This opinion will be unpublished and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
A14-0431
State of Minnesota,
Respondent,
vs.
Jimmy Dawayne Lester,
Appellant.
Filed April 13, 2015
Reversed
Chutich, Judge
Hennepin County District Court
File No. 27-CR-11-33928
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant
Public Defender, St. Paul, Minnesota; and
Jonathan P. Schmidt, Special Assistant Public Defender, Briggs and Morgan,
Minneapolis, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Jimmy Dawayne Lester challenges the district court’s denial of his
motion to suppress evidence of heroin found in his seized rental car. He contends that the
police lacked probable cause to arrest him and to search the car. He also challenges his
conviction of third-degree possession of heroin, claiming that the circumstantial evidence
was not sufficient to establish that he constructively possessed the heroin found in the
car. Because we conclude that probable cause did not exist to arrest Lester, we reverse.
FACTS
On October 26, 2011, Minneapolis Police Officer Kyle Ruud received a call from
a confidential reliable informant. Officer Ruud had worked with this informant for
approximately two months, and in past investigations the police had corroborated the
informant’s information and used it to file charges. The informant told Officer Ruud that
a man, nicknamed “J.,” would be delivering heroin in approximately ten minutes to the
area of Broadway Avenue North and Washington Avenue North in Minneapolis. The
informant described J. as a black male, approximately 28 to 30 years old, between 5’9” to
5’10” tall, medium build, and medium/light complexion. The informant had personally
witnessed J. possessing and selling heroin many times within the last month.
Officer Ruud and four to five other officers set up surveillance of the area. Within
three minutes after receiving the informant’s tip, Officer Ruud observed a car parked on
Washington Avenue. Two black males were in the car, and the man in the front
passenger seat matched J.’s description. Officer Ruud drove past the car with the
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informant, and the informant identified the passenger as J. The driver was later identified
as appellant Jimmy Dawayne Lester. After a few minutes, the officers observed the car
pull into a nearby gas station. J. and Lester then left the car, went into the gas station,
and came out a few minutes later.
When they emerged from the gas station, J. left and walked north to a sidewalk on
the south side of Broadway. Police observed him pacing back and forth on the sidewalk
for a few minutes, and he appeared to be talking on his cell phone. J., still talking on the
phone, crossed University Avenue into a nearby parking lot. Officer Ruud noted that as
J. was walking and talking on his phone, he was looking around as if waiting for
somebody to arrive. Another car driven by a white male then pulled into the parking lot
and J. got into the passenger seat. The car pulled out onto Broadway and headed east.
After traveling several blocks, the police pulled the car over and arrested J. No
contraband was discovered on J.’s person.
Meanwhile, Lester had pulled his car away from the gas pump and legally parked
it on the north side of the gas station’s parking lot. After watching Lester park, Officer
Ruud ordered his squad to move in and arrest Lester. The police did not see any drugs in
plain view when they arrested Lester; nor did they find drugs or any large sum of cash on
Lester’s person. Lester’s car was then taken to the police station to be searched. Lester
told police that the car was a rental in his name and that he rented it because his was
being repaired.
A search of Lester’s rental car revealed eleven plastic baggies containing
“bindles” of suspected heroin hidden behind a panel in the car’s center console. The
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bindles tested positive for heroin with an estimated market value of approximately $400
to $600.
Lester was charged with third-degree possession of a controlled substance and
second-degree sale of a controlled substance.1 Minn. Stat. §§ 152.023, subd. 2(a)(1)
(Supp. 2011), .022, subd. 1(1) (2010). Each count alleged that Lester was either acting
alone or aiding another within the meaning of Minnesota Statutes section 609.05,
subdivision 1 (2010). Lester moved, in relevant part, to suppress the evidence obtained
in the search of the car and dismiss all charges against him. The district court denied
Lester’s motions, concluding that the police had probable cause to arrest Lester and that
the search of Lester’s rental car was independently supported by probable cause under the
automobile exception.
Lester asked the district court to reconsider his argument that the police
impermissibly exceeded the scope of an inventory search when his car was impounded.
In a supplemental order, the district court again denied Lester’s motion to suppress,
reasoning that it need not address the inventory search exception because police had
probable cause to search the car under the automobile exception.
The case proceeded to a bench trial. When the state rested, Lester moved for a
judgment of acquittal, and the district court denied his motion. Lester then rested without
presenting further evidence. After the parties’ closing arguments, the district court
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Lester was initially charged with second-degree possession of a controlled substance,
but the complaint was subsequently amended.
4
convicted Lester of third-degree possession of heroin but acquitted him of second-degree
sale of heroin. Lester appealed.
DECISION
Lester argues that the district court erred in denying his motion to suppress
because the police lacked probable cause to arrest him and any heroin discovered in the
later search of his rental car was inadmissible as fruit of the poisonous tree. We agree.
The Fourth Amendment of the United States Constitution and Article I, Section 10
of the Minnesota Constitution protect against unreasonable searches and seizures. A
warrantless search is per se unreasonable unless “one of a few specifically established
and well-delineated exceptions applies.” State v. Diede, 795 N.W.2d 836, 846 (Minn.
2011) (quotation omitted). Without a warrant, an officer may validly arrest a suspect if
“a felony has in fact been committed, and the officer has reasonable cause for believing
the person arrested to have committed it.” Minn. Stat. § 629.34, subd. 1(c)(3) (2014).
The “reasonable cause” statutory requirement is synonymous with the “probable cause”
constitutional requirement. State v. Merrill, 274 N.W.2d 99, 108 (Minn. 1978).
“Probable cause to arrest exists when a person of ordinary care and prudence,
viewing the totality of circumstances objectively, would entertain an honest and strong
suspicion that a specific individual has committed a crime.” State v. Williams, 794
N.W.2d 867, 871 (Minn. 2011) (quotation omitted). Whether probable cause exists is an
objective inquiry that “requires something more than mere suspicion but less than the
evidence necessary for conviction.” Id. When we examine a district court’s pretrial
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order on a motion to suppress evidence, we review the factual findings for clear error and
legal determinations de novo. Diede, 795 N.W.2d at 849.
Probable Cause to Arrest Lester
The district court concluded that police had probable cause to arrest Lester based
on the totality of the circumstances, including the informant’s tip regarding the pending
drug sale, the police officers’ corroboration of the tip, and the officers’ trained
observations that J.’s behavior was consistent with that of a narcotics dealer and Lester’s
behavior was consistent with that of a “partner.”
Police can rely on an informant’s tip if it has sufficient indicia of reliability. In re
Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). To assess the reliability of a
confidential informant’s tip, “courts examine the credibility of the informant and the
basis of the informant’s knowledge in light of all the circumstances.” State v. Cook, 610
N.W.2d 664, 667 (Minn. App. 2000), review denied (Minn. July 25, 2000).
The reliability of a confidential informant is measured using six different factors,
two of which are relevant here: (1) an informant who has historically given reliable
information is likely currently reliable, and (2) an informant who provides information
that police can corroborate is likely reliable. See State v. Ross, 676 N.W.2d 301, 304
(Minn. App. 2004). The first requirement can be satisfied if an officer credibly testifies
that the informant “has been reliable in the past because ‘this language indicates that the
informant had provided accurate information to the police in the past’ and thus gives ‘the
magistrate . . . reason to credit the informant’s story.’” Id. (quoting State v. Wiley, 366
N.W.2d 265, 269 (Minn. 1985)).
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Here, the district court found the informant to be reliable, and we conclude that the
record supports this finding. Officer Ruud testified that the informant had provided
information in past investigations that led to the filing of charges. Police also
corroborated the informant’s tip: within minutes of receiving the tip, Officer Ruud
observed a car parked in the area that the informant identified for the drug deal, and the
informant positively identified the passenger as J.
“Recitation of facts establishing [an informant’s] reliability by his proven ‘track
record,’ however, does not by itself establish probable cause”; the informant “must still
show a basis of knowledge.” Cook, 610 N.W.2d at 668. The informant’s basis of
knowledge “may be supplied directly, by first-hand information,” or “indirectly through
self-verifying details that allow an inference that the information was gained in a reliable
way and is not merely based on the suspect’s general reputation or on a casual rumor
circulating in the criminal underworld.” Id.
The record establishes that the informant had a basis of knowledge concerning J.
The informant had personally witnessed J. possessing and selling heroin multiple times
within the last month. Thus, as to J., the informant’s tip was strong evidence supporting
probable cause for an arrest.
But the informant’s tip focused exclusively on J.; the informant had no information
about Lester, much less that J. would be selling drugs with a partner. The informant also
did not specify whether J. would arrive in a car or hide drugs in a car. Despite the
informant’s total lack of knowledge concerning Lester, the state contends that the trained
observations of the police during surveillance—combined with the informant’s tip—were
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sufficient to establish probable cause to arrest Lester. Specifically, the state credits
Officer Ruud’s training and experience that showed two people often work together to
distribute drugs, and the person who drives usually remains in the car to guard the drugs
hidden within.
“An officer may rely on his training and experience to draw inferences and make
deductions that might well elude an untrained person.” State v. Skoog, 351 N.W.2d 380,
381 (Minn. App. 1984) (quotation omitted). The evidence must be “sufficient to lead a
reasonably prudent person to believe there is a basis for the search.” State v. Richardson,
514 N.W.2d 573, 579 (Minn. App. 1994). Mere suspicion does not equate to probable
cause, however. Skoog, 351 +N.W.2d at 381.
Here, the officer’s strongest indicium of suspicious activity regarding Lester was
that he remained parked in his car after J.’s departure. But a person could legally park a
car for many legitimate reasons; it is not an action that would lead a reasonably prudent
person to believe that someone is engaged in criminal activity. See Richardson, 514
N.W.2d at 579. And the record contains no evidence to suggest that Lester parked for an
inordinately long time, which may have given more credence to the officer’s suspicions.
Instead, the record shows that Lester was arrested at the same time the police stopped the
car in which J was riding and arrested J.
While we do not discount the officer’s trained observations here, probable cause
requires more than mere suspicion. Skoog, 351 N.W.2d at 381. It requires a person of
ordinary care and prudence to “entertain an honest and strong suspicion that a specific
individual has committed a crime.” State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009).
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The police may have suspected that Lester was engaging in a drug transaction, but they
had no information tying either Lester or his rental car to the informant’s predicted sale
and most importantly, they did not witness an actual sale.
Furthermore, the factors that the state cites in support of probable cause to arrest
Lester—the informant’s tip and the officer’s observations—all rely on a common thread:
Lester’s proximity to J. In Diede, the supreme court ruled that “[m]ere proximity to, or
association with, a person who may have previously engaged in criminal activity is not
enough to support reasonable suspicion of possession of a controlled substance.” 795
N.W.2d at 844.
The police in Diede observed appellant driving a truck with a passenger who was
suspected of previously selling narcotics. Id. When appellant stopped the truck, the
police approached and seized her. Id. The supreme court held that the police did not
have reasonable, articulable suspicion based merely on appellant’s “proximity to, or
association with” the passenger in her truck who was suspected of previously selling
narcotics. Id. at 844-45.
Similar to the appellant in Diede, the police here had no specific reason2—other
than Lester’s proximity to J.—to suspect Lester of criminal activity. Moreover, the
police in Diede did not even meet the Terry standard of reasonable suspicion, a lesser
2
As discussed above, Lester parking his car outside the gas station is not the type of
suspicious behavior sufficient to find probable cause. At most, the police had reasonable
suspicion to approach Lester and gather further evidence which may have justified a
search of the car.
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standard than the probable cause required here. See id. at 845 (citing Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868 (1968)).
The state argues that Diede is distinguishable because the police in Diede
suspected the passenger of past narcotics sales whereas the police here suspected Lester’s
passenger, J., of currently selling narcotics. We are not persuaded by this distinction:
police observed no actual drug sale to validate their suspicion that Lester was involved in
a drug transaction, and they did not observe Lester engage in anything other than
innocuous behavior.
The district court, in distinguishing Diede, concluded that the facts here more
closely resembled State v. Davis, an unpublished decision from this court. Unpublished
decisions are not precedential. Minn. Stat. § 480A.08, subd. 3 (2014). And Davis is
inapposite here.
In Davis, the appellant drove a friend to a park and waited while the friend sold
cocaine to a police informant. No. A08-2268, 2010 WL 87238, at *1 (Minn. App. Jan.
12, 2010), review denied (Minn. Mar. 30, 2010). The friend then returned to the
appellant’s car where they conferred. Id. We concluded that police had reasonable
suspicion to believe the appellant actively participated in the drug sale because—in
addition to driving his friend and waiting during the sale—the appellant conferred with
his friend afterwards, and the informant told police that he suspected the appellant was
the main supplier of the cocaine. Id. at *2. Lester’s situation is distinguishable from
Davis because the police witnessed no actual sale here, and nothing in the confidential
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reliable informant’s tip even mentioned Lester, much less implicated him as a “main
supplier.”
Based on the totality of the circumstances at the time of Lester’s arrest, a
reasonable person could not entertain an honest and strong suspicion that he had
committed a crime. Accordingly, we conclude that the police lacked probable cause to
arrest Lester.
Automobile Exception
The district court determined that the search of Lester’s rental car was
independently supported by probable cause under the automobile exception to the
warrant requirement. Similarly, the state contends that we need not address the legality
of Lester’s arrest because the police had probable cause to search his car under the
automobile exception. We disagree and conclude that probable cause to search Lester’s
rental car did not independently exist under the circumstances here.
Under the automobile exception to the warrant requirement, police can search a
car without a warrant if they have probable cause to believe that the car is carrying
contraband or illegal merchandise. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999)
(quoting Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 285 (1925)). The
probable cause that supports the search of a car is “basically the same” as the probable
cause that supports an arrest, provided that the focus is on the car and not the person.
Cook, 610 N.W.2d at 668 n.2.
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The state cites a number of cases3 to support its contention that probable cause to
search Lester’s vehicle can exist independent of probable cause to search Lester. None of
these cases are persuasive here.
In Chambers v. Maroney, the issue was whether police had probable cause to
search a car in which several suspected robbers had been arrested because the actual
search did not occur until “some time after the arrest.” 399 U.S. 42, 47, 90 S. Ct. 1975,
1979 (1970). The Supreme Court ultimately held that the “validity of an arrest is not
necessarily determinative of the right to search a car if there is probable cause to make
the search.” Id. n.6. But the Court arrived at this conclusion after determining that police
had probable cause to arrest the suspects inside the car. Id. at 46, 90 S. Ct. at 1978-79.
Moreover, witnesses in Chambers told police that the robbers used a blue station wagon
as a getaway car, and the suspects were arrested in a blue station wagon. Id. at 44, 90 S.
Ct. at 1977.
3
The state cites to a number of unpublished cases from this court, which although not
precedential, may be persuasive. Sarber v. Comm’r of Pub. Safety, 819 N.W.2d 465, 469
n.3 (Minn. App. 2012). None of these persuade us here, however, that the search was
permissible. In each case—unlike the circumstances here—police had probable cause to
search the car because evidence directly linked the car to suspected criminal activity. See
State v. Jackson, No. A13-0374, 2013 WL 4711220, at *1 (Minn. App. Sept. 3, 2013)
(informant texted police a description of the car while he was riding inside it and
personally saw drugs hidden inside the car’s glove box), review denied (Minn. Nov. 12,
2013); Barlow v. State, No. A10-746, 2011 WL 134953, at *4 (Minn. App. Jan. 18, 2011)
(marijuana found on appellant’s person, appellant admitted that car contained more
drugs, and dog sniff tested positive for drugs in car); State v. White, No. A09-1095, 2010
WL 3543338, at *3-4 (Minn. App. Sept. 14, 2010) (tip described appellant driving “a red
SUV” and police observed a bag of marijuana in plain view inside the car’s door), review
denied (Minn. Nov. 23, 2010).
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Here, police observed J. sitting in the car and leaving it. To be sure, it was not
unreasonable for the police to suspect that J. could have hidden drugs inside the car. But
mere suspicion of criminal activity does not satisfy probable cause. State v. Brazil, 269
N.W.2d 15, 19 (Minn. 1978). And the officers’ belief that J. hid drugs inside the car was
nothing more than suspicion: police did not observe J. hide anything inside the car, the
informant did not say anything about J. using a car to deliver drugs or storing drugs
inside a car, and the police saw no drugs in plain view when they arrested Lester.4
When police discover evidence as the result of an illegal search, the fruits of that
search must be excluded. State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998). Here,
police lacked probable cause to arrest Lester and search his rental car; therefore the
heroin that was discovered in Lester’s rental car must be excluded. Given our conclusion
above, we need not address Lester’s remaining arguments.
Reversed.
4
We recognize that probable cause to search the car may well have existed had J. been in
the car when the police arrested him. But once J. left the car, barring some other
observation or tip about Lester or the car, probable cause to search the car dissipated.
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