State of Minnesota v. Zacarias Lopez Sarmiento ( 2014 )


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  •                         This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2012).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A13-1976
    State of Minnesota,
    Respondent,
    vs.
    Zacarias Lopez Sarmiento,
    Appellant.
    Filed November 24, 2014
    Affirmed
    Rodenberg, Judge
    Dakota County District Court
    File No. 19HA-CR-11-4038
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County
    Attorney, Hastings, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and
    Schellhas, Judge.
    UNPUBLISHED OPINION
    RODENBERG, Judge
    Appellant Zacarias Lopez Sarmiento challenges the district court’s denial of his
    motion to suppress methamphetamine seized from him, arguing that the district court
    erred in reopening the omnibus hearing and that appellant’s arrest was unlawful. We
    affirm.
    FACTS
    Special Agent Christopher Hage of the Drug Enforcement Agency (DEA)
    investigated the De la Herran drug trafficking organization (DTO) beginning in 2011.
    Agent Hage learned that the DTO had been transporting controlled substances from
    southern California to Minnesota using modified “load cars”—cars with specially built
    hidden compartments. In June 2011, Agent Hage confirmed the use of such cars by the
    DTO when he observed suspects associated with the DTO drive a Volkswagen sedan into
    a windowless garage. Agent Hage approached the garage and heard hammering and
    other noises consistent with tools being used on a vehicle. When the suspects emerged
    from the garage, they were carrying bags which they attempted to transport to a second
    vehicle. DEA Agents stopped and detained the suspects, obtained a search warrant, and
    searched the bags which contained almost 13 pounds of methamphetamine.         From his
    investigation, Agent Hage concluded that the drugs had been secreted in the Volkswagen.
    The DEA continued its investigation of the DTO and learned that Jose De la
    Herran and his wife, Emma Lopez, were its leaders. A trailer home in Arden Hills was
    determined to be the DTO’s “control center.” On November 10, 2011, DEA agents,
    including Agent Hage, were surveilling the Arden Hills trailer. The agents saw appellant,
    De la Herran, and Lopez exit the trailer home. Agents followed appellant, who left the
    trailer in a white Jeep. He drove to West St. Paul, followed by De la Herran and Lopez.
    DEA agents observed the vehicles being driven in a manner indicating “counter
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    surveillance” maneuvers—making U-turns and driving fast through parking lots in an
    apparent effort by the drivers to detect whether their vehicles were being followed.
    Eventually, and still observed by DEA agents, the vehicles arrived at an apartment
    complex in West St. Paul. Appellant got out of the white Jeep and attempted to start a
    Volkswagen parked in the apartment’s parking lot. While appellant attempted to start the
    Volkswagen, DEA Agents observed De la Herran and Lopez drive around the block. The
    Agents believed this to be another counter-surveillance measure. Appellant had difficulty
    starting the Volkswagen. He was observed making a phone call. De la Herran and Lopez
    returned to the lot and conferred with appellant. Appellant left in the white Jeep and
    returned with jumper cables. Agent Hage suspected the reason the Volkswagen did not
    start right away was because it had likely been sitting in the parking lot for a period of
    time to “cool off”—or remain inactive in order to detect any suspicion concerning the
    vehicle.
    Appellant got the Volkswagen started and agents observed him drive it into a
    windowless garage, where the garage door was then closed. Agents approached the
    garage and could hear pounding and other sounds consistent with tools being used on the
    vehicle. These noises continued for approximately one hour. Appellant then emerged
    from the garage carrying a package, which he placed in the white Jeep. Appellant drove
    off in the white Jeep, with De la Herran and Lopez again following him. The two
    vehicles were again driven as if using counter-surveillance measures.
    At this point, Agent Hage believed he had enough probable cause to arrest
    appellant, De la Herran, and Lopez because the events he observed closely mimicked the
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    events of June 2011, which had resulted in the seizure of methamphetamine.        However,
    to avoid prematurely exposing the DEA’s investigation into the DTO, Agent Hage
    contacted Officer Forsberg of the West St. Paul Police Department to conduct the arrest.
    Agent Hage instructed Officer Forsberg to attempt to find independent probable cause to
    make the stop, but, if he could not do so, Agent Hage ordered him to nevertheless make
    the stop. Officer Forsberg was given a DEA radio and informed generally about the
    operation.
    As instructed, Officer Forsberg followed the white Jeep on Highway 52 to detect
    possible violations of the law.     Focusing on the lower half of the vehicle, Officer
    Forsberg noticed expired license plate tabs. He initiated a traffic stop. Unnoticed by
    Officer Forsberg, the Jeep displayed a 21-day temporary license tag in the rear window.
    Officer Forsberg testified that the white Jeep stopped off the highway in a “no parking”
    zone.    Officer Forsberg requested appellant’s driver’s license and appellant handed
    Officer Forsberg a Mexican driver’s license and other identification. Officer Forsberg
    testified that he believed his training required him to arrest a driver with a license from a
    different country if that driver could not be found in the law enforcement computer,
    because “there is no way for me to verify that that is an actual license.” Pursuant to this
    policy, Officer Forsberg arrested appellant. After he had arrested appellant, Officer
    Forsberg noticed the temporary license in the Jeep’s back window.
    Because the white Jeep was stopped in a “no parking” zone, and according to
    department policy, Officer Forsberg conducted an inventory search of the vehicle and
    arranged for it to be towed. The inventory search revealed approximately 12 pounds of
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    methamphetamine. Appellant was charged with two counts of first-degree controlled
    substances crime, sale and possession in violation of Minn. Stat. § 152.021, subd. 1(1),
    2(1).
    Appellant moved to suppress the evidence seized as a result of the search. At the
    omnibus hearing, he challenged both the legality of the stop and the validity of the
    vehicle search. Appellant argued that the expired tabs on the white Jeep were the only
    reason Officer Forsberg stopped him. Appellant argued that, as soon as Officer Forsberg
    noticed the 21-day temporary license, “the reason for the traffic stop dissipated.” For this
    reason, appellant argued, the traffic stop was illegal and therefore the subsequent arrest
    and inventory search were also illegal. At the omnibus hearing, Officer Forsberg was the
    only witness called to testify.
    Shortly after the close of the first omnibus hearing, respondent moved to reopen
    the omnibus hearing to submit additional testimony from Agent Hage. Respondent
    argued that Special Agent Hage’s testimony was necessary to provide evidence that
    Officer Forsberg arrested appellant based on probable cause under the collective
    knowledge doctrine.      Respondent argued that the state was not put on notice that
    appellant would be disputing that Officer Forsberg arrested appellant based on the
    collective knowledge of the DEA. Appellant objected to reopening the omnibus hearing.
    The district court granted the motion to reopen the omnibus hearing, concluding
    that doing so was in the interest of “full and fair fact finding and judicial economy.”
    During the reopened omnibus hearing, Agent Hage was the only witness to testify.
    5
    The district court denied appellant’s motions, finding Agent Hage’s testimony
    credible. The district court concluded that, pursuant to the collective knowledge doctrine,
    Officer Forsberg had probable cause to arrest appellant based on the DEA investigation
    into the DTO. This knowledge “could be imputed to Officer Forsberg” and therefore
    appellant’s arrest was proper.
    The district court further concluded that the warrantless inventory search of the
    Jeep was authorized by an exception to the Fourth Amendment warrant requirement and
    was not an unlawful expansion of a traffic stop, but rather a “validly conducted search
    prior to towing the vehicle.”
    Appellant was convicted of both counts of first-degree controlled substances
    crimes. This appeal followed.
    DECISION
    I.
    First, appellant claims that the district court erred in reopening the omnibus
    hearing. While the Minnesota Rules of Criminal Procedure do not expressly provide for
    a motion to reopen an omnibus hearing, the Minnesota Supreme Court has approved of
    reopening omnibus hearings when it would give the parties a “full and fair opportunity”
    to meet their burdens of proof. State v. Needham, 
    488 N.W.2d 294
    , 297 (Minn. 1992),
    State v. Papadakis, 
    643 N.W.2d 349
    , 356 (Minn. App. 2002). The supreme court has
    also considered reopening an omnibus hearing preferable in situations where denying a
    motion to reopen would entail the “time, trouble and expense of an appeal.” State v.
    Montjoy, 
    366 N.W.2d 103
    , 107 (Minn. 1985).          The district court has the “inherent
    6
    authority” to grant or deny a motion to reopen an omnibus hearing in its discretion, and
    we review a district court’s decision allowing reopening for an abuse of that discretion.
    See 
    Papadakis, 643 N.W.2d at 356-357
    (holding that a motion to reopen an omnibus
    hearing is within the district court’s discretion, and its decision to deny appellant’s
    motion was not in error in that case); see also State v. Menth, No. !05-1547, 
    2006 WL 1984730
    , at *2 (Minn. App. July 18, 2006) (stating that “we review a district court’s
    decision not to reopen an omnibus hearing under an abuse-of-discretion standard”).
    Here, respondent timely moved to reopen the omnibus hearing. While it is true
    that respondent may have been able to discern from appellant’s motion papers that Agent
    Hage’s testimony would be needed to argue that Officer Forsberg’s stop and arrest were
    proper, Needham requires that a pretrial motion to suppress specify, with particularity,
    the grounds advanced for 
    suppression. 488 N.W.2d at 296
    . Appellant’s motion papers
    did not expressly challenge Officer Forsberg’s reliance on the collective knowledge of
    the DEA investigation of the DTO. The district court, in its discretion, concluded that
    reopening the omnibus hearing was permissible under the circumstances. And the district
    court is, in a circumstance such as this, best situated to determine the fairness of
    reopening the omnibus record. The district court acted within its discretion in allowing
    the omnibus hearing to be reopened.
    II.
    Appellant argues that, because Officer Forsberg’s stop of appellant’s vehicle and
    appellant’s subsequent arrest were impermissible, the resulting evidence must be
    suppressed. Respondent counters that, because Officer Forsberg acted on the collective
    7
    knowledge of the police, the stop and arrest were proper. On appeal from a motion to
    suppress, the district court’s factual findings are reviewed for clear error and its legal
    determinations are reviewed de novo. State v. Gauster, 
    752 N.W.2d 496
    , 502 (Minn.
    2008).
    The collective knowledge doctrine allows police officers to act on the knowledge
    of the entire police force rather than considering the knowledge of each officer
    individually. State v. Conaway, 
    319 N.W.2d 35
    , 40 (Minn. 1982). Under the doctrine,
    the “entire knowledge of the police force is pooled and imputed to the arresting officer
    for the purpose of determining if sufficient probable cause [or reasonable suspicion]
    exists.” 
    Id. Generally, there
    must be some level of communication between the police
    force, although “[a]ctual communication of information to the officer conducting the
    search [or arrest] is unnecessary.” State v. Lemieux, 
    726 N.W.2d 783
    , 789 (Minn. 2007).
    Here, the DEA expressly requested the assistance of the local police to make the
    arrest in order to avoid compromising the DEA’s ongoing investigation. Special Agent
    Hage generally informed Officer Forsberg of the operation and that the investigation into
    the DTO was ongoing. Officer Forsberg was asked to attempt to find independent
    probable cause to arrest.     However, based on the probable cause that the DEA’s
    investigation had developed, Officer Forsberg was told to stop and arrest appellant.
    Additionally, the DEA equipped Officer Forsberg with a DEA radio, which allowed
    Officer Forsberg to listen into the DEA conversation concerning appellant and the
    investigation while Officer Forsberg followed appellant on the highway. This level of
    communication was sufficient for the application of the collective knowledge doctrine.
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    The decision to arrest was made by DEA Special Agent Hage, despite the actual arrest
    having been effectuated by Officer Forsberg.
    The question then becomes whether the collective knowledge of the DEA was
    sufficient to justify the stop and the arrest of appellant. The Fourth Amendment to the
    United States Constitution and Article I, Section 10 of the Minnesota Constitution
    provide for the “right of the people to be secure in their persons, houses, papers, and
    effects” against “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn.
    Const. art. I, § 10. A warrantless arrest requires the officer to have probable cause to
    believe that a crime was committed by the person to be arrested. See In re Welfare of
    G.M., 
    560 N.W.2d 687
    , 695 (Minn. 1997) (explaining the standard for probable cause to
    arrest where officers did not have a warrant to arrest). “A police officer with probable
    cause to arrest the driver of a vehicle may stop the vehicle to make the arrest.” State v.
    Dickey, 
    827 N.W.2d 792
    , 798 (Minn. App. 2013).
    Officer Forsberg, imputed with the knowledge of the DEA, had probable cause to
    arrest appellant. Over the course of five months, the DEA had extensively investigated
    the DTO and its associates. On the day of the arrest, the DEA had observed appellant
    with De la Herran and Lopez, the two people the DEA knew to be the leaders of the
    DTO. And while “mere proximity to criminal activity” cannot establish reasonable
    suspicion or probable cause, Officer Forsberg and the DEA acted on much more than
    appellant’s proximity to criminal activity. State v. Ortega, 
    770 N.W.2d 145
    , 150 (Minn.
    2009). They saw appellant leave a trailer in Arden Hills they had determined was the
    “control center” of the DTO. They observed appellant start a vehicle that had been left in
    9
    a parking lot, apparently to “cool off,” and drive it into a windowless garage. There,
    agents heard noises consistent with someone modifying a vehicle, in a scenario startlingly
    similar to an arrest five months earlier involving another member of the DTO in which 13
    pounds of methamphetamine was seized. Agents also saw appellant leave the garage,
    carrying a package similar to that containing methamphetamine in the earlier arrest, all
    while other agents observed De la Herran and Lopez drive around the windowless garage
    in a manner suggesting that De la Herran and Lopez were watching for law enforcement.
    The overwhelming amount of suspicious activity engaged in by appellant and the
    similarity of that activity to earlier criminal enterprises of the DTO amounted to probable
    cause to believe that appellant was engaged in transporting illegal drugs for the DTO.
    Because Officer Forsberg, imputed with the knowledge of the DEA, had enough facts to
    “entertain an honest and strong suspicion” that appellant committed a crime, he had
    probable cause to arrest appellant. The stop and arrest of appellant were therefore
    permissible.
    III.
    After appellant was stopped and arrested, the Jeep he was driving was impounded
    and subjected to an inventory search.      Appellant challenges the lawfulness of that
    inventory search. The Fourth Amendment to the United States Constitution and Article I,
    Section 10 of the Minnesota Constitution protect the right of the people to be free from
    unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless
    searches are presumptively unreasonable. 
    Gauster, 752 N.W.2d at 502
    . However, there
    are well-defined exceptions to the warrant requirement, one of which is an inventory
    10
    search. 
    Id. Whether an
    inventory search is reasonable turns on whether the underlying
    impoundment was reasonable. State v. Rohde, 
    852 N.W.2d 260
    , 264 (Minn. 2014).
    When a driver is arrested, the Minnesota Supreme Court has recognized that it may be
    necessary for the police to take responsibility for the vehicle through impoundment. 
    Id. at 266
    (citing 
    Gauster, 752 N.W.2d at 507
    ). “[C]ases in which the driver of a vehicle is
    arrested are fundamentally different from cases in which the driver remains free.” 
    Id. Here, and
    as discussed above, Officer Forsberg had lawfully arrested appellant.
    Appellant’s arrest and the location of the Jeep in a “no parking” zone, see Minn. Stat. §
    168B.04, subd. 2(b)(1)(i), reasonably required Officer Forsberg to impound the vehicle.
    Following department policy, and upon the impoundment of the vehicle, Officer Forsberg
    conducted an inventory search. Under the facts here, that inventory search did not offend
    appellant’s Fourth Amendment rights.
    Moreover, and even if we were to conclude that the impoundment was not
    reasonable, Officer Forsberg would have been amply justified in searching the vehicle
    pursuant to yet another exception to the warrant requirement—the automobile exception
    to the Fourth Amendment.       Under the automobile exception, officers may search a
    vehicle when they have probable cause to believe that the vehicle contains contraband.
    
    Gauster, 752 N.W.2d at 508
    . Probable cause requires an officer “to have a reasonable
    belief that incriminating evidence is in a certain location.” 
    G.M., 560 N.W.2d at 695
    .
    Here, the police officers collectively had probable cause to believe that the Jeep
    contained contraband. The DEA, as a result of its extensive investigation of the DTO,
    had a reasonable belief that illegal drugs were likely in the package that appellant had
    11
    carried from the windowless garage to the Jeep. The facts in the record are sufficient to
    conclude that Officer Forsberg, imputed with the knowledge from the DEA, had probable
    cause to believe that there were illegal drugs in appellant’s vehicle at the time of the stop.
    Therefore, Officer Forsberg’s search of appellant’s vehicle was also justified by the
    automobile exception to the Fourth Amendment warrant requirement.
    Affirmed.
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