition, there was nothing suspicious about the time or place of the events here, which took place at midday outside the YMCA.
The record is devoid of any evidence that the confidential informant had been reliable in the past. The evidence established only the corroboration of innocent details, most of which could have been obtained by anyone sitting near Mueller at the bowling alley. Indeed, the only detail that would not be readily apparent to someone in the bowling alley is Mueller’s license-plate number, which could have been obtained by observing Mueller enter or exit his vehicle. The prediction that Mueller would travel west is not significant in light of the special agent’s acknowledgement that most people leaving the bowling alley head west to the nearest major thoroughfare. And even though the confidential informant maintained that his or her basis of knowledge was a conversation with Mueller, under the totality of the circumstances, without any other indicia of reliability, the corroboration of such innocent details of a confidential informant’s tip is insufficient to establish probable cause.
The confidential informant’s tip was sufficient to establish reasonable suspicion to justify the stop of Mueller’s vehicle, but it was insufficient to establish probable cause to arrest or search Mueller and his car. See Cook, 610 N.W.2d at 669 (stating that confidential informant’s tip may provide police with reasonable suspicion to justify stop even if insufficient to provide probable cause). Although a case can be remanded to reopen the omnibus hearing if a party was not given adequate notice or opportunity to litigate an issue, State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992), Mueller provided notice when he specifically put the “credibility of the C.R.I.” at issue in his motion to suppress. Moreover, the district court expressly reserved the issue of the credibility of the confidential informant “as it relates to the basis for the stop” until it heard the remainder of Mueller’s pending motions. Thus, on these facts, reopening the omnibus hearing is not justified.
The record before us presents insufficient evidence to establish that the officers’ actions were supported by probable cause. Without any showing that the confidential informant had been reliable in the past or some other indicia of reliability, the corroboration of innocent and easily obtained details of a confidential informant’s tip is insufficient to satisfy the limited exceptions under which a warrantless arrest or search is permissible. We, therefore, reverse the district court’s denial of the motion to suppress.
 The district court applied the higher standard of probable cause, rather than reasonable suspicion, when analyzing the constitutionality of the stop of Mueller’s vehicle. But Mueller does not challenge the stop of his vehicle.