State v. Varnado
| Decision Date | 10 February 2020 |
| Docket Number | A19-0273 |
| Parties | State of Minnesota, Respondent, v. Brian Anthony Varnado, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Hennepin County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Sean P. Cahill, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and Smith, Tracy M., Judge.
UNPUBLISHED OPINION
Appellant Brian Anthony Varnado challenges his conviction for possession of ammunition or a firearm by an ineligible person. Varnado argues that the district court erred when it allowed the state to introduce evidence found during the search of a vehicle in which he was a passenger, because law enforcement1 lacked a sufficient legal basis to stop the vehicle in the first place. We affirm.
A series of bank robberies occurred in the Twin Cities in the summer of 2017. The FBI special agent investigating the robberies believed that they were connected because the man depicted on bank surveillance footage at each robbery appeared to be the same person and followed a similar modus operandi: he parked several blocks away from the targeted bank, entered the bank, and then handed the teller a note, which said something similar to "I have a gun, give me money."
Law enforcement began to suspect that Varnado was involved in the bank robberies based on a tip from a "concerned citizen" who had gone to one of the robbed banks and identified Varnado as the robber. The FBI eventually made the tipster a confidential human source (CHS) to help protect his identity, and the CHS provided the special agent with information about Varnado. The CHS reported that Varnado had attempted to rob banks with two other unidentified individuals. The CHS also reported that he thought Varnado had a gun because he had seen a bulge resembling a holster. The CHS told the special agent that he, the CHS, was not personally involved in the robberies and that he was unaware ofhow much money was taken in the robberies. The CHS did not provide physical descriptions, names, or nicknames for the other individuals reported to be involved with Varnado in the robberies. The CHS had never worked with the FBI before and had no record of reliability as an informant. The special agent testified that the CHS had a criminal record, which included a crime of dishonesty, but that the CHS was not receiving any leniency in his cases in exchange for the information that he provided the FBI. The FBI paid the CHS $3,200 over two payments for his information.
Based on the information from the CHS, the special agent looked up Varnado's driver-and-vehicle-services (DVS) photograph and his criminal record. The special agent believed that Varnado's DVS picture matched the individual in the surveillance footage of the robberies. He also determined that, based on Varnado's criminal record, state law prohibited Varnado from possessing a firearm.
On October 10, 2017, the CHS called the special agent to tell him that Varnado was going to participate in another bank robbery. The CHS identified the address where Varnado was at the moment, and law enforcement set up surveillance of the address. The CHS also informed the special agent that Varnado had told the CHS that he needed a car and would pay to use one. With the CHS's consent, law enforcement placed a global positioning system (GPS) tracker on a vehicle, which the CHS was to provide to Varnado.
While surveilling the CHS-identified address, law enforcement observed Varnado meeting with T.G., who had a previous conviction for bank robbery. After that, an unidentified individual delivered the vehicle with the GPS tracker to Varnado and T.G. Varnado and T.G. left in the vehicle, and law enforcement followed them to aneighborhood that had a bank. The vehicle looped around the neighborhood of the bank multiple times, appearing to search for a parking spot, but then began to head away from the bank; law enforcement believed that Varnado and T.G. had become aware of the surveillance. Soon after, law enforcement stopped the vehicle.
After stopping the vehicle, law enforcement ordered the driver, T.G., out of the car. On his own initiative, as law enforcement placed him in restraints, T.G. told law enforcement that Varnado had a gun in the glovebox of the vehicle. Law enforcement searched the vehicle and found a gun in the glovebox.
The state charged Varnado with possession of ammunition or a firearm by an ineligible person and later added charges for conspiracy to commit first-degree aggravated robbery and attempted second-degree aggravated robbery. Before trial, Varnado moved to dismiss the aggravated-robbery charges for lack of probable cause and to suppress the firearm as the fruit of an illegal stop. The state dismissed the attempted second-degree aggravated robbery charge for lack of evidence. The district court then granted Varnado's motion to dismiss the charge of conspiracy to commit first-degree aggravated robbery, concluding that there was insufficient evidence of an overt act in furtherance of the conspiracy. The district court also denied Varnado's motion to suppress the firearm.
Varnado waived his right to a jury trial. On the second day of the ensuing bench trial, Varnado elected to discharge his public defender and to proceed pro se. The district court found Varnado guilty of possession of ammunition or a firearm by an ineligible person. It then sentenced Varnado to 60 months' imprisonment.
This appeal follows.
Varnado argues that the district court should have suppressed the firearm as the fruit of an unlawful seizure. When examining a district court's suppression ruling, appellate courts review the district court's factual findings for clear error and its determination of reasonable suspicion of illegal activity de novo. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
Both the United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. "The touchstone of the Fourth Amendment is reasonableness." State v. Johnson, 813 N.W.2d 1, 5 (Minn. 2012) (quotation omitted). Generally, warrantless searches and seizures are per se unreasonable. State v. Horst, 880 N.W.2d 24, 33 (Minn. 2016). That said, "an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000)). "[T]he reasonable suspicion standard is not high" and is "less demanding than probable cause or a preponderance of the evidence." Id. (quotations omitted). Still, law enforcement "must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity." Id. (quotations omitted).
"The reasonable suspicion standard can . . . be met based on information provided by a reliable informant." Id. This court has identified six factors that are relevant in assessing the reliability of a confidential, but not anonymous, informant:
(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), review denied (Minn. June 15, 2004). Courts evaluate the reliability of an informant using a totality-of-the-circumstances analysis. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).
Varnado argues that law enforcement did not have a reasonable, articulable suspicion to justify stopping the tracked vehicle because the officers were acting on a confidential informant's unreliable tip. He does not claim that police officers did not have a basis to search the vehicle after they stopped it and T.G. told them that Varnado had a gun. We therefore consider whether the CHS's tip was reliable and provided a reasonable, articulable suspicion for law enforcement to stop the tracked vehicle.
Some of the Ross factors for assessing a confidential informant's reliability are uncontested: the parties agree that the CHS came forward voluntarily, had not previously provided information to law enforcement, and did not engage in a controlled purchase. Thus, Ross factor (4) supports concluding that the CHS tip was reliable, while factors (2) and (5) do not apply. The parties dispute the remaining three Ross factors.
Varnado argues that the CHS was not a first-time citizen informant under Ross factor (1). He cites the CHS's criminal record and also argues that the FBI special agent did not take enough steps to verify that the CHS was not involved with the bank robberies.
The parties do not dispute that the CHS was a first-time informant; instead, they argue over whether he was a citizen informant. "[S]tatements from citizen witnesses, as opposed to criminal informants, may be presumed to be credible." State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999). A first-time citizen informant is presumed reliable when they have "not been...
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