State v. Jung

• Decision Date: 10 August 2020
• Docket Number: A20-0105
• Parties: State of Minnesota, Appellant, v. Derek William Jung, Respondent.
• Court: Minnesota Court of Appeals

State of Minnesota, Appellant, v. Derek William Jung, Respondent.

A20-0105

STATE OF MINNESOTA IN COURT OF APPEALS

August 10, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Reversed and remanded

Bratvold, Judge

Polk County District Court

File No. 60-CR-19-1232

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, Minnesota (for appellant)

Kiara Kraus-Parr, Kraus-Parr, Morrow, & Weber, Grand Forks, North Dakota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and Kirk, Judge.^*

UNPUBLISHED OPINION

BRATVOLD, Judge

In this appeal from an order granting respondent Derek William Jung's motion to suppress evidence, appellant State of Minnesota challenges the district court's determination that police arrested Jung without probable cause. Based on this determination, the district court suppressed all evidence seized after Jung's arrest and dismissed two counts of the state's complaint—count three for fifth-degree drug possession and count four alleging first-degree driving while impaired. The state also argues that the district court erred when it found that the search warrants for Jung's house and urine did not provide an independent basis for the seizure of the evidence.

Because the district court misapplied the totality-of-the-circumstances test and the record establishes probable cause for Jung's arrest, we conclude that the district court erred by dismissing counts three and four and suppressing the evidence seized from Jung's vehicle, house, and urine as fruit of the poisonous tree. We therefore reverse and remand and do not reach the state's argument about whether an independent basis supported the seizure of evidence obtained by warrant.

FACTS

The following facts are based on the evidence received during the contested omnibus hearing.

On June 20, 2019, at around 11:15 a.m., Officer Nelson of the Crookston Police Department and Officer Wagner of the Pine-to-Prairie Drug Task Force waited within sight of Jung's house in Gentilly as part of their investigation into Jung for the sale andpossession of methamphetamine and other controlled substances. Nelson and Wagner planned for a third officer to obtain a search warrant for Jung's house and that they would execute the warrant while Jung was at home. Shortly after Nelson and Wagner began surveillance of Jung's house, a white GMC Denali-version sport utility vehicle (SUV) drove away. Nelson verified that the SUV was registered to Jung, and Wagner confirmed that Jung was driving. The SUV traveled westbound towards Crookston, followed by both officers.

The informant

Before Nelson went to Jung's house that day, he had received new information about Jung from other officers who had interviewed M.D. Around 7:30 a.m. that same day, police arrested M.D. for driving under the influence. At the time of her arrest, M.D. told police that she had used methamphetamine two days earlier. M.D. consented to a vehicle search, which revealed a baggie and a glass jar with tinfoil inside; the tinfoil later tested positive for a trace amount of methamphetamine.

While in custody, M.D. asked what charges she was facing, stated she last had used methamphetamine at 1:30 a.m. that morning and was still feeling the effects, and told police that her preteen children were at home. Officers told M.D., "Whatever you can do for us, will definitely help towards whatever your charges are going to be," but that any decision belonged to the prosecutor. M.D. then gave officers specific information about persons selling methamphetamine and other drugs in the area, one of whom was Jung.

M.D. said she met Jung on a dating website, they dated for about four months, and she knew that Jung had been released recently from prison. M.D. said Jung was sellingmethamphetamine and that she had purchased methamphetamine from him. M.D. said she only paid for drugs about half of the time because sometimes Jung would give her drugs for free. M.D. said Jung gave her methamphetamine around 50 times in total and they often used methamphetamine together. M.D. stated that Jung drives an SUV, specifically a "white Denali," he lives in a blue house in Gentilly, and he stashes his drugs under his bedroom nightstand. M.D. also told police that sometimes she would give methamphetamine to Jung and had planned to give him a "t-shirt" the night before.¹ M.D. also stated that Jung's supplier was named "Mikey," Jung had just given Mikey money, and that Jung and Mikey planned to make a trip soon to pick up methamphetamine.

M.D. consented to a search of her cell phone. She showed officers Facebook messages between her and Jung in which they discussed M.D. giving methamphetamine to Jung. In the same messages, Jung told M.D., "From now on text me on my phone cops dont need a warrant to check fb." Finally, M.D. also stated that she knew Jung was "drinking, doing meth all the time, driving around drunk," and that she had used methamphetamine with Jung at his house within the last two days.

The arrest

Nelson followed Jung in an unmarked vehicle for about four to six miles. Jung rapidly accelerated and Nelson believed Jung knew he was being followed. Nelson then saw Jung driving erratically as he swerved in his lane, crossed the fog line, drove onto the shoulder, and then returned to his lane. Jung turned off the highway and onto an adjacentstreet. When they came upon road construction blocking the road, Jung rapidly turned into a driveway. Nelson activated his emergency lights and pulled behind Jung's SUV. Jung parked partly on a driveway and partly in the road.

Nelson and Jung each exited their vehicles and met at Jung's driver's side door. Nelson observed that Jung was "very nervous," he had a "shaky" voice, and appeared "incredibly thin." Nelson was familiar with Jung from a 2016 investigation during which a search warrant was executed on Jung's house and police seized approximately 62 grams of methamphetamine and nearly $5,000 cash. After the 2016 search, police arrested Jung for first-degree sale of methamphetamine. While those charges were pending, police again arrested Jung, this time, on new charges after Nelson executed a controlled buy with the assistance of a confidential informant. Jung was later convicted in the respective cases for first-degree sale of methamphetamine and third-degree sale of methamphetamine, and his records of conviction were received into evidence at the omnibus hearing in this case. Nelson also knew that Jung was on intensive supervised release following his release from prison in fall 2018.²

Nelson also saw that Jung's cell phone, sitting in the cup holder inside the SUV, was displaying a contact named "Mikey," which was the name that M.D. identified as Jung's drug supplier. Jung said he knew he was being followed and told Nelson that he was on intensive supervised release and subject to searches. Nelson asked Jung about hisrecent drug use and whether he would consent to a search of his SUV. Jung declined to answer most questions and refused to allow the search. Nelson did not conduct field sobriety tests because the street was under construction and workers were moving in their direction.

Nelson arrested Jung for driving while impaired and for the possession and sale of a controlled substance. During a search of Jung's person incident to arrest, Nelson found $370 cash. At the county jail, Jung refused to provide a urine sample. Jung's SUV was transported to the sheriff's office and searched. On the floor of the SUV, Nelson found a baggie containing a crystalline substance later tested and confirmed to be methamphetamine, and, inside a drawstring bag on the passenger seat, Nelson found a "whizzinator" (a device used to defeat urinalysis testing) and a pill later identified as "Clonazepam" (a Schedule IV controlled substance).

The search warrants

At about 1:15 p.m. the same day, Deputy Brandon Larson applied for two search warrants: one for a sample of Jung's urine and the second for Jung's house. The basis for the warrant applications was (a) information received from M.D., (b) Jung's intensive-supervised-release status, (c) Nelson's observations of Jung before and after the traffic stop, (d) evidence obtained from searching Jung's SUV, and (e) the criminal histories of both Jung and M.D. A judge signed the warrants at 1:30 p.m., and police executed the warrants that same day.

During the search of Jung's house, law enforcement found methamphetamine, drug paraphernalia, and a bottle of suspected urine in Jung's bedroom. Jung's urine sample, obtained by warrant, tested positive for methamphetamine and amphetamine.

The next day, the state charged Jung with first-degree sale of 17 grams or more of methamphetamine under Minn. Stat. § 152.021, subd. 1(1) (2018) (count one), third-degree sale of a narcotic under Minn. Stat. § 152.023, subd. 1(1) (2018) (count two), fifth-degree possession of a controlled substance under Minn. Stat. § 152.025, subd. 2(1) (2018) (count three), and first-degree driving while impaired (DWI) by a Schedule II controlled substance under Minn. Stat. §§ 169A.20, subd. 1(7) (2018) ("Driving While Impaired" by a Schedule II controlled substance), .24, subd. 1(3) (2018) ("First-Degree Driving While Impaired"), 152.02, subds. 3(d)(1)-(2) (2018) (classifying methamphetamine as a Schedule II drug) (count four).

Jung's motion

Jung moved to suppress all evidence obtained from his arrest, arguing the arrest was not supported by probable cause and that the evidence obtained from his SUV, house, and urine were "derivative," and moved to dismiss counts three and four. At an evidentiary hearing, the district court heard testimony from Nelson, one of the officers who interrogated M.D. and relayed information to Nelson, and received 28 exhibits.

The district court later issued a written order determining that...