STATE OF MINNESOTA

IN COURT OF APPEALS

A06-909

State of Minnesota,
Respondent,

vs.

Jay Kelly Martin,
Appellant.

Filed June 12, 2007

Affirmed

Stoneburner, Judge

Pine County District Court

File No. K5021041

Steven J. Meshbesher, Kevin M. Gregorius, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

John Carlson, Pine County Attorney, Pine County Attorney’s Office, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063 (for respondent)

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

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

STONEBURNER, Judge

Appellant challenges his conviction of fifth-degree possession of a controlled substance, arguing that the district court erred in denying his motion to suppress evidence that was obtained through an illegal stop, search, and seizure. We affirm.

FACTS

Anthony Scholten, who had been arrested for possession of a controlled substance, told Pine County Sheriff’s deputies that he had recently seen a person named “Jay Kelly,” later identified as appellant Jay Kelly Martin, “cooking” methamphetamine on property owned by Lori Nebola. Scholten also described various motor vehicles used by Martin.

The day after the sheriff’s department received this information, Lori Nebola’s husband, Joedy Nebola, called the sheriff’s department to report that when he visited his estranged wife that morning, he observed Martin and two other people manufacturing methamphetamine in a shed on Lori Nebola’s property. Joedy Nebola reported that he knocked the manufacturing equipment to the floor in anger, which resulted in a physical confrontation with Martin, who reached for a handgun, provoking Joedy Nebola to throw Martin to the floor. Martin left when Joedy Nebola threatened to call the police. Joedy Nebola admitted to the sheriff’s department that he does not like Martin and suspected Martin of having an affair with Lori Nebola. Joedy Nebola described the vehicle in which Martin left, and the description was consistent with one of the vehicles described by Scholten.

Deputies obtained consent to search Lori Nebola’s property and discovered evidence of methamphetamine manufacture in and around the shed. In a garbage pit outside of the shed, the deputies discovered a plastic bag that contained a number of items typically used in the manufacture of methamphetamine and a checkbook deposit slip belonging to Martin. They also found methamphetamine in a nightstand in Lori Nebola’s bedroom.

Later on the same day, Joedy Nebola saw Martin drive by Joedy Nebola’s residence in Sandstone where he lived with his girlfriend. Based on Joedy Nebola’s reaction to seeing Martin, the girlfriend’s sister, who was at the residence, called 911 to report that Martin had threatened Joedy Nebola with a gun. Investigator Mathew Ludwig responded by driving to Joedy Nebola’s residence, where he learned that Martin had not, in fact, pointed a gun at Joedy Nebola.

In response to the 911 call, Deputy Scott Grice started driving to Lori Nebola’s residence because he felt that Martin might go there. On the way, Deputy Grice saw a vehicle that matched the description of one of the vehicles used by Martin. Deputy Grice stopped the vehicle, approached the driver’s side of the vehicle, and noticed a chemical odor coming from the vehicle. When the driver identified himself as Martin, Deputy Grice drew his weapon and ordered Martin and his passenger to put their hands up, get out of the vehicle, and lie on the ground. Deputy Grice handcuffed Martin and patted him down, asking Martin where the gun was. Martin said the gun was in a duffel bag in the back seat. Deputy Grice secured Martin and the passenger and searched the duffel bag, which contained a 9mm Rueger handgun loaded with a half-full magazine and one round in the chamber. Deputy Grice informed Martin that he was under arrest and called a tow-truck for Martin’s vehicle. Deputy Grice then performed what he described as an inventory search of Martin’s vehicle. When he opened the trunk, he noticed “an overwhelming smell of chemicals.” He found a propane tank, “hundreds of pills,” a damp filter containing a substance that was later determined to be methamphetamine, and another handgun that was unloaded and appeared to be inoperable. While Deputy Grice was performing the inventory search, he received the information that Martin had not brandished a gun when he drove by Joedy Nebola’s residence in Sandstone.

Martin was taken to the Pine County jail and given a Miranda warning. Martin exercised his right to remain silent. Martin was charged with three counts of first-degree controlled-substance crime, one count of fifth-degree controlled-substance crime, and one count of felon in possession of a firearm. The district court denied Martin’s motion to suppress his pre-Miranda statements and the evidence seized from the truck. The complaint was amended to include additional charges, and the matter was submitted to the district court for trial under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Martin guilty of fifth-degree possession of a controlled substance and sentenced him to one year and one day in jail, stayed with conditions. This appeal followed.

D E C I S I O N

Martin argues that the district court erred in denying his motion to suppress evidence supporting the charge against him because the evidence was seized in violation of constitutional guarantees against unlawful searches and seizures. “When reviewing pretrial orders on motions to suppress evidence, [this 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). When the facts are not disputed, this court “must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.” Id. We review de novo the question of whether a search or seizure is justified by reasonable suspicion or by probable cause. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

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 and seizures conducted without a warrant “are per se unreasonable . . . subject only to a few specifically established and well delineated exceptions.” In re Welfare of G.M., 560 N.W.2d 687, 692 (Minn. 1997) (quotation omitted). In this case, we conclude that the officer had authority to stop Martin’s vehicle and that after the stop, the search was justified under a number of exceptions to the warrant requirement.

We first examine the legality of the stop. Officers may make an investigative stop of a vehicle if the stop is justified by reasonable and articulable suspicion. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879 (1968). In reviewing the legality of a stop, we consider “the events surrounding the stop and consider the totality of the circumstances to determine whether the police had a reasonable and objective basis for the stop.” Schuster v. Comm’r of Pub. Safety, 622 N.W.2d 844, 846 (Minn. App. 2001) (quotation omitted). “A stop is lawful if police officers can articulate objective and specific facts that led them, during the course of their investigation, to reasonably suspect the particular person stopped was engaging in criminal activity.” Id. “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).

Before the stop, Deputy Grice had received two independent reports that Martin was manufacturing methamphetamine in a shed on Lori Nebola’s property. He confirmed that a meth lab existed on Lori Nebola’s property and discovered evidence connecting Martin with the meth lab. Deputy Grice also had information that Martin and Joedy Nebola had a confrontation at the meth lab during which Martin had reached for a handgun, and, at the time of the stop, Deputy Grice was immediately responding to a 911 report that Martin had just threatened Joey Nebola with a gun at Joedy Nebola’s residence in Sandstone. The totality of the circumstances supports more than a reasonable and articulable suspicion by Deputy Grice that Martin had been engaged in criminal activity that justified an investigatory stop. See Schuster, 622 N.W.2dat 846-847 (holding that an officer had a reasonable and objective basis to stop Schuster’s vehicle after receiving a report that Schuster had engaged in harassing behavior earlier in the day). The fact that Deputy Grice learned after the stop that Martin did not brandish a weapon during the confrontation reported in the 911 call does not affect the reasonableness of the stop.

Martin argues that the deputy’s suspicion was not reasonable because it was based on information supplied by unreliable informants. When assessing reliability, courts examine the credibility of the informant and the basis of the informant’s knowledge under the totality of the circumstances. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). Scholten gave information about Martin during a post-arrest interrogation regarding suspected possession of controlled substance, and Joedy Nebola candidly told the sheriff’s deputies that he did not like Martin and that he suspected that Martin was having an affair with his wife. Although these circumstances have some bearing on the reliability of the informants, nothing in the record suggests any connection between the two informants, and the information of each informant was based on independent personal observations that were corroborated. Martin was driving a vehicle described by each informant, equipment used to manufacture methamphetamine was found in the location described by each informant, and Martin was linked to the meth lab by evidence of a deposit slip. Also, despite the error made by the 911 caller in reporting that Martin had a gun when he threatened Joey Nebola, nothing in the record casts doubt on the credibility of the 911 caller’s report that Martin had been at Joedy Nebola’s residence and that his presence constituted a threat to Joedy Nebola. We conclude that Deputy Grice’s suspicion was based on sufficiently reliable information and was reasonable under the totality of the circumstances.

Martin argues that because he was immediately seized, the stop was not an investigatory stop governed by Terry,but an arrest that can only be justified if there was probable cause for arrest prior to the stop. “There is no bright-line test separating a legitimate investigative stop from an unlawful arrest.” State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). To determine whether officers arrested a suspect, we consider “the aggressiveness of the police methods and the intrusiveness of the stop against the justification for the use of such tactics, i.e., whether the officer had a sufficient basis to fear for his or her safety.” Id.

The supreme court has recognized that “if an officer making a reasonable investigatory stop has cause to believe that the individual is armed, he is justified in proceeding cautiously with weapons ready.” State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999) (quotation omitted). Handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest. Id. At the time of the stop in this case, Deputy Grice had reason to believe that Martin was armed. We conclude that the deputy’s use of force did not transform this stop into an arrest. Furthermore, even if the stop could be characterized as an arrest, we conclude that Deputy Grice had probable cause to arrest Martin.

“[P]robable cause to arrest requires police to have a reasonable belief that a certain person has committed a crime.” G.M, 560 N.W.2d at 695. In determining whether there was probable cause to arrest, we consider “whether the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” Id. Martin argues that “[t]he facts and circumstances leading up to the stop were not ‘sufficient to warrant a prudent [person] in believing that [Martin] had committed or was committing an offense.’” But as discussed above, we disagree, and we further conclude that the same facts that support a conclusion that Deputy Grice had reasonable suspicion to conduct a Terry stop also support a conclusion that the deputy had probable cause to arrest Martin before the stop.

Turning to the legality of the search, we conclude that the search was justified under several exceptions to the warrant requirement. Police may conduct a warrantless search of “a person’s body and the area within his or her immediate control” incident to a lawful arrest. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)). Additionally, police may conduct a warrantless search of a vehicle’s passenger compartment, even when not incident to arrest, if an officer has a reasonable and articulable belief that a suspect is dangerous and may have immediate access to control of weapons. Id. (citing Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983)). And the police may search an automobile without a warrant if they have probable cause to believe that the vehicle is carrying contraband. Munson, 594 N.W.2d at 135. An inventory search of a vehicle that is going to be towed is also permissible. State v. Volkman, 675 N.W.2d 337, 342 (Minn. App. 2004).

Deputy Grice testified that after he retrieved the handgun in the location described by Martin and placed Martin under arrest, he conducted an inventory search of the vehicle, which was going to be towed. Before formally placing Martin under arrest, however, Grice had noticed a strong chemical odor coming from the vehicle, which, coupled with his reasonable suspicion that Martin was involved in the manufacture of methamphetamine, gave rise to probable cause to believe that the vehicle contained contraband. And if Martin was immediately placed under arrest at the inception of the stop, the search was justified as incident to arrest.

Martin argues that because he was under arrest and had not been given a Miranda warning, his answer to Deputy Grice’s question about where the gun was located should have been suppressed as obtained in violation of his constitutional right against self-incrimination. “Statements made during a custodial interrogation cannot be admitted into evidence unless the suspect is given the Miranda warning and intelligently waives the right against self-incrimination.” State v. Caldwell, 639 N.W.2d 64, 67 (Minn. App. 2002) (citing Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612 (1966)), review denied (Minn. March 27, 2002). “‘Custodial interrogation’ is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn. App. 2000) (quotation omitted).

There is an exception to the Miranda requirement that “allows police officers faced with an immediate threat to public safety to ask questions necessary to protect the public or themselves before giving a Miranda warning.” Caldwell, 639 N.W.2d at 67. “[T]he application of this narrow exception must be decided on a case-by-case basis.” Id at 68. In Caldwell, we held that under the public-safety exception, police were justified in questioning a suspect about the location of a gun prior to giving a Miranda warning, where the suspect had reportedly threatened someone earlier in the day, police responded within minutes of receiving the call, and police did not find any weapons on the suspect after performing a pat-down search. Id. at 68-69. Similarly, in this case, Deputy Grice was responding to a call that Martin had just threatened Joedy Nebola with a gun, he was aware that Martin and Nebola had earlier been in a confrontation in which Martin reportedly had access to a gun, and he did not find any weapon on Martin while patting him down during the investigative stop. When Deputy Grice did not immediately find the gun on Martin, he was justified in asking about the location of the gun for his personal safety and that of the public. The district court did not err in concluding that appellant’s pre-Miranda statement regarding the location of the gun was admissible.

Affirmed.