State of Minnesota v. Jonathan Lamont Davis

• Court: Court of Appeals of Minnesota
• Decided: June 15, 2015
• Docket: A14-1337
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1337

State of Minnesota, Respondent,

vs.

Jonathan Lamont Davis, Appellant.

Filed June 15, 2015 Affirmed Johnson, Judge

Hennepin County District Court File No. 27-CR-12-35738

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Robert J. Shane, Shane Law Office, LLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and

Stoneburner, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION

JOHNSON, Judge

Jonathan Lamont Davis was found guilty of first-degree controlled substance

crime and child endangerment after a bench trial. On appeal, he challenges the district

court’s denial of his pre-trial motion to suppress evidence. We conclude that police

officers had probable cause to arrest Davis based on a confidential informant’s tip.

Therefore, we affirm.

FACTS

On October 25, 2012, Minneapolis Police Officer Matthew Kipke received

information from a confidential informant that a person known as “Bon,” who later was

identified as Davis, was selling crack cocaine. The confidential informant said that he

had purchased crack cocaine from Davis on numerous occasions. The confidential

informant, while in Officer Kipke’s presence, called Davis to arrange the purchase of

three ounces of crack cocaine. After the telephone call, the confidential informant told

Officer Kipke that Davis would arrive at the “usual location,” a particular intersection in

Minneapolis, within 20 minutes and that Davis would be driving either a blue Chevy van

or a gold Chevy car. The confidential informant also described Davis as a black male,

roughly 35 to 45 years old, with a medium build, and said that Davis usually wore a

baseball hat and traveled alone.

Officer Kipke and other officers drove the confidential informant to the

intersection he had described. They parked along the curb on the southbound side of the

street. The confidential informant was seated in the rear of the vehicle with another

2 officer. After they parked, the confidential informant called Davis to report that he was

“at the spot.” After approximately 15 minutes, a blue van appeared behind the officer’s

squad car, traveling south on the same street. As the van passed the squad car, the

confidential informant looked at the van and, according to Officer Kipke, “stated

something to the effect of ‘that’s him.’”

Officer Kipke instructed other officers, by two-way radio, to arrest Davis. Two

other officers stopped the van and approached it from the front. The officers saw a man

sitting in the driver’s seat and a child, who later was identified as Davis’s nine-year-old

son, in the passenger seat. The officers arrested Davis and performed a search incident to

arrest. The officers found several small packages of crack cocaine, weighing a total of

94.2 grams, in a pocket of Davis’s jacket.

The state charged Davis with one count of first-degree controlled substance crime,

sale, in violation of Minn. Stat. §§ 152.021, subds. 1(1), 3(a), 152.01, subd. 16(a) (2012),

and one count of endangerment of a child, in violation of Minn. Stat. § 609.378,

subd. 1(b)(2) (2012). In June 2013, Davis moved to suppress the evidence seized in the

search following his arrest. The district court held an evidentiary hearing at which

Officer Kipke and Minneapolis Police Officer Efrem Madron Hamilton testified for the

state. Davis argued that the warrantless arrest was not supported by probable cause. He

conceded that if the arrest is valid, the search would be a valid search incident to arrest.

In December 2013, the district court denied Davis’s motion to suppress.

In April 2014, the case was tried to the district court on stipulated facts. See Minn.

R. Crim. P. 26.01, subd. 3; see also Dereje v. State, 837 N.W.2d 714, 720-21 (Minn.

3 2013). The district court found Davis guilty of both of the charged offenses. The district

court sentenced Davis to 60 months of imprisonment on the conviction of first-degree

controlled substance crime. Davis appeals.

DECISION

Davis argues that the district court erred by denying his motion to suppress the

evidence seized in the search following his arrest. He contends that the confidential

informant’s tip was not reliable and, consequently, that there was not probable cause to

arrest him on suspicion of a controlled substance crime.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A warrantless arrest is

“presumptively invalid” under the Fourth Amendment unless the state shows that an

exception applies. State v. Mastrian, 285 Minn. 51, 56, 171 N.W.2d 695, 699 (1969).

One such exception provides that an officer “may arrest a felony suspect without an arrest

warrant in any public place, including outside a dwelling, provided they have probable

cause.” State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (citing United States v.

Watson, 423 U.S. 411, 96 S. Ct. 820 (1976)). If the arrest is valid and supported by

probable cause, the officers may conduct a warrantless search of the arrestee to remove

weapons or to search for any evidence on the arrestee’s person. State v. Varnado, 582

4 N.W.2d 886, 892 (Minn. 1998). “A search incident to arrest is valid by itself and does

not require any additional justification.” Id. (citing United States v. Robinson, 414 U.S.

218, 235, 94 S. Ct. 467, 476 (1973)).

The central issue in this appeal is whether the officers had probable cause to arrest

Davis. Probable cause to arrest exists when “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.” State v. Johnson, 314 N.W.2d 229,

230 (Minn. 1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)). In

determining whether an arrest was supported by probable cause, we look at the totality of

the circumstances surrounding the arrest, using an objective standard. State v. Perkins,

582 N.W.2d 876, 878 (Minn. 1998). Police may rely on a confidential informant’s tip to

conclude that probable cause exists, “if the tip has sufficient indicia of reliability.” State

v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000) (citing In re Welfare of G.M., 560

N.W.2d 687, 691 (Minn. 1997)), review denied (Minn. July 25, 2000). “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. No single fact is determinative because

“each informer is different and . . . all of the stated facts relating to the informer should

be considered in making a totality-of-the-circumstances analysis” concerning the

reliability of the information provided. State v. McCloskey, 453 N.W.2d 700, 703 (Minn.

1990). This court applies a clear-error standard of review to a district court’s findings of

historical fact and a de novo standard of review to the district court’s determination of

probable cause. State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).

5 Davis first contends that the district court clearly erred by finding that the

confidential informant identified Davis as he drove the blue van past the squad car on the

way to the intersection where he was arrested. In its order, the district court made the

following finding of fact: “The [confidential informant], still seated in the unmarked

squad car, indicated to Officer Kipke that the blue van was [Davis’s] vehicle and that

[Davis] was in the driver’s seat.” Davis contends that this finding is clearly erroneous on

the ground that Officer Kipke “couldn’t even tell if the [confidential informant] was

looking at the driver when he said ‘that’s him.’” According to Officer Kipke, “The

vehicle came up from behind us, the [confidential informant] looked in the direction of

the van, it passed us, and the [confidential informant] immediately identified the van and

stated something to the effect of ‘that’s him.’” On cross-examination, Officer Kipke

conceded that he does not know with certainty that the confidential informant was able to

see the driver, though he did see the confidential informant “looking towards the van.”

Officer Kipke further testified that he believed that the confidential informant saw Davis

driving the van because any person who was looking at the van “would see the driver

inside of the van” so that when the confidential informant said, “‘that’s him,’ I was taking

it that he identified the driver of the van.”

In light of this evidence, a district court judge could find that the confidential

informant merely identified Davis’s vehicle but did not confirm that Davis was driving

the vehicle. But a district court judge also could interpret the evidence to mean that the

confidential informant both identified Davis’s vehicle and saw that Davis was driving the

vehicle. Even if a district court “could have concluded otherwise,” a finding of fact will

6 not be reversed if there is “reasonable evidence to support the district court’s findings of

fact.” State v. Evans, 756 N.W.2d 854, 870-71 (Minn. 2008) (quotations omitted). In

reviewing a district court’s findings of fact, we recognize that a district court judge may

consider not only the words spoken by a person but also the manner in which the words

are spoken, which may convey additional information about the meaning of those words.

See State v. Schulz, 691 N.W.2d 474, 479 (Minn. 2005) (noting that defendant’s “tone of

voice and inflection is evidence” that may be considered by factfinder). In this case,

Officer Kipke’s testimony is sufficient to support the challenged finding because it

indicates that he understood the confidential informant to say that he saw Davis driving

the van. Thus, the district court did not clearly err by finding that the confidential

informant identified Davis as he drove his van past the squad car immediately before his

arrest.

Davis also contends that the district court erred by finding that the confidential

informant’s tip was reliable. The parties agree that the following six-factor test governs

the issue:

(1) a first-time citizen informant is presumably reliable; (2) an informant who has given reliable information in the past is likely also currently reliable; (3) an informant’s reliability can be established if the police can corroborate the information; (4) the informant is presumably more reliable if the informant voluntarily comes forward; (5) in narcotics cases, “controlled purchase” is a term of art that indicates reliability; and (6) an informant is minimally more reliable if the informant makes a statement against the informant’s interests.

State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004); see also State v. Munson, 594

N.W.2d 128, 136 (Minn. 1999); McCloskey, 453 N.W.2d at 703; State v. Wiley, 366

7 N.W.2d 265, 269 (Minn. 1985). Davis contends that none of the factors indicates that the

confidential informant’s tip is reliable. In response, the state emphasizes only the third

and sixth factors and contends that those factors indicate that the confidential informant’s

tip is reliable.

In this case, the third factor is most significant because the reliability of the

confidential informant’s tip is demonstrated by the officers’ corroboration of the

information he provided. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991)

(stating that “informant’s credibility can be established by sufficient police corroboration

of the informant’s information”). The confidential informant provided information to the

officer in a face-to-face conversation, and such a meeting puts the informer “in a position

to be held accountable.” See McCloskey, 453 N.W.2d at 703-04. The reliability of the

confidential informant’s prediction was enhanced by the fact that the confidential

informant called Davis in the presence of Officer Kipke, who listened to the confidential

informant’s end of the conversation. During the phone call, Officer Kipke overheard the

confidential informant arrange to buy three ounces of crack cocaine. Immediately after

the call, the confidential informant told Officer Kipke that Davis gave a price of $1,400

per ounce. The confidential informant predicted that Davis would appear in a particular

place at a particular time in one of two vehicles. When the squad car was parked near the

intersection, Officer Kipke again heard the confidential informant’s telephone

conversation with Davis, during which the confidential informant indicated he was “at

the spot.” For these reasons, the confidential informant’s information was significantly

more likely to be reliable, as compared to a situation in which a confidential informant

8 supplies information that was obtained outside the presence of law-enforcement officers.

See, e.g., Munson, 594 N.W.2d at 132 (confidential informant called to say vehicle would

arrive at particular address with drugs); McCloskey, 453 N.W.2d at 701 (confidential

informant walked into sheriff’s office to volunteer information about drug dealer’s

residence); Wiley, 366 N.W.2d at 268 (confidential informant told investigator he had

seen weapons and drugs in particular residence). The reliability of the confidential

informant’s prediction was further established when Davis drove past the squad car in his

van, which indicated that the confidential informant had accurately predicted details

about Davis’s future, criminal conduct. See Cook, 610 N.W.2d at 668-69 (noting that

informant’s tip is more reliable if it corroborates future criminal behavior rather than

innocuous details). Furthermore, the reliability of the confidential informant’s prediction

was confirmed before Davis’s arrest when the other officers, who previously had been

briefed on the confidential informant’s description of Davis, were able to observe him as

they approached him from the front of the van. Thus, the evidentiary record supports the

district court’s finding with respect to the third factor, corroboration.

The parties take differing positions on the sixth factor, which provides that a

confidential informant is “minimally more reliable” if he makes a statement contrary to

his own self-interest. See Ross, 676 N.W.2d at 304. Davis contends that the confidential

informant should be deemed not reliable because he was a “stool pigeon,” who

cooperated with law-enforcement officers in hopes of avoiding or minimizing

punishment for his own criminal conduct. Davis’s contention is based largely on facts

9 that are not included in the appellate record.1 The general principle inherent in the sixth

factor is that a confidential informant is more likely to be credible if he has made an

admission against his interest. See Ross, 676 N.W.2d at 304; see also State v. Siegfried,

274 N.W.2d 113, 115 (Minn. 1978). The confidential informant in this case admitted to

purchasing crack cocaine on multiple occasions. That admission makes his information

“minimally more reliable.” See Ross, 676 N.W.2d at 304. Thus, the sixth factor supports

the district court’s finding that the CI’s information was reliable.

Because the third factor established reliability, we need not address the other

factors. We note, however, that the first and second factors do not come into play in this

case. The record indicates that Officer Kipke had not worked with the confidential

informant in the past, which shows that the second factor is not relevant. See Ross, 676

N.W.2d at 304. The record does not indicate whether the confidential informant was a

“first-time citizen informant” who is deemed to be “presumably reliable.” See id.

In sum, the district court did not clearly err in its findings and, thus, did not err by

denying Davis’s motion to suppress evidence.

Affirmed.

1 In support of this contention, Davis refers to two exhibits that he offered at the suppression hearing: an audio-recording of defense counsel’s interview of the confidential informant and a transcript of the interview. Davis offered the exhibits to the district court for the limited purpose of supporting his motion for a continuance of the suppression hearing to allow additional time to serve a subpoena on the confidential informant. The district court denied Davis’s request for a continuance. The district court did not admit the exhibits into evidence for purposes of determining the reliability of the confidential informant. Thus, we will not consider the exhibits when reviewing the district court’s denial of Davis’s motion to suppress evidence. See State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).