This opinion will be unpublished and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UNPUBLISHED OPINION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
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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.
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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
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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).
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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
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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
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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
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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
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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).
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