Opinion
No. A06-1163.
Filed December 11, 2007.
Appeal from the District Court, Winona County, File No. K7-05-1191, K9-05-1192.
Lori Swanson, Attorney General, and Charles E. MacLean, Winona County Attorney, Nancy L. Bostrack, Assistant County Attorney, (for respondent)
Stan Nathanson, (for appellant)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
On appeal from a conviction for controlled substance crimes, appellant argues that (1) the arresting officer did not have a reasonable, articulable suspicion to stop the vehicle in which appellant was a passenger; (2) the evidence was insufficient to prove that cocaine found in the squad car belonged to him; and (3) he was denied the effective assistance of counsel when his attorney failed to effectively cross-examine the arresting officer and to force the state to call additional witnesses to testify at the omnibus hearing. We affirm.
DECISION
Traffic Stop
"When reviewing a pretrial order on a motion to suppress evidence, we may independently review the facts and determine whether, as a matter of law, the district court erred in suppressing or not suppressing the evidence." State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004). A district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to conduct a warrantless search are reviewed de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).
The United States and Minnesota Constitutions prohibit "unreasonable searches and seizures." U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are generally per se unreasonable; however, this rule is subject to limited exceptions. State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005). One exception to the warrant requirement is that police may make limited investigative stops of vehicles when police have a "reasonable articulable suspicion of criminal activity." Munson, 594 N.W.2d at 136. To establish such suspicion, "the police need only show that the stop was not the product of mere whim, caprice, or idle curiosity." Id. (quotation omitted).
Reasonable articulable suspicion may be based on an informant's tip, if the tip has sufficient indicia of reliability, or it may be based on information provided through law-enforcement communications and the collective knowledge of the law-enforcement agency. State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982); Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App. 2000). Factors regarding an informant's tip that are relevant in the probable-cause context include the informant's veracity, reliability, and basis of knowledge. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983). Under the collective-knowledge approach, police officers are entitled to act upon a request from other officers to make an arrest, and the police action may be justified by facts not known to the individual officer who takes the action. See Conaway, 319 N.W.2d at 40-41 (stating an officer was entitled to make an arrest based on information from another officer that a car was reported stolen); see also State v. Camp, 590 N.W.2d 115, 119 n. 8 (Minn. 1999) (stating that it is permissible for officer to rely on information from another officer based on a tip from an informant); State v. Stark, 288 Minn. 286, 290-91, 179 N.W.2d 597, 600 (1970) (stating the arresting officer, who had only been told of suspected robbery and given a photo of the suspect, had probable cause to arrest based on all of the information police possessed as an agency).
Here, an officer met with a confidential reliable informant (CRI) who said that she could make a controlled buy of cocaine from a male residing at a particular apartment. The CRI had worked with the police several times in the past. The CRI arranged the controlled buy, and officers conducted surveillance on the apartment. When the CRI returned, she gave the officer a plastic baggie containing a substance that tested positive for cocaine. The CRI told the officer that two males were in the apartment; she gave one man the controlled-buy money and the other man gave her cocaine. The CRI provided detailed descriptions of both men, which were passed on to the surveillance team.
A member of the surveillance team, Deputy Glover, saw the men leave the apartment and followed their vehicle. Glover provided Officer Wooden with a description of the vehicle, the license plate number, the physical descriptions of the men, and the direction in which the vehicle was traveling, and requested that Wooden stop the vehicle for an arrest of the occupants for a controlled-substance crime. Wooden stopped the vehicle. That stop was supported by a reasonable articulable suspicion formed under the collective-knowledge approach, from the facts known to police about the controlled buy. When Wooden stopped the vehicle, the two men from the apartment were in the back seat of the vehicle. The man who handed the CRI the cocaine was identified as appellant Antonio Terrell Beasley. Glover arrived at the scene and advised Wooden to arrest the men. Based on the information provided by the CRI and known to the other officers, Wooden was entitled to act upon the request of Glover to make the arrest, which was supported by probable cause. The district court did not err in denying the motion to suppress the evidence.
Sufficiency of the Evidence
Appellant also argues that he was entitled to a judgment of acquittal because there was no proof that the cocaine found in the officer's vehicle was his. In considering a claim of insufficient evidence, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume that the "jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). "We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a] defendant was proven guilty of the offense charged." Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
Here, Wooden testified that he searched appellant before placing him into the squad car, and did not find anything on appellant other than cash and Chap Stick. Wooden also testified that en route to the jail, appellant constantly moved around in the seat. When Wooden removed appellant from the vehicle, he searched the vehicle and found two bags of cocaine where appellant had been sitting. Wooden testified that he searched his vehicle prior to his shift and noted only finding a wrapper from a preliminary breath test. Wooden had not transported anyone in his vehicle between the time he searched his vehicle prior to his shift and the time he transported appellant to jail.
Based on Wooden's testimony, it was reasonable for the jury to find that the bags of cocaine in the backseat of the squad car belonged to appellant, and that appellant removed the bags from his person en route to the jail. Because this court is to assume that the jury believed the state's witnesses and appellant did not present any evidence to the contrary, the evidence was sufficient for the jury to find appellant guilty of controlled substance crimes.
Effective Assistance of Counsel
Finally, appellant argues that his counsel was ineffective for failing to effectively cross-examine the arresting officer and for failing to require the state to call other officers to testify during the omnibus hearing. In order to succeed in a claim for ineffective assistance of counsel, appellant "must affirmatively prove that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. There is a strong presumption that an attorney's representation falls within the range of reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Trial tactics, including which witnesses to call and what information to present to the jury, are within the counsel's discretion. Id. This court does not review trial tactics or an attorney's decision regarding which witnesses to call. Id. Additionally, appellant does not indicate what testimony the witnesses would have provided or how it might have changed the outcome of the trial. Therefore, appellant has failed to show that his counsel's representation fell below an objective standard of reasonableness.