Opinion
No. A03-591.
Filed February 3, 2004.
Appeal from the District Court, Polk County, File No. T9-02-4518.
Steven M. Light, Lindsey D. Haugen, Larivee Light, Ltd., Grand Forks, Nd, (for appellant).
Mike Hatch, Attorney General, St. Paul, Mn, and Greg Widseth, Polk County Attorney, Crookston, Mn, (for respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from a conviction for fifth-degree controlled substance offense, appellant argues that a police informant's persistent efforts to persuade her to buy marijuana constituted outrageous government conduct in violation of her due-process rights. We conclude the government's conduct did not violate appellant's due-process right. We affirm.
FACTS
In August 2002, an individual known to the Polk County Sheriff's office as a confidential informant contacted appellant's son Mike, and Mike arranged to buy an ounce of marijuana (the record does not indicate what amount of money was to be paid) from the informant. On August 27, 2002, a few days after the informant's initial contact with Mike, the informant tried to contact Mike by calling Mike several times at his residence. Mike tried to respond to the informant's calls but was unsuccessful. Eventually, the informant contacted Mike at his residence, and spoke to Mike and his mother, appellant Linda Ann Jensen, via speakerphone. During the conversation between Mike and the informant, appellant spoke up and indicated a wish to purchase some marijuana. The informant quoted her a price of $300 for a quarter of a pound of marijuana. Appellant immediately told the informant that she had only $250 to spend. The informant quickly dropped the price from $300 to $250 (amazing how that works!), and appellant then agreed to the deal.
Later that day, at approximately 4:00 p.m., appellant and Mike, with Mike's 20-month old son, met the informant and an undercover police officer at the Northland Motel in Crookston. At the motel, appellant discussed buying a quarter of a pound of marijuana from the informant and the undercover officer. Appellant paid the informant the agreed-upon $250 for the marijuana and placed it in her purse. Immediately after the exchange, law-enforcement officers entered the motel and placed appellant and Mike under arrest. Appellant was subsequently charged with one count of fifth-degree possession of marijuana with intent to sell, one count of fifth-degree possession of marijuana, and one count of conspiracy.
Appellant filed a motion to dismiss the charges against her, arguing that the government's conduct was so outrageous that it violated her due-process rights. After a hearing, the district court denied appellant's motion. Appellant subsequently pleaded not guilty, submitted the case to the court, and stipulated to the state's facts pursuant to the Lothenbach procedure. The district court found appellant guilty of one count of conspiracy and one count of fifth-degree possession of marijuana, and acquitted appellant of fifth-degree possession of marijuana with intent to sell. The district court sentenced appellant to two stayed 12-month-and-one day concurrent sentences. Appellant was ordered to serve a mandatory minimum of six months at the Northwest Regional Corrections Center. This appeal follows.
DECISION
Appellant argues that the confidential informant's conduct was so outrageous that it violated her due-process rights. We disagree. The due-process defense is a matter for the district court to decide as a matter of law. State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). This court is not bound by and need not give deference to a district court's decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (citing Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984)).
The concept of fundamental fairness inherent in the guarantee of due process prevents the state from obtaining a conviction in cases where police involvement in instigating or participating in the commission of a crime reaches a demonstrable level of outrageousness. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643 (1973); State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978). The "due process" defense focuses on police conduct. See State v. James, 484 N.W.2d 799, 801 (Minn. App. 1992), review denied (Minn. June 30, 1992). In contrast, the "entrapment" defense focuses on the defendant's subjective "predisposition." State v. Grilli, 304 Minn. 80, 89-91, 230 N.W.2d 445, 452-53 (1975).
Minnesota courts recognize the due-process defense, primarily in the criminal arenas of prostitution and drugs. See, e.g., Morris, 272 N.W.2d at 35-36 (conduct of undercover officer in exposing himself at request of suspected prostitute to show he was not a police officer was not sufficiently outrageous to violate due process and the court upheld defendant's conviction for engaging in prostitution); James, 484 N.W.2d at 802-03 (no due-process violation when police conduct street level "reverse sting" operation by which undercover police officer posed as drug dealer in front of known "crack" house and sold drugs to those who approached him). Police "over-involvement" is difficult to show in narcotics and other contraband prosecutions. Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7 (1976). When a defendant raises a due-process issue on appeal relating to a drug crime, this court applies the four-factor test in People v. Isaacson, 378 N.E.2d 78 (N.Y. 1978). See James, 484 N.W.2d at 802.
In Isaacson, the use of an informant, whom police had beaten and deceived into thinking he was facing a stiff prison sentence, causing him to desperately seek out the defendant, did violate the defendant's right to due process. Isaacson, 378 N.E.2d at 84. The police instructed the informant to play on the sympathy of the defendant by repeatedly requesting that Isaacson bring drugs to New York, as the informant was in deep trouble with the police and needed money to secure a lawyer. Id. at 80. Police also instructed the informant to make sure that more than one ounce of cocaine was involved in the sale and to entice the defendant into New York from Pennsylvania in order to consummate the sale. Id. at 79-81. The New York Court of Appeals determined that the police conduct reached the level of outrageousness sufficient to invoke the due-process protections in the New York State Constitution. Id. at 81. In reversing the conviction, the New York Court of Appeals articulated four factors applicable to the due process inquiry:
(1) Whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity;
(2) Whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice;
(3) Whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and
(4) Whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.
Id. at 82-83. Applying the Isaacson factors, this court upheld a conviction obtained through a "reverse buy" operation in which an undercover officer stood in front of a house known for heavy drug trafficking and sold drugs. James, 484 N.W.2d at 800-803.
1. Manufactured Crime or Ongoing Criminal Activity
Appellant first argues that the police did not merely involve themselves in ongoing criminal activity, but rather "manufactured" a crime that would not otherwise have occurred. Appellant's reasoning is that she was not engaged in criminal activity at the time of her arrest. But the test is not whether appellant was participating in a crime at the time of her arrest, but rather whether the police conduct was improper. See James, 484 N.W.2d at 802 (stating that the due-process issue focuses on the conduct of the police, not that of the defendant). The police conduct in this case and the informant's repeated phone calls on the day of appellant's arrest did not amount to manufacturing a crime. Days before the arrests, Mike had agreed to meet the informant to buy an ounce of marijuana. Appellant involved herself in an ongoing crime unsolicited when she gratuitously negotiated with the informant for a quarter of a pound of marijuana for $250. Appellant came to the motel to buy the marijuana on her own volition after making her deal. The informant arranged the buy, but that is typical of undercover drug operations (not necessarily simon pure police work, but the type of police work sanctioned by state and federal courts too many times over too many years to be rehashed and reargued). We cannot find outrageous police conduct because an informant and an undercover police officer, and a controlled buy led to appellant's predicament.
Appellant points out that she was an otherwise law-abiding citizen and that she committed the crime only after being solicited by the informant. This argument is better suited for the defense of entrapment, a defense that appellant is not arguing. Even if argued and briefed, it would be a difficult defense, as appellant has two prior convictions for fifth-degree sale of marijuana. See State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994 (stating that no matter how involved the government is in inducing the commission of a crime, defense of entrapment fails if the government can prove beyond a reasonable doubt that defendant was predisposed to commit the crime).
2. Conduct Repugnant to a Sense of Justice
Appellant next argues that police engaged in improper conduct repugnant to a sense of justice by using a confidential informant to solicit criminal actions from otherwise law-abiding citizens. We disagree. Police consistently use confidential informants to uncover illegal drug activity. See, e.g., Grilli, 304 Minn. at 93, 230 N.W.2d at 454. The use of a confidential informant in sting or reverse sting operations typically does not constitute improper conduct. See Hampton, 425 U.S. at 489-90, 96 S.Ct. at 1649-50 (concluding that due process and entrapment were no defense where the government both supplied the contraband and bought it from the defendant). The use of the informant in this case was SOP (standard operating procedure) and, as previously stated, nothing in this record suggests conduct so egregious that the courts must vacate the conviction. With knowledge of Mike's and appellant's prior arrests, the informant called Mike on different days to arrange a controlled buy. The informant's actions, which included lowering the price of the marijuana from $300 to $250 to meet appellant's (in her own words) "budget" and agreeing to meet appellant before she went to work, show typical drug sale negotiations, and nothing even close to a set of facts that would support the defense of entrapment and/or egregious conduct. In general, law enforcement's use of a typical confidential informant is not a relevant prong under Isaacson that leads to a dismissal. Unlike the conduct in Isaacson, where the New York Court of Appeals determined that this factor weighed in favor of a reversal because the police physically harmed the informant until he agreed to arrange a drug sale and threatened him with falsely long prison sentences, there is no evidence of any similar conduct here.
3. Reluctance to Commit the Crime Overcome by Government Conduct
Appellant argues that the informant overcame her reluctance to commit the crime by persistent solicitations. We cannot find in the record evidence that appellant was either reluctant to purchase marijuana or persuaded to do so by having her will overborne by the informant. The record does disclose that the informant called her son. Evidently the son and the informant were on a speakerphone when appellant involved herself in "the deal" entirely on her own. It appears she simply negotiated for a quarter of a pound of marijuana for $250. It then appears that appellant willingly met the informant and an undercover police officer at a motel, paid the informant $250, and placed the marijuana in her purse.
4. Desire to Obtain Convictions or to Prevent Future Crime and Protect the Public
Finally, appellant argues that the police were motivated by the desire to obtain a conviction rather than a desire to prevent further crime or protect the community. We find nothing in the record to support this. We find nothing indicating an "overriding police desire for a conviction of any individual." See James, 484 N.W.2d at 802-03 (purpose of the operation was to reduce drug traffic and the court upheld the conviction of a buyer of a small amount of drugs for personal use); Cf. Isaacson, 378 N.E.2d at 84 (police desire for a conviction apparent when informant and police repeatedly requested that defendant bring drugs to New York and then arranged for the sale to occur in an area that was unmarked so the defendant believed he was not in New York). Here, the record simply indicates that the police were motivated to stop Mike and appellant, and others, from engaging in illegal drug activity.
Relying on two cases from other jurisdictions, the state argues that appellant may not assert a due-process defense because she was a second party who became involved in the drug transaction only after the informant contacted Mike, the first party. See United States v. Squillacote, 221 F.3d 542, 573-74 (4th Cir. 2000) (entrapment defense unavailable to second party who became involved in alleged espionage by the first party), cert. denied, 532 U.S. 971 (2001); State v. Petro, 592 So.2d 254, 257 (Fla. App. 1991) (entrapment and due-process defenses unavailable to second party who became involved in a drug transaction by the first party), review denied (Fla. Mar. 31, 1992). We decline to accept respondent's view. Regardless of how a defendant is contacted, investigated, charged, and convicted, trial and appellate courts in Minnesota can and will use their inherent power to administer justice by setting aside convictions when the government's conduct gets too egregious to swallow. See, e.g., State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (stating that prosecutorial misconduct may result in a new trial in the interests of justice); see also, e.g., State v. Porter, 526 N.W.2d 359, 366 (Minn. 1995) (exercising supervisory powers where the prosecutorial misconduct warranted reversal of defendant's conviction and remand for new trial).
Salitros and Porter revolved around improper closing arguments, but the principle is not confined to just egregious closing arguments. Thus, we do recognize appellant's argument over respondent's objection, but appellant does not persuade us that there was any egregious conduct warranting reversal in this case.