STATE OF MINNESOTA

IN COURT OF APPEALS

A06-73

State of Minnesota,
Respondent,

vs.

Christopher J. Mueller,
Appellant.

Filed April 17, 2007

Reversed

Wright, Judge

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.

U N P U B L I S H E D O P I N I O N

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.

FACTS

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 (Minn. 1980). In its September 27, 2005 order, the district court found Mueller guilty of third-degree controlled-substance crime. This appeal followed.

D E C I S I O N

Mueller 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 (Minn. 1999).

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 (Minn. 1998) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). Under the motor-vehicle exception, police may search an automobile without a warrant if there is probable cause to believe the vehicle is carrying contraband or illegal items. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). Other exceptions to the warrant requirement include a patdown search for weapons and a search incident to arrest. Hardy, 577 N.W.2d at 216.

To 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 (Minn. 1996). Police need not observe an actual violation of the traffic laws to stop a vehicle. Id. “The police must only show that [rather than] the product of mere whim, caprice or idle curiosity, [the stop] was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

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.”[1] 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 (Minn. App. 1998); see Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983) (adopting totality-of-the-circumstances approach to probable-cause determinations and abandoning previous approach that required a showing of both basis of knowledge and veracity of confidential informant or reliability of information). In doing so, we do not consider the basis of knowledge, veracity, and reliability independently. Gates, 462 U.S. at 233, 103 S. Ct. at 2329. Rather, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id.

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 (Minn. 1978). “The credibility of such an informant cannot be assumed,” and it is not sufficient to assert “in a conclusory fashion that [the informant] is credible or reliable.” 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).

“The 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 (Minn. 1985) (stating language indicating that police have used confidential informant successfully in the past gave magistrate reason to credit confidential informant and find probable cause); Siegfried, 274 N.W.2d at 114-15 (stating that credibility may be determined “by showing that the informant has a track record, e.g., by showing that in the past the information he has given the police has been accurate”); State v. McGrath, 706 N.W.2d 532, 542 (Minn. App. 2005) (stating that confidential informant’s “credibility and reliability must be bolstered by statements regarding a history of providing accurate information in prior criminal investigations”), review denied (Minn. Feb. 22, 2006).

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.

In 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 (Minn. 1999). The supreme court also observed that, “[w]hile the record does not contain specific details of the CRI’s record, further elaboration concerning the specifics of the CRI’s veracity is not typically required.” Id.

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?

A. Yes.

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.

Although 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 State v. McCloskey, 453 N.W.2d 700, 703-04 (Minn. 1990) (observing that confidential informant who has face-to-face meeting with police can be held accountable for his intervention supports conclusion that confidential informant lacked motive to falsify); Siegfried, 274 N.W.2d at 115 (noting that certain circumstances strongly suggest confidential informant’s tip is reliable such as when tip involves admission against confidential informant’s interest, implicates someone confidential informant would be expected to protect, or when confidential informant knows things will be worse for him if tip turns out to be false). The simple statement that the special agent had worked with the confidential informant in the past is insufficient to establish the confidential informant’s reliability.

Nonetheless, 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, 109 (Minn. App. 1991) (holding warrant unsupported by probable cause when based on anonymous tip and verification only of house location and vehicle ownership which are easily obtained facts).

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. Id. at 244, 246, 103 S. Ct. at 2335-36. But the Supreme Court also observed that “Florida is well known as a source of narcotics and other illegal drugs.” Id. at 243, 103 S. Ct. at 2335. Therefore, the usually innocent activity of travel became suspicious in light of the tip combined with the fact that Florida is a common destination for drug trafficking.

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 (Minn. App. 2000), review denied (Minn. July 25, 2000). Although the tip “included a description of Cook’s clothing, physical appearance, vehicle, and present location,” and although the police “were able to corroborate these details,” “[a]ll of these details were entirely innocuous and lacked any incriminating aspects that might corroborate the CRI’s claim that Cook was selling drugs at the YMCA.” Id. at 668.

[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.

Id. at 669. Furthermore, we noted that “[i]n a close case, the lack of a warrant may weigh against a finding of probable cause.” Id. at 667.

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.

Reversed.

[1] 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.