This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-859

State of Minnesota,

Respondent,

vs.

Willie Cager,

Appellant.

Filed December 30, 1997

Affirmed

Holtan, Judge**

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

Hennepin County District Court

File No. 96025181

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jay Heffern, Minneapolis City Attorney, Kenneth R. Frantz, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

William E. McGee, Hennepin County Chief Public Defender, Peter W. Gorman, Assistant Public Defender, Chela A. Guzmán, Certified Student Attorney, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401-0809 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.

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

HOLTAN, Judge

Appellant appeals his conviction by the trial court, based on stipulated facts, of carrying a pistol without a permit, Minn. Stat. § 624.714, subd. 1 (1996), contending that the (1) stop was invalid, (2) police lacked probable cause to arrest him, and (3) seizure of items from the vehicle was invalid. We affirm.

FACTS

A reliable informant told the police that a drug transaction involving a firearm would occur. He provided a time and place and described the vehicle and number of passengers. On March 27, 1996, the police, while on surveillance, observed the vehicle and passengers at the place described by the informant. The police officers stopped the vehicle in which appellant was a passenger, after observing what looked like a hand gesture or exchange. The officers arrested appellant and recovered a stolen handgun and a baggie of cocaine, which were in plain view in the vehicle.

Appellant was charged with carrying a pistol without a permit, Minn. Stat. § 624.714, subd. 1. At the Rasmussen hearing, the trial court denied appellant's motions to suppress and found all of the state's evidence admissible at trial. Appellant was convicted of the charged crime after a court trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The trial court imposed a sentence of 180 days which was stayed for two years on the condition that appellant not commit any further drug or gun offenses. This appeal followed.

D E C I S I O N

In reviewing a trial court's denial of motions to suppress evidence where the facts are not in dispute, this court "may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted).

Reasonable Basis for the Stop

The Fourth Amendment protects individuals from unlawful searches and seizures. U.S. Const. Amend. IV. To safeguard this Fourth Amendment protection, the Supreme Court in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85 (1968), held that police must have a reasonable articulable suspicion that "criminal activity may be afoot" to justify stopping a person. The basis for the stop must be more than just a mere whim. Id. at 21, 88 S. Ct. at 1880. A reliable tip may provide reasonable suspicion to justify a stop. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 554 (Minn. 1985).

Appellant contends that the police did not have a reasonable basis for the stop because the informant's tip was not reliable. The reliability of the tip is based on the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983). In a similar case, State v. Pealer, 488 N.W.2d 3, 5 (Minn. App. 1992), this court found reliable a tip from a known confidential informant that named the driver and described the vehicle and location where the individual could be found.

In this case, the police had information from an informant who had been proven reliable on numerous occasions where guns and drugs were found and arrests were made. The informant had described the vehicle, the location, and the number of passengers, and stated that a drug transaction involving a firearm would take place. The police corroborated this information when they observed the described vehicle carrying three people enter the location. The police also observed what they believed to be a drug transaction. A man walked over to the parked vehicle and made what looked like a hand gesture or exchange. At this point, the police had reasonable suspicion to stop the vehicle and its occupants. The stop was not the basis of a mere whim. It was based on corroborated information from a known and proven reliable informant. Thus, the stop was valid.

II. Seizure of Items in Plain View

Appellant's claim that the search was invalid as incident to an unlawful arrest is immaterial because the items were discovered in plain view.[3]

Hennepin County District Court

File No. 96025181

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jay Heffern, Minneapolis City Attorney, Kenneth R. Frantz, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

William E. McGee, Hennepin County Chief Public Defender, Peter W. Gorman, Assistant Public Defender, Chela A. Guzmán, Certified Student Attorney, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401-0809 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.

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

HOLTAN, Judge

Appellant appeals his conviction by the trial court, based on stipulated facts, of carrying a pistol without a permit, Minn. Stat. § 624.714, subd. 1 (1996), contending that the (1) stop was invalid, (2) police lacked probable cause to arrest him, and (3) seizure of items from the vehicle was invalid. We affirm.

FACTS

A reliable informant told the police that a drug transaction involving a firearm would occur. He provided a time and place and described the vehicle and number of passengers. On March 27, 1996, the police, while on surveillance, observed the vehicle and passengers at the place described by the informant. The police officers stopped the vehicle in which appellant was a passenger, after observing what looked like a hand gesture or exchange. The officers arrested appellant and recovered a stolen handgun and a baggie of cocaine, which were in plain view in the vehicle.

Appellant was charged with carrying a pistol without a permit, Minn. Stat. § 624.714, subd. 1. At the Rasmussen hearing, the trial court denied appellant's motions to suppress and found all of the state's evidence admissible at trial. Appellant was convicted of the charged crime after a court trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The trial court imposed a sentence of 180 days which was stayed for two years on the condition that appellant not commit any further drug or gun offenses. This appeal followed.

D E C I S I O N

In reviewing a trial court's denial of motions to suppress evidence where the facts are not in dispute, this court "may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted).

Reasonable Basis for the Stop

The Fourth Amendment protects individuals from unlawful searches and seizures. U.S. Const. Amend. IV. To safeguard this Fourth Amendment protection, the Supreme Court in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85 (1968), held that police must have a reasonable articulable suspicion that "criminal activity may be afoot" to justify stopping a person. The basis for the stop must be more than just a mere whim. Id. at 21, 88 S. Ct. at 1880. A reliable tip may provide reasonable suspicion to justify a stop. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 554 (Minn. 1985).

Appellant contends that the police did not have a reasonable basis for the stop because the informant's tip was not reliable. The reliability of the tip is based on the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983). In a similar case, State v. Pealer, 488 N.W.2d 3, 5 (Minn. App. 1992), this court found reliable a tip from a known confidential informant that named the driver and described the vehicle and location where the individual could be found.

In this case, the police had information from an informant who had been proven reliable on numerous occasions where guns and drugs were found and arrests were made. The informant had described the vehicle, the location, and the number of passengers, and stated that a drug transaction involving a firearm would take place. The police corroborated this information when they observed the described vehicle carrying three people enter the location. The police also observed what they believed to be a drug transaction. A man walked over to the parked vehicle and made what looked like a hand gesture or exchange. At this point, the police had reasonable suspicion to stop the vehicle and its occupants. The stop was not the basis of a mere whim. It was based on corroborated information from a known and proven reliable informant. Thus, the stop was valid.

II. Seizure of Items in Plain View

Appellant's claim that the search was invalid as incident to an unlawful arrest is immaterial because the items were discovered in plain view.[1] The plain view doctrine permits the warrantless seizure of an object "if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right to access it." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136-37 (1993). In this case, the police viewed the butt of the gun tucked under the seat and the baggie of cocaine through the windows of the car and the open car doors. Based on the officer's past experience, the incriminating nature of the items was immediately apparent. The officer could lawfully enter the car to seize the items because the officer had probable cause to believe there was a gun under the seat and that the baggie contained cocaine.[2] Thus, the seizure of the items was valid.

Affirmed.

[ Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

1] Moreover, appellant's contention that the police lacked probable cause to arrest him because they did not view the gun and drugs until after he was arrested lacks merit. Defendant's furtive conduct, when viewed in the context of the information supplied by the informant and the observation of the drug transaction established probable cause to make the arrest. See Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904 (1968) (stating that "[d]eliberately furtive actions and flight at the approach of strangers or law officers * * * are proper factors to be considered in the decision to make an arrest").

[2] Alternatively, the seizure of the items could be upheld under the automobile exception to the warrant requirement because the police had probable cause to believe the car contained contraband. Carroll v. United States, 267 U.S. 132, 159-62, 45 S. Ct. 280, 287-88 (1925); Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S. Ct. 1975, 1980-81 (1970).