State of Minnesota v. Deundrick Demon McIntosh ( 2016 )

This opinion will be unpublished and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
A15-0887
State of Minnesota,
Respondent,
vs.
Deundrick Demon McIntosh,
Appellant.
Filed April 25, 2016
Affirmed
Klaphake, Judge *
Ramsey County District Court
File No. 62-CR-14-7542
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul,
Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant Deundrick Demon McIntosh challenges his conviction of possession of a
firearm by an ineligible person, arguing that the police did not have reasonable suspicion
to stop a vehicle in which he was a passenger, and did not have probable cause to search
under the vehicle’s hood. Because the police had reasonable, articulable suspicion of
criminal activity to justify the stop of the vehicle and probable cause to search under the
vehicle’s hood, we affirm the district court’s order denying appellant’s motion to suppress
the firearm.
DECISION
McIntosh argues that the police did not have reasonable suspicion to stop the vehicle
in which he was a passenger. “When reviewing pretrial orders on motions to suppress
evidence, [appellate courts] 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). We review the district court’s findings
of fact under a clearly erroneous standard, but we review its legal determinations de novo.
State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). Deference must be given to the
district court’s credibility determinations. State v. Miller, 659 N.W.2d 275, 279 (Minn.
App. 2003), review denied (Minn. July 15, 2003).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police
officer may, however, initiate a limited investigative stop without a warrant if the officer
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has reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21–
22, 88 S. Ct. 1879-80 (1968). Whether the police have reasonable suspicion to conduct an
investigative stop depends on the totality of the circumstances and a showing that the stop
was not “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R.,
693 N.W.2d 444, 448 (Minn. App. 2005) (quotation omitted), review denied (Minn.
June 28, 2005).
The factual basis required to justify an investigative stop is minimal. Magnuson v.
Comm’r of Pub. Safety, 703 N.W.2d 557, 560 (Minn. App. 2005). “It need not arise from
the personal observations of the police officer but may be derived from information
acquired from another person.” Id. “An informant’s tip may be adequate to support an
investigative stop if the tip has sufficient indicia of reliability.” Id. “Having a proven track
record is one of the primary indicia of an informant’s veracity.” State v. Munson, 594
N.W.2d 128, 136 (Minn. 1999).
In this case, the investigatory stop of the vehicle was not based on mere whim,
caprice, or idle curiosity. A confidential reliable informant (CRI) told Ramsey County
Deputy Sheriff Christian Freichels that McIntosh was inside a Thomas Avenue address
with a handgun. Deputy Freichels had previously looked up McIntosh’s criminal history
and knew that it was illegal for McIntosh to possess a firearm. See Minn. Stat. §§ 624.713,
subd. 1(2), .712, subd. 5 (2014) (stating that it is illegal for a person who has been convicted
of aggravated robbery to possess a firearm). The CRI told Deputy Freichels that a vehicle
driven by a female would pick up McIntosh from the Thomas Avenue address. The CRI
stayed in contact with officers during their surveillance of the address to help identify
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which vehicle McIntosh entered. And the CRI told the officers that the hood of the vehicle
officers subsequently stopped had been opened at the Thomas Avenue address. This
information was sufficient to support the inference that appellant was in the vehicle and
that he placed the handgun in the vehicle. See State v. Schrupp, 625 N.W.2d 844, 845
(Minn. App. 2001) (holding that an investigatory stop “is reasonable when the officer
possesses at the inception of the stop articulable objective facts that . . . support[] at least
one inference of the possibility of criminal activity”), review denied (Minn. July 24, 2001).
McIntosh argues that the CRI was not reliable and that although “[Deputy] Freichels
testified the informant had provided reliable information in the past, . . . no other details
about this past information or corroboration of Freichels’s assessment of this information
exist.” The district court found that the CRI had provided reliable information to the police
in the past that led to the recovery of evidence in other investigations and the charging of
suspects for felony drug crimes. This information was sufficient to establish the CRI’s
veracity. See Munson, 594 N.W.2d at 136 (stating that “the particular CRI who provided
the information about Munson had given the police reliable information in the past,” and
that “[w]hile the record does not contain specific details of the CRI’s record, further
elaboration concerning the specifics of the CRI’s veracity is not typically required”). In
sum, the officers had reasonable, articulable suspicion of criminal activity that justified the
stop.
McIntosh next argues that the officers did not have probable cause to search under
the vehicle’s hood. “Generally, searches conducted outside of the judicial warrant process
are per se unreasonable.” Id. at 135. But “[t]here is a well-established exception to the
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search warrant requirement for cases involving transportation of contraband goods in motor
vehicles.” Id. “Under this motor vehicle exception, the police may search an automobile
without a warrant if they have probable cause for believing that the vehicles are carrying
contraband or illegal merchandise.” Id. (quotation omitted). Probable cause to search a
vehicle “justifies a search of every part of the vehicle and its contents that may conceal the
object of the search.” State v. Bigelow, 451 N.W.2d 311, 311 (Minn. 1990). “The probable
cause necessary to support a warrantless search of a motor vehicle must be based on
objective facts that could justify the issuance of a warrant by a magistrate and not merely
on the subjective good faith of the police officers.” Munson, 594 N.W.2d at 136. Probable
cause that could justify the issuance of a warrant by a magistrate is “a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, (1983).
As discussed above, the CRI had a “proven track record” that established his or her
veracity. See Munson, 594 N.W.2d at 136. The CRI told Deputy Freichels that McIntosh
was inside the Thomas Avenue address carrying a handgun and provided updates as to
McIntosh’s whereabouts during the surveillance, suggesting that the CRI’s basis of
knowledge was first-hand observation. The CRI told police that the hood of the vehicle
had been opened. After the stop, the officers corroborated that McIntosh was in the vehicle
and that a female had picked him up. See id. (“The independent corroboration of even
innocent details of an informant’s tip may support a finding of probable cause.”). Under
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the circumstances, there was a fair probability that the handgun would be found under the
hood of the car. See id. at 136-37 (“Under the circumstances of this case, we hold that the
corroborated details of the CRI’s tip, together with the past reliability of the CRI, gave the
police probable cause to believe that the Blazer was carrying illegal drugs and thus justified
the search of the Blazer under the motor vehicle exception.”).
McIntosh asserts that this case is like State v. Flowers, 734 N.W.2d 239 (Minn.
2007). In Flowers, the supreme court held that the police did not have probable cause to
search a vehicle after a traffic stop when the facts did not show “that the officers had any
knowledge of Flowers’ criminal record, that they were acting on a tip, that they had
perceived evidence of alcohol, drugs, guns, or other contraband in the vehicle, or that they
had other additional facts that were sufficient to support a finding of probable cause.”
Flowers, 734 N.W.2d at 249. Flowers is distinguishable. Here, before officers searched
the vehicle, they had specific information that McIntosh was ineligible to possess a firearm,
that he was currently in possession of a firearm, that he was in the vehicle, and that the
hood of the vehicle had been opened.
McIntosh also relies on State v. Cook, 610 N.W.2d 664 (Minn. App. 2000), review
denied (Minn. July 25, 2000). In Cook, this court held that the police lacked probable cause
to arrest Cook because the CRI provided only a “description of Cook’s clothing, physical
appearance, vehicle, and present location,” and “[t]hese details . . . fail[ed] to offer any
explanation for the basis of the CRI’s claim that Cook was selling drugs.” 610 N.W.2d at
668. “The CRI never claimed that he had purchased drugs from Cook or that he had seen
Cook selling drugs.” Id. This court observed that the “police did no independent
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corroboration other than to verify that the vehicle described by the CRI was parked in the
YMCA lot and that the man leaving the YMCA and getting into the driver’s side of the
vehicle matched the description of Cook given to police by the CRI.” Id. McIntosh’s
reliance on Cook is misplaced. Here, the CRI did provide an explanation for the basis of
his or her claim that McIntosh was carrying a handgun: the CRI had recently seen McIntosh
carrying a gun and knew McIntosh was in the Thomas Avenue address with a gun.
In sum, the officers had reasonable, articulable suspicion of criminal activity to
justify the stop of the vehicle and probable cause to search under the hood of the vehicle
for the gun. The district court did not err by denying McIntosh’s motion to suppress the
firearm.
Affirmed.
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