State of Minnesota v. David Michael Kepner

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1708

State of Minnesota,
Respondent,

vs.

David Michael Kepner,
Appellant.

Filed August 22, 2016
Affirmed
Hooten, Judge

Scott County District Court
File No. 70-CR-14-8294

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and

Muehlberg, Judge.


Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

HOOTEN, Judge

On appeal from his conviction of first-degree possession of a controlled substance,

appellant argues that his conviction must be reversed because the district court erred by

denying his motion to suppress evidence discovered after a search of his business and

person pursuant to a search warrant. We affirm.

FACTS

In May 2014, Southwest Metro Drug Task Force Agent Krautkremer applied for a

search warrant, providing the following information in his supporting affidavit. Shortly

before noon on May 13, 2014, Scott County Deputy Aszmann observed a silver

Volkswagen Jetta parked in front of Absolute Towing/Smash Auto Body (Absolute

Towing). Deputy Aszmann was familiar with Absolute Towing and had executed a search

warrant at the business in September 2012, resulting in the recovery of methamphetamine.

Approximately ten minutes after observing the Jetta at Absolute Towing, Deputy Aszmann

saw the same vehicle and stopped it for an illegal window tint. The driver of the Jetta told

Deputy Aszmann that he and his passenger were coming from the auto body shop. During

the traffic stop, Deputy Aszmann recovered approximately 80 grams of suspected

methamphetamine from the driver. The driver told Deputy Aszmann that his passenger

had also placed methamphetamine in her vagina. After being advised of her Miranda

rights, the passenger admitted that she had concealed methamphetamine in her vagina and

turned over approximately 17.6 grams of methamphetamine. The substances recovered

from the driver and the passenger field tested positive for methamphetamine.

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 That same day, the driver spoke with Deputy Aszmann and Agent Krautkremer.1

The driver told the officers that he and the passenger had picked up methamphetamine at a

business matching the description of Absolute Towing within the previous 24 hours. The

driver stated that a man in his late 40s or early 50s with gray hair and a beard had provided

them with the methamphetamine. Deputy Aszmann was familiar with appellant David

Michael Kepner and knew that the driver’s description of the man who had provided the

methamphetamine matched that of Kepner. Deputy Aszmann showed the driver Kepner’s

Department of Vehicle Services (DVS) photograph, and the driver identified Kepner as the

individual who had provided the methamphetamine. The driver stated that he saw

approximately one pound of methamphetamine in a drawer in Kepner’s office. The driver

said that the passenger had $560 when they arrived at Absolute Towing, but only $20 when

they left. The driver stated that he had not made any stops after leaving Absolute Towing

before being pulled over by Deputy Aszmann.

The district court issued a search warrant for Absolute Towing and Kepner, and law

enforcement discovered approximately 77.2 grams of methamphetamine upon executing

the search warrant. Kepner was charged with one count of first-degree possession of a

controlled substance. Kepner moved to suppress the evidence discovered as a result of the

search and to dismiss, arguing that the search warrant was not supported by probable cause.

The district court denied the motion. Pursuant to Minn. R. Crim. P. 26.01, subd. 4, Kepner

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The affidavit in support of the search warrant identifies the driver as well as a cooperating
defendant. As the district court noted, however, the cooperating defendant is clearly the
driver.

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waived his right to trial and stipulated to the state’s case in order to obtain appellate review

of the district court’s pretrial ruling. The district court found Kepner guilty of the charge

and sentenced him to 76 months. This appeal followed.

DECISION

Kepner argues that his conviction must be reversed because the district court erred

by concluding that the search warrant application established probable cause for issuing

the search warrant. The United States Constitution and the Minnesota Constitution require

that a search warrant be supported by probable cause. U.S. Const. amend. IV; Minn. Const.

art. I, § 10; see Minn. Stat. § 626.08 (2012) (“A search warrant cannot be issued but upon

probable cause . . . .”). Probable cause to issue a search warrant exists when “there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted). “[W]hen reviewing

a district court’s probable cause determination made in connection with the issuance of a

search warrant, an appellate court should afford the district court’s determination great

deference.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). “An appellate court

reviews a district court’s decision to issue a warrant only to consider whether the issuing

judge had a substantial basis for concluding that probable cause existed.” Id. Appellate

courts use a totality of the circumstances test to determine whether the issuing judge had a

substantial basis for finding probable cause. State v. Holiday, 749 N.W.2d 833, 839 (Minn.

App. 2008).

“In determining probable cause, the [judge] must consider the veracity and basis

of knowledge of persons supplying hearsay information.” State v. Souto, 578 N.W.2d 744,

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750 (Minn. 1998) (quotations omitted). Six factors aid in evaluating the credibility and

reliability of an 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).

The record shows that the first, fourth, and fifth factors provide no or minimal

assistance in the evaluation of the credibility and reliability of the informant. Because law

enforcement had just discovered that the driver was in possession of approximately 80

grams of methamphetamine when he provided information regarding the criminal acts of

his passenger and Kepner, the driver here was more akin to a “stool pigeon” or a member

of “the criminal underworld” than a first-time citizen informant. See State v. Ward, 580

N.W.2d 67, 71–72 (Minn. App. 1998) (“[C]ourts remain reluctant to believe the typical

‘stool pigeon’ who is arrested and who, at the suggestion of the police, agrees to cooperate

and name names in order to curry favor with the police.” (alteration omitted) (quotation

omitted)). While there is no indication in the record that the driver was offered any deal in

exchange for his information, it is clear that the driver provided the information after

Deputy Aszmann discovered approximately 80 grams of methamphetamine in the driver’s

vehicle. Given the circumstances of the driver’s statement, it is unclear to what extent he

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voluntarily provided the information. Moreover, no controlled buy occurred here that

would demonstrate the driver’s credibility.

With regard to the second factor, the affidavit in support of the search warrant

provides that the driver “has provided reliable information to law enforcement in the past

which has resulted in an arrest.” It is unclear whether this statement refers to the fact that

the driver told Deputy Aszmann that the passenger had concealed methamphetamine in her

vagina or to a previous incident. Whether or not this statement refers to the information

the driver provided regarding the passenger, this factor provides relatively minimal support

regarding the driver’s reliability, as the affidavit establishes that the driver provided

information that led to one arrest, but does not establish that the driver had provided reliable

information over a period of time to law enforcement.

With regard to the third factor, however, Deputy Aszmann was able to corroborate

a number of facts provided by the driver. First, Deputy Aszmann was able to corroborate

the driver’s information regarding the fact that the passenger had placed methamphetamine

in her vagina because the passenger removed the methamphetamine from her vagina.

Second, Deputy Aszmann was able to corroborate that the driver and the passenger had

just come from Absolute Towing, where they obtained the methamphetamine, because

Deputy Aszmann had personally observed the Jetta at Absolute Towing approximately ten

minutes before he stopped the vehicle. Third, based on his knowledge of Kepner, Deputy

Aszmann knew that the driver’s description of the man who sold him methamphetamine

matched that of Kepner and, using Kepner’s DVS photograph, was able to confirm that

Kepner was the man who had sold the methamphetamine. Finally, in addition to the

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driver’s information regarding Kepner’s recent possession of methamphetamine, Deputy

Aszmann was familiar with both Absolute Towing and Kepner and had executed a search

warrant on Absolute Towing 20 months previously, which resulted in the recovery of

methamphetamine. This corroborating information provides substantial indication of the

driver’s reliability.

Additionally, the driver admitted that he had obtained methamphetamine from

Kepner, a statement against his interest. The fact that an informant made a statement

against his or her own interest “is of some minimal relevance in a totality-of-the-

circumstances analysis of probable cause.” State v. McCloskey, 453 N.W.2d 700, 704

(Minn. 1990). The driver’s admission therefore provides minimal indication of his

reliability.

Given the substantial corroboration of the information provided by the driver as well

as the fact that the driver made a statement against his interest, the district court did not err

in finding that the driver was credible. We conclude that the district court did not err in

concluding that the information provided by the driver, combined with independent

corroboration of law enforcement, was sufficient to conclude that, under the totality of the

circumstances, a fair probability existed that evidence of a crime would be found in

Absolute Towing or on Kepner. Therefore, the district court properly denied Kepner’s

motion to suppress.

Affirmed.

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