Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2100 Government Center, Minneapolis, MN 55487 (for Appellant)

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue, Suite 840, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.

Respondent Willie Cager was arrested for fifth-degree possession of cocaine and unlawful possession of a firearm after he and his car were identified by an informant and searched. The state appeals from a pretrial order suppressing the evidence police found in respondent's car and dismissing the complaint for lack of probable cause supporting the complaint. Because we conclude that the informant's tip was reliable and that the police had probable cause to search and arrest respondent, we reverse the trial court's suppression order. Further, we reject respondent's claim that the order dismissing for lack of probable cause is nonappealable, and that the state's appeal of the suppression order was untimely. Finally, we remand for a determination of whether the amended complaint now includes essential facts constituting the narcotics offense.

Respondent also claims that the appeal of the suppression order is untimely because it did not occur within five days of the state's receiving the pretrial order as required by Minn. R. Crim. P. 28.04, subd. 2(8). During the five-day period, however, the state filed a motion for reconsideration. For pretrial appeals by the state in criminal proceedings, "a timely motion for clarification or rehearing extends the appeal time period." State v. Wollan, 303 N.W.2d 253, 255 (Minn. 1981); see State v. Montjoy, 366 N.W.2d 103, 107-08 (Minn. 1985) ("omnibus court" may entertain motion to reopen case before time period for pretrial appeal expires). Because the notice of appeal was filed within three days of the order denying reconsideration of the initial pre-trial order, this appeal is timely. See Montjoy, 366 N.W.2d at 107 (public policy reason for allowing extension of appeal period during pendency of rehearing or clarification motion is to allow district court to correct its errors).

In this case, any probable cause determination depended on the reliability of the tip provided by the informant. See id. at 691 (information supporting investigative stop may be based on reliable tip). Information provided by an informant has probative value if the informant is reliable or acquires the information in a reliable manner. See State v. Filipi, 297 N.W.2d 275, 277 (Minn. 1980) (informant's tip may be used to establish probable cause if informant acquires information in "reliable manner" and police believe informant is credible or information is "otherwise reliable"). Thus, even if the informant is not reliable, the information provided by the informant may be reliable if it is corroborated by other information supporting the tip. Id.

The state concedes that the informant was not reliable because he had not provided information previously to the police. The state nevertheless argues that corroborating information supported the reliability of the tip. We agree. This informant set up a late-night drug deal with respondent in a phone conversation conducted while he was in the presence of police. During the conversation, the informant stated that he would buy cocaine and that the sale would occur in the next 10 to 15 minutes at an apartment complex parking lot. After the telephone conversation, the informant provided police with respondent's first name and a description of respondent and his vehicle, and told police that respondent could be carrying a gun.

Within the short time agreed upon, respondent was observed at the apartment complex, and both he and his vehicle matched the descriptions provided by the informant. There was some testimony at the Rasmussen hearing from which it could be inferred that the informant also identified respondent at the scene. Police approached respondent's vehicle and verified respondent's identity, including that his first name was "Willie." We conclude that at this point police had probable cause to conduct a search because there was a fair probability that they would find contraband in respondent's vehicle. See Gates, 462 U.S. at 246, 103 S. Ct. at 2336; McCloskey, 453 N.W.2d at 703. We view this case as analogous to Filipi, in which the supreme court concluded that where the informant/drug buyer's hearsay tip came "in a reliable manner--direct dealings with [the] defendant" and "independent information obtained prior to [the] defendant's arrest corroborated the hearsay," the police had probable cause to stop the defendant's car and arrest him as he drove to a controlled drug sale that had been arranged by the informant. Filipi, 297 N.W.2d at 276-77.

Respondent argues that the corroborative facts here were "easily obtained facts and conditions which by themselves are inadequate to support a finding of probable cause." See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (corroborating evidence included only drug seller's address and vehicle description without information on drug transaction) (citations omitted). We disagree. In this case, the police observed direct communication between the informant and respondent, and the information provided by the informant was verified prior to respondent's arrest.

Under these circumstances, sufficient corroborative facts existed to credit the informant's tip. See State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (review of pretrial suppression order includes independent review of facts to determine whether evidence should be suppressed); State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987) (to merit reversal of pretrial order, appellant must show "clearly and unequivocally" that trial court erred and that "the error will have a critical impact on the outcome of the trial"). We therefore reverse the trial court's suppression order.

Although the state amended the complaint within seven days of dismissal of the case, the trial court apparently did not consider the amendment in denying the state's motion for reconsideration. See Minn. R. Crim. P. 17.06, subd. 4(3) (if dismissal allowed because of curable defect, state not barred from prosecuting same offense under new complaint filed within seven days of dismissal). As the trial court had no opportunity to rule on the amended complaint, we remand this issue for a ruling by the trial court.

Reversed and remanded.