State v. Maldonado

• Decision Date: 30 July 1982
• Docket Number: No. 81-497.,81-497.
• Citation: 322 NW 2d 349
• Parties: STATE of Minnesota, Respondent, v. Alfredo Rodriguez MALDONADO, Appellant.
• Court: Minnesota Supreme Court

322 N.W.2d 349 (1982)

STATE of Minnesota, Respondent, v. Alfredo Rodriguez MALDONADO, Appellant.

No. 81-497.

Supreme Court of Minnesota.

July 30, 1982.

John E. Mack and Bradley G. Junkermeier, New London, for appellant.

Warren Spannaus, Atty. Gen., Gary Hansen and Richard D. Hodsdon, Sp. Asst. Attys. Gen., St. Paul, Steve Drange, County Atty., Litchfield, for respondent.

Considered and decided by the court en banc without oral argument.

PETERSON, Justice.

Defendant was found guilty by a district court jury of charges of possessing marijuana and possessing marijuana with intent to distribute, and was sentenced by the trial court to 20 months in prison, with execution stayed for 5 years on condition that defendant spend the first 5 months of probation in jail.¹ Defendant, who apparently is free on bond pending appeal, contends on appeal (1) that the omnibus court erred in denying his motion to suppress the marijuana on Fourth Amendment grounds and (2) that the evidence that he possessed the marijuana was legally insufficient. We affirm.

In March of 1980 Charles Schrum, who is an investigator with the Litchfield Police Department, was in frequent contact with an informant whose identification was known to him but is not known to us. This informant gave him information concerning events in a certain apartment in Litchfield that was later identified. On three occasions this informant, whom Schrum had never caught lying, made controlled buys² of marijuana for him. On one occasion, after going to a residence to try and make a buy, the informant returned with information that the person with whom the informant had dealt, an employee of the Jennie-O plant in Litchfield, had provided the informant with information that he or she got his or her marijuana from someone who regularly sold marijuana to Jennie-O employees near the plant on Friday afternoons.

At noon on Friday, March 28, 1980, within a week or two after receiving this information, Schrum received a call from the informant, who claimed to have just talked with someone in the railroad lot near the Jennie-O plant and that the party had said he was about to buy marijuana from three "Mexican males" he pointed to in an orange and white Chevy pickup. Incidentally, Schrum described this "someone" that the informant had just talked to as a "known seller."

Schrum, who was in uniform, called his brother, who is also a Litchfield police officer. Schrum asked his brother, who was off duty at the time, to drive in his own car past the Jennie-O plant and report what he saw. The brother did this, and saw the orange and white pickup with four men in it, all of whom appeared to be of Mexican origin. The brother then met Schrum and Officer Klitzle a couple of blocks away, and Schrum then decided to move in and search the truck.

The three officers, each in his own car, then drove up to the truck. Only one of the three cars was marked. As they approached, they caught the attention of the occupants of the truck. The three passengers got out on the passengers' side and appeared to be leaving hurriedly; defendant, the owner of the truck, got out on the driver's side and, leaving the door open, also began to walk away quickly.

Schrum ordered them all to stop, and they did. He then explained to defendant, who admitted owning the vehicle, that he was going to search it. Before entering the vehicle he saw in open view, sticking out from under the driver's seat, an unsealed brown paper bag. Schrum then seized and opened the bag, finding inside it 16 plastic bags, each containing ½ to 1 ounce of marijuana.

All four men — defendant and Ramon Leyva, Crispin Rodriguez, and a man named Jimenez — were arrested and booked. No marijuana and an insignificant amount of cash was found on defendant's person. Police found one bag of marijuana on Rodriguez and one bag on Leyva but none on Jimenez. On Rodriguez they also found $168 in cash.

Rodriguez, who, like defendant, is from Willmar, told police that he had seen defendant sell marijuana on three or four different occasions and that on this occasion defendant asked him to accompany him to Litchfield for the purpose of selling some more. He claimed that defendant had given him the bag that police found on his person but that on other occasions he had bought marijuana from defendant. He stated that defendant was selling the marijuana for $35 to $45 a bag.

Rodriguez, who was called as a state's witness at trial, admitted knowing defendant and testified that any money he had on his person was from his employer. He claimed no recollection of what he told police and testified that he may have lied. He also claimed no recollection of how he got the bag of marijuana taken from him. Following his testimony, Schrum testified concerning the contents of Rodriguez's statement to police. He also testified that 3 weeks before trial Rodriguez had reaffirmed the truth of his statement.

Notwithstanding the trial court's ruling that his credibility could not be impeached by prior convictions, defendant chose not to testify. In closing argument defense counsel argued simply that the state had failed to establish that defendant possessed marijuana and suggested that the evidence pointed to Rodriguez's guilt, not defendant's guilt. The jury disagreed and found defendant guilty as charged.

1. Defendant's Fourth Amendment argument is two-fold: that there was no probable cause to search and that, even if there was, police should have gotten a warrant before searching either the truck or the bag found inside the truck.

(a) The issue of whether there was probable cause requires the use of the two-pronged analysis applied in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). That is, since the searching officer's assessment of probable cause was based on hearsay information, we must decide whether the record established that the informant obtained his information in a reliable way and that the informant was credible or his information reliable. State v. Boerner, 260 N.W.2d 564, 566 (Minn.1977).

Since the police did not try to establish that the informant was a so-called citizen informer — that is, an ordinary citizen with no...