Opinion
No. C9-01-2019
Filed July 16, 2002.
Appeal from the District Court, Hennepin County, File No. 00095835.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, (for respondent)
Deborah K. Ellis, and Lisa Lodin Peralta, (for appellant)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this appeal from a conviction of a first-degree controlled substance offense, appellant DeVord Allen argues that (1) police illegally stopped his vehicle; (2) the state waived the claim that the stop was justified because the vehicle's stereo exceeded noise limitations; (3) the district court's finding that the officers detected a noise violation was clearly erroneous; (4) an informant's tip did not support the stop where there was no information on the reliability of the informant or his basis of knowledge; (5) police did not sufficiently corroborate the tip to provide articulable suspicion; (6) police lacked articulable suspicion that appellant might be armed and dangerous so as to support a frisk; and (7) the search of the vehicle, including a drug-sniffing dog's sniff of the interior of the vehicle, was not supported by probable cause. We affirm.
FACTS
On October 4, 2000, Minneapolis Police Officer Kelly O'Rourke received the following information from an informant:
[T]here is a guy on Lake Street that always drives around in a brand new maroon Ford Excursion. It's got really fancy gold rims. You can't miss it. He's a drug dealer, and he always drives around with a gun in the car for protection.
The informant described the drug dealer's race and gender and stated that he hung out in the area of Lake Street and Chicago Avenue in Minneapolis but did not provide the drug dealer's name or any other identifying information. The informant stated that he knew the guy was a drug dealer and carried a weapon in his vehicle "from being part of the street life." O'Rourke testified that he assumed the informant had seen the dealer with drugs but did not recall whether the informant had actually stated that he saw the dealer with drugs. The informant provided the information after police discovered drugs on his person and O'Rourke advised him that the police were "more concerned about guns than * * * the little amount of dope you have on you" and asked what information he had.
O'Rourke had had one previous contact with the informant, when the informant had provided accurate information on a weapons case. O'Rourke had also referred the informant to narcotics officers and knew that the narcotics officers had used him. But O'Rourke did not know anything about the information provided to narcotics officers or its reliability.
On October 6, 2000, O'Rourke and his partner, Officer Billy Jack Peterson, saw a truck matching the description provided by the informant on Chicago Avenue near Lake Street. The truck pulled over and parked. The officers drove their car around the block and parked in a lot from which they could see the truck. Both officers testified that they heard loud music coming from the truck. O'Rourke testified that he did not recall when he first heard the music coming from the truck but that he could possibly have been less than 50 feet away. Peterson testified that he heard the music from a half to three-quarters of a block away. Peterson testified that he could hear the bass booming in the truck, the kind of boom that rattles windows.
When the truck pulled out of its parking space, the officers pulled up behind it and stopped it. O'Rourke testified that they stopped the truck based on the information about a gun in it and because of the loud music. O'Rourke testified that he and Peterson approached the truck with their guns out, but down to the side, due to the information about a gun in the truck. Peterson approached the driver, and O'Rourke approached the passenger side. O'Rourke heard the driver, later identified as Allen, yelling at Peterson and saw him leaning towards the middle of the truck. Peterson described Allen as irate. Peterson testified that Allen said, "What the hell are you stopping me for? For nothing. That's what."
Peterson requested Allen's driver's license and proof of insurance. Allen said something to the effect of "I'm going to give you the shit anyways" and handed Peterson his proof of insurance. When Peterson again requested Allen's driver's license, Allen reached towards the truck's center console. Not knowing what Allen was reaching for and knowing that a center console is a common place to store weapons, Peterson had Allen step out of the truck and instructed him to go over to the squad car. Allen refused to go to the squad car and resisted Peterson's efforts to escort him there.
Allen continued being uncooperative, so Peterson handcuffed him before pat searching him. During the pat search, Peterson felt what he thought was a large amount of cash in a pocket. Allen told Peterson that he had $4,000 in cash on his person. O'Rourke testified that based on the large amount of cash, Allen's behavior during the stop, and the information provided by the informant, the officers decided to search Allen's truck for drugs.
During the stop, a hostile crowd began gathering in a parking lot across the street. The officers requested the assistance of back-up and a canine unit. Before the canine unit arrived, O'Rourke conducted what he described as a cursory search of the truck looking under the seats and in the trunk and back seat.
When the canine unit arrived, the dog sniffed around the exterior of Allen's truck. The dog's partner, Officer Yvonne Edwards, testified that the manner in which the dog air scented from the truck's exterior indicated to her that narcotics were present inside the truck. Edwards then placed the dog inside the truck, and he indicated the presence of narcotics in the console.
Allen testified that the stereo system in his truck had huge speakers and a sound amplifier. Harrison Hollivay testified on Allen's behalf. Hollivay and Allen had grown up in the same neighborhood and had been friends since childhood. Hollivay described the stereo system as a "loud system" and recalled being in the truck when it was playing "real loud."
Allen denied playing loud music before the stop occurred. Hollivay testified that Allen drove by him just before the stop and he did not hear any loud music. Precilla Rhines, who was stopped at an intersection when Allen's truck and the squad car passed by, also testified on Allen's behalf. Rhines testified that she did not hear any loud music coming from Allen's truck. But Rhines also testified that she did not see Allen's truck until "the officers had already stopped it." She claimed that even though she had not seen Allen's truck earlier, she knew
that there was no loud music coming from [Allen's] truck because when the truck passed me as I was sitting at the corner, and when there is loud music going on, it's you can basically hear and it's got a thumping type sound. There was nothing coming from that truck.
DECISION
When reviewing pretrial orders on motions to suppress evidence, we 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). But this court applies the "clearly erroneous" standard of review to the underlying factual findings. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
1. Noise violation
Under the Fourth Amendment, to make a lawful traffic stop, a law enforcement officer must have a particularized and objective basis for suspecting the particular persons stopped of criminal activity. * * * Our cases, however, do not require much of a showing in order to justify a traffic stop. Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.
George, 557 N.W.2d at 578. A Minneapolis ordinance prohibits amplified music emanating from a motor vehicle that is audible within 50 feet of that motor vehicle. Minneapolis Code of Ordinances § 389.65(c)(6).
Allen first contends that the state waived the issue of whether the stop was justified by violation of the noise ordinance. At the Rasmussen hearing, both O'Rourke and Peterson testified about the loud music emanating from Allen's truck, and O'Rourke testified that the loud music was one of the reasons for stopping the truck. Following the Rasmussen hearing, both parties submitted memoranda to the district court. In Allen's memorandum, he conceded that if music was coming from his truck that was audible more than 50 feet away, the stop was justified by the violation of the noise ordinance. Given Allen's concession, resolution of the issue simply required a credibility determination by the district court, so the state did not need to make any legal argument. In its memorandum, the state did note that the officers could hear loud music coming from the truck when they initiated the traffic stop. In its order denying the motion to suppress, the district court made specific findings on the credibility of the testimony about whether Allen was playing loud music and also specifically found that the stop was justified by violation of the noise ordinance. The state did not waive the noise-violation issue.
Regarding the merits, Allen argues that the evidence does not support the district court's finding that he violated the noise ordinance.
At a pretrial hearing on suppression issues, one of the trial court's functions is to act as a fact finder and judge the credibility of the witnesses and evidence.
City of West St. Paul v. Smith, 404 N.W.2d 16, 18 (Minn.App. 1987) (citation omitted).
The district court's finding that Allen violated the noise ordinance is supported by Peterson's testimony that he could hear music coming from Allen's truck from a half to three-quarters of a block away and his testimony about the window-rattling bass. O'Rourke also testified that the music was loud, although he did not recall how far away from the truck he was when he first heard the music.
The district court specifically found the officers' testimony more credible than that of Allen, Hollivay, and Rhines. The court explained:
Ms. Rhines repeatedly testified that she only saw [Allen's] vehicle after it had been pulled over and the officers had already exited their vehicle. Thus, her testimony that she did not hear any loud music coming from [Allen's] vehicle does not contradict the testimony of Officers O'Rourke and Peterson.
* * * Mr. Hollivay testified that he did not hear any loud music coming from [Allen's] vehicle on the morning of October 6th. However, Mr. Hollivay also stated that he was a lifelong friend of [Allen] and would not want [Allen] to go to prison because of the current charges.
We defer to the district court's assessment of witness credibility. State v. Miranda, 622 N.W.2d 353, 358 (Minn.App. 2000). Also, as the district court found, the type of stereo system in Allen's truck lent credence to the officers' testimony about the loud music.
Citing discrepancies in the officers' testimony about when they called for back-up and when they called for the canine unit, Allen argues that the officers called for the canine unit before they discovered the cash on his person. Therefore, Allen continues, because "the officers gave false testimony about the important matter of the timing of events in relation to the search of the vehicle," their remaining testimony was incredible as a matter of law. Both officers unequivocally testified that the decision to search Allen's truck was not made until after they discovered the $4,000 in cash on his person. Both officers testified that the call for the canine unit was not made until after the cash was discovered. O'Rourke testified that because a crowd was gathering, he called for back-up as Peterson ordered Allen out of the truck, which would mean that the call for back-up was made before the call for the canine unit. But log sheets recording the time of calls showed that the canine unit was called for at 1:08 a.m. and back-up was requested at 1:11 a.m. The stop began at 12:52 a.m.
Allen's irate behavior and the gathering crowd created a stressful, potentially dangerous, situation. The calls for back-up and the canine unit were made within minutes of each other. Under the circumstances, the discrepancy between O'Rourke's recollection of the sequence of events and the actual sequence of events was minor. Minor discrepancies in testimony are credibility issues for the fact-finder to resolve. State v. Holden, 414 N.W.2d 516, 520 (Minn.App. 1987); State v. Norregaard, 380 N.W.2d 549, 552 (Minn.App.), aff'd as modified 384 N.W.2d 449 (Minn. 1986). The evidence supports the district court's finding that the officers called for the canine unit after they discovered the cash.
The officers' testimony about the timing of events did not make their remaining testimony incredible as a matter of law.
2. Informant's tip
The district court also concluded that notwithstanding the noise violation, the informant's tip justified the stop. A stop is justified when supported by a reasonable suspicion of criminal activity. State v. Cook, 610 N.W.2d 664, 668-69 (Minn.App. 2000). The reasonable-suspicion standard can be satisfied by showing that the stop "was not the product of mere whim, caprice, or idle curiosity." State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).
When police rely on information provided by an informant, "all of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis." State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). Police may rely on an informant's tip if the tip has sufficient indicia of reliability. In re Welfare of G.M., 560 N.W.2d 687, 690-91 (Minn. 1997). When assessing reliability, courts examine the credibility of the informant and the basis of the informant's knowledge in light of all the circumstances. Id.
Courts are reluctant to believe the typical "stool pigeon" who is arrested and who, at the suggestion of the police, agrees to cooperate and name names in order to curry favor with the police.
State v. Ward, 580 N.W.2d 67, 71-72 (Minn.App. 1998). But an informant's reliability may be demonstrated where the informant has previously given police correct information. Id. at 71. In addition, an informant's reliability, and the reliability of the information provided, can be established by police corroboration. Id. The independent corroboration of even innocent details of an informant's tip may support a finding of probable cause. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).
In Munson, police received a telephone call from a CRI who told them that within one and one-half to two hours a rented, green Bronco or Jeep-type vehicle with Minnesota license plates would arrive at a certain address. Id. The informant also identified two of the occupants of the vehicle and said that the vehicle would be coming from Chicago and contained a large amount of crack cocaine hidden somewhere inside or underneath the vehicle. Id. The officer stated that the informant "has been used over several years successfully." Id. at 136. Also, before making a stop, the police independently corroborated that the vehicle fit the informant's description, was registered to a rental agency, and arrived at the designated address within 20 minutes of the expected time. Id. The supreme court held that "corroboration of several specific details of the [CRI's] tip did provide the police with the reasonable articulable suspicion of criminal activity that is needed to execute a valid Terry stop of the Blazer's occupants for further investigation." Id. The court noted that "[h]aving a proven track record is one of the primary indicia of an informant's veracity." Id.
In this case, the district court analyzed the issue as follows:
Officer O'Rourke gained information relating to [Allen's] vehicle less than two days before [Allen's] arrest. This information was gained in a face-to-face encounter with an informant from whom Officer O'Rourke had received information that led to an arrest in a previous case in which Officer O'Rourke was directly involved. In addition, Officer O'Rourke had referred this same informant to narcotics investigators in other cases. Thus, under Munson, "one of the primary indicia of reliability" is present in this case * * *.
Officer O'Rourke's prior use of this informant and knowledge of narcotics information as being derived from "being part of the street life." Although further specificity would be desirable, the informant's record, both with Officer O'Rourke and others, indicates that the informant's method of gaining information had worked sufficiently well in the past and tends to support the informant's credibility in this case.
Moreover, the officers had an opportunity to evaluate and confirm several facts conveyed by the informant. First, the informant identified a distinctive vehicle as that from which narcotics were being dealt and a gun was being transported. This vehicle — described as a brand new maroon Ford Excursion with fancy gold rims and one that you "can't miss" — was observed by Officers O'Rourke and Peterson. Further, the informant's tip named a particular area — Chicago and Lake — as that where the narcotics sales were occurring. The officer's observation of this distinctive vehicle in this specified area lent credibility to the informant's tip.
We agree with the district court's analysis.
3. Pat search
Police may stop and frisk a person when: (1) they have a reasonable, articulable suspicion that the suspect might be engaged in criminal activity; and (2) they reasonably believe the suspect might be armed and dangerous. * * * If both of these factors are present, police may conduct a limited search of the outer clothing of a suspect in an attempt to discover weapons that might be used to assault officers.
State v. Richmond, 602 N.W.2d 647, 651 (Minn.App. 1999) (citations omitted), review denied (Minn. Jan. 18, 2000). The Richmond court held that a protective search was justified by the suspect's furtive movement, nervous and fidgety appearance, and an inability or unwillingness to answer officer's questions during a stop. Id.
Allen exhibited a hostile attitude towards the officers and resisted Peterson's efforts to escort him to the squad car. Before Allen got out of his car, Peterson saw him reach towards the center console, which Peterson knew was a common place to store weapons. Moreover, the officers had been told by the informant that the driver of the Excursion always carried a gun. Under Richmond, the pat search was justified. Id. See also State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971) (listing a motorist assuming a hostile and threatening attitude when stopped as an example of a justification for a limited weapons search).
4. Canine sniff
The supreme court recently held that in order to lawfully conduct a narcotics-detection dog sniff around the exterior of a motor vehicle stopped for a routine equipment violation, a law enforcement officer must have a reasonable, articulable suspicion of drug-related criminal activity.
State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002).
In this case, before the canine sniff began, the informant's tip had been corroborated by the discovery of the large amount of cash on Allen. In addition, Allen displayed a hostile, combative attitude towards the officers. Those facts were sufficient to give rise to a reasonable, articulable suspicion of drug-related criminal activity.
Allen argues that even if the canine sniff of the exterior of his truck was legal, the sniff of the interior constituted an illegal search. Allen argues that the dog did not indicate the presence of narcotics until after he was placed inside the truck. Allen's argument is contrary to Edwards's testimony. Edwards testified:
Q. Do you recall if the dog indicated on anything [when searching the exterior of the vehicle]?
A. When I was searching the exterior of the vehicle, the driver's door window was down. Canine Bruno got up on his hind legs and was air scenting into the vehicle, which in the past has indicated to me that there is a narcotics present inside.
Q. Okay. And what do you mean by air scenting?
A. The dog is trying to locate a scent, so he works very hard to figure out where the source is coming from. When he was doing that, he was looking for the source of what he was searching for.
Q. So at the time that he was in the exterior of the vehicle, he clearly was smelling something?
A. Yes. He was telling me that there was something inside that he wanted to investigate.
Q. * * *How far away can a dog be from a source and still be able to do — to indicate or do a scent source smell?
A. * * * He can smell the odor outside of the vehicle or even near a car.
Bruno was a certified narcotics dog, trained to scent crack cocaine, powder cocaine, methamphetamine, and marijuana. In October 2000, Bruno and Edwards had been partners for about one and a half years. Bruno's air scenting from the truck's exterior in a manner that indicated the presence of drugs inside the truck was sufficient to establish probable cause to search the truck. See State v. Pederson-Maxwell, 619 N.W.2d 777, 781 (Minn.App. 2000) (holding dog's reaction when sniffing exterior of vehicle, which alerted officer to the presence of controlled substances, established probable cause that there was contraband in the trunk of the car). Affirmed.
Allen also contends that O'Rourke's initial search of the interior of his vehicle was illegal. But Allen concedes that nothing incriminating was discovered during that search, so, even it was illegal, it did not cause Allen any harm or prejudice.