State of Minnesota, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0273

State of Minnesota,
Respondent,

vs.

Brian Anthony Varnado,
Appellant.

Filed February 10, 2020
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-25701

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, Pr esiding Judge; Cleary, Chief Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Brian Anthony Va rnado challenges his conviction for possession of
ammunition or a firearm by an ineligible pers on. Varnado argues that the district court

2
erred when it allowed the state to introduce evidence found during the search of a vehicle
in which he was a passenger, because law enforcement 1 lacked a sufficient legal basis to
stop the vehicle in the first place. We affirm.
FACTS2
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 appear ed 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 ha nded 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 “concerne d 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 provid ed the special agent with
information about Varnado. Th e 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 of

1 “Law enforcement” refers to the law-enforcement officers involved in this case from the
Federal Bureau of Investigation (FBI), the Hennepin County Sher iff’s Office, and the
St. Anthony Police Department.

2 The following facts are based on the district court’s findings of fact made after an
evidentiary hearing on January 12, 2018.

3
how much money was taken in the robbe ries. The CHS did not provide physical
descriptions, names, or nicknames for the ot her individuals reported to be involved with
Varnado in the robberies. The CHS had neve r 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 crim e of dishonesty, but that th e CHS was not receiving any
leniency in his cases in exch ange for the information that he provided th e 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, base d 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 robb ery. 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 addr ess, law enforcement observed Varnado
meeting with T.G., who had a previous co nviction 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 a

4
neighborhood that had a bank. The vehicle looped around the neighborhood of the bank
multiple times, appearing to search for a parking spot, but th en began to head away from
the bank; law enforcement believed that Va rnado 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 possessi on 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 la ck of probable cause and to suppress the
firearm as the fruit of an ille gal 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 in sufficient evidence of an over t 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.

5
D E C I S I O N
I. Law enforcement had a reasonable, arti culable suspicion to stop the vehicle.
Varnado argues that the district court should have suppressed the firearm as the fruit
of an unlawful seizure. When examining a di strict court’s suppression ruling, appellate
courts review the district court’s factual fi ndings 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. Co nst. 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 mo re 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:

6
(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 di d not have a reasonable, articulable
suspicion to justify stopping the tracked vehicle because th e 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 sto pped 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 confiden tial informant’s reliability are
uncontested: the parties agree that the CHS came forward vo luntarily, had not previously
provided information to law enforcement, a nd 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.

7
A. The CHS is not a first-time citizen informant.
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 wa s a first-time informant; instead, they
argue over whether he was a c itizen informant. “[ S]tatements from citiz en witnesses, as
opposed to criminal informants, ma y 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 involved in the criminal underworld.” State v. Ward, 580 N.W.2d 67,
71 (Minn. App. 1998). When law enforcem ent relies on information provided by a first-
time citizen informant, at le ast when applying for a wa rrant, law enforcement “must
specifically aver that the informant is not involved in criminal activity.” Id.
Here, the CHS has a criminal record, wh ich includes a crime of dishonesty. The
CHS’s criminal history implies that he is “i nvolved in the criminal underworld,” and the
state offers nothing to disprove this. T hus, the CHS’s information would not be
presumptively reliable as information from a first-time citizen informant.
The state argues that the CHS is a first-time citizen informant in part because he was
not receiving any leniency for his previous crimes. The state also argues that law
enforcement had no reason to suspect that the CHS was an acco mplice and that law
enforcement concluded that the CHS was not involved in the robberies. These arguments,
however, do not fully address the broader question of whether the informant was involved

8
in the criminal underworld, and the limited in formation in the record shows that the CHS
was.
The state cites McCloskey for the proposition that an in formant’s criminal record
alone does not reduce the informant’ s credibility. 453 N.W.2d at 700. In McCloskey, the
supreme court determined that an informan t was reliable, even though the informant
admitted to purchasing mar ijuana from the defendant. Id. at 703. But the supreme court
reached this conclusion by considering the totality of the circumstances, not by presuming
the informant was reliable. Id. Indeed, the supreme court stat ed that the admitted crime,
along with the informant’s decision to remain anonymous, disqualified the informant as a
citizen informer of presumed honesty. Id.
In sum, the CHS’s criminal record a nd previous convictio n for a crime of
dishonesty, with no evidence to the contra ry, show that the CHS was involved in the
criminal underworld. The state’s arguments that the CHS did not receive leniency for his
previous offenses and that la w enforcement concluded that the CHS was not involved in
the robberies under investigation are insufficient to show that he is a first-time citizen
informant.
B. Law enforcement corrob orated the information that the CHS provided.
Varnado argues that law enfo rcement did not meaningfully corroborate any of the
CHS’s information under Ross factor (3). He claims that law enforcement identified
Varnado in the surveillance video with a misleading identification procedure and otherwise
only corroborated innocuous in formation, such as Varnado’ s location at a house and his
desire to borrow a car.

9
“[T]he fact that police can corroborate part of the informer’s tip as truthful may
suggest that the entir e tip is reliable.” State v. Siegfried , 274 N.W.2d 113, 115 (Minn.
1978). “Even corroboration of minor details lends credence to an informant’s tip.” State v.
Holiday, 749 N.W.2d 833, 841 (Minn. App. 2008). The corroboration of easily obtained
facts and conditions, however, does not e nhance the reliability of an informant. See State
v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).
Varnado claims that law enforcement did not corroborate CHS’s information
because the CHS did not provide much information to be corroborated; he argues that the
CHS left out numerous details and provided no first-hand information related to the
robberies themselves. He highlights that the CHS did not see a firearm but merely assumed
that there was one because he saw a bulge resembling a holster. He also points out that the
CHS did not specify which bank Varnado intended to rob, when he intended to do it, what
route Varnado would take to the bank, or that T.G. was a potential accomplice.
While it is true that the CHS did not fully explain the basis for his knowledge and
lacked details on many aspects of the alleged bank robbery scheme, law enforcement was
still able to corroborate the in formation that the CHS did pr ovide. As the district court
discussed, law enforcement’s surveillan ce corroborated the CHS’s information of
Varnado’s name, the location where he could be found, and the date that an alleged offense
would occur. Law enforcement further corroborated Varnado’ s identity as a suspect by
comparing his DVS photo to the surveillance footage of the earlier bank robberies; while,
as Varnado argues, this is an imperfect me ans of identification, law enforcement still

10
verified that the CHS provid ed the name of someone whos e DVS photo was consistent
with the footage of the bank robber.
Law enforcement also corro borated the CHS’s information regarding Varnado’s
alleged plan to rob a bank on October 10, 2017. The CHS correctly identified that Varnado
wanted to borrow a car for the day of the alle ged offense. Then, on the day that the CHS
claimed that Varnado planned to rob a bank , Varnado and T.G. us ed the borrowed car
provided by the CHS to drive near a bank. Once they neared the bank, Varnado and T.G.
began circling neighborhood streets within a couple of blocks of it. Even though the charge
related to a conspiracy to rob the bank was eventually dismissed, these facts corroborate
the CHS’s tip that Varnado planned to rob a bank that day.
Thus, we conclude that law enforcement corroborated the CHS’s tip and that this
corroboration supports the conclusion that the CHS’s information was reliable.
C. While the CHS may have provided information against his interests, it
has minimal probative value of the CHS’s reliability.
The state argues that the CHS provided information against his interests under Ross
factor (6) because the CHS had concerns that providing the information to law enforcement
would affect his safety and his standing in the community. The district court rejected this
argument, concluding that there was not en ough information to determine whether the
statements truly were against the CHS’s interests.
The CHS’s interest in his safety is clearly valid. Cf. McCloskey, 453 N.W.2d at 704
(describing an informant’s fear of retribution as a “good reason” to remain anonymous).
Yet some degree of safety interest would pres umably apply in most, if not all, informant

11
cases because there will often be the possibility of retribution. Furthermore, the CHS also
received $3,200 in cash payments for his information. With no additional information, it is
difficult to weigh the CHS’s safety interest against his financial interest and reach a
conclusion about whether the decision to inform the police was against the CHS’s interests
on the whole.
Thus, while we conclude that the CHS di d provide information against his safety
interest, the limited detail in the record about this safety interest means it has minimal
probative value in the totality-of-the-circumstances analysis of the CHS’s reliability.
D. On the whole, the CHS tip was re liable and provided law enforcement
with a reasonable, articulable suspicion to stop the vehicle.
Applying all of the Ross factors and considering the to tality of the circumstances,
we conclude that the information provided by the CHS was reliable. The CHS voluntarily
came forward and identified Varnado as involved in earlier bank robberies, which the FBI
special agent corroborated by comparing Varnado’s photo with surveillance footage from
the earlier robberies. The CHS also informed law enforcement about Varnado’s plan to rob
a bank, which law enforcement corroborated by monitoring Varnado and observing him
ride in a borrowed car to and around a bank on the day that CHS said Varnado planned to
rob a bank. While the CHS had a criminal record, law enforc ement sufficiently
corroborated the CHS’s information to consider the tip reliable.
Because the CHS tip was reliable, law en forcement had a reasonable, articulable
suspicion that Varnado and T.G. were engaged in a plan to rob a bank. With that reasonable
suspicion that criminal activity was afoot, police officers were justified in making an

12
investigatory stop of the vehicle. See Timberlake, 744 N.W.2d at 393. The district court
did not err by refusing to suppress evidence obtained as a result of the search following the
stop.
II. Varnado’s pro se supplemental brief includes no arguments that warrant the
reversal of his conviction.
Varnado identifies six arguments in his pro se supplemental brief, though aspects of
the claims overlap. We address each of his arguments in turn.
A. The dismissal of the conspiracy char ge does not imply that there was no
basis to stop the tracked vehicle.
Varnado argues that law enforcement di d not have probable cause to stop his
vehicle. This argument, along with most of Varnado’s other arguments, relies on the district
court’s dismissal of the conspiracy-to-co mmit-robbery charge. The district court
determined that, while there was sufficient eviden ce to present the question to the jury
about whether Varnado conspired with T.G., th ere was insufficient ev idence to establish
probable cause that Varnado committed an ov ert act in furtherance of the conspiracy.
Varnado argues that the district court’s determination amounts to a determination that law
enforcement did not have probable cause to st op his vehicle, so the district court should
have suppressed the firearm.
The Fourth Amendment requirement for a police officer to seize a vehicle, however,
is distinct from the probable ca use required to present the cons piracy issue to the jury. In
order to make an investigatory stop of a vehicle, law enforcement must have a reasonable,
articulable suspicion that criminal activity is afoot. See id. In order for the state to bring
charges against a defendant, a court must “d etermine whether probable cause exists to

13
believe that an offense has been committed and that the defendant committed it.” Minn. R.
Crim. P. 11.04. These two legal standards ar e assessed separately: reasonable suspicion
sufficient to justify a stop may exist even if there is insuffi cient evidence to establish the
probable cause to charge an occupant of the vehicle with a specific crime.
Thus, the fact that the district court determined that there was not probable cause to
charge Varnado with conspiracy to commit robbery does not mean that law enforcement
did not have a reasonable suspicion to stop Varnado’s vehicle.
B. The firearm-possession conviction does not violate Varnado’s double-
jeopardy right.
Varnado claims that the district court’s conclusion that “there is a lack of probable
cause for the initial reason that ga ve rise to the stop in the fi rst place” determines all the
related charges, including the firearm-possession charge. Thus, he argues, convicting him
of the firearm-possession charge amounts to double jeopardy.
The federal and state constitutions protec t “against multiple punishments for the
same offense and against a second prosec ution after an acquittal or conviction.” State v.
Jeffries, 806 N.W.2d 56, 60-61 (Minn. 2011). The district court’s order did not acquit
Varnado of the firearm-possession charge, so double jeopardy is not implicated. Varnado’s
belief that the district court’s order should have also determined the firearm-possession
charge does not mean that the state is conducting a second prosecution against him.
C. The stop of Varnado’s vehicle was a lawful seizure.
Varnado’s argument that the gun was a fruit of an unlawful seizure is similar to the
argument made by his counsel. Varnado specif ically takes issue, however, with the FBI

14
special agent’s affidavit, which he describes as a “contradictive affidavit” and “contrary to
the facts.” But Varnado does not describe any of the contradictions in the affidavit, other
than discussing an argument that he made to the district court that “no crime occurred” so
officers should not have stoppe d the vehicle. As discusse d above, however, officers only
need to have reasonable, articulable suspic ion that a crime is afoot to conduct an
investigatory stop of a vehicle. Timberlake, 744 N.W.2d at 393.
D. Varnado’s ineffective-assi stance-of-counsel claim fails.
Varnado claims that his public defender, pr ior to his discharge by Varnado on the
second day of trial, failed to assist him effectively by “intentionally raising issues in a form
of a defense that [would] not be granted in favor of Varnado.” Varnado complains that his
attorney did not move to dismiss the firearm-possession charge and that his attorney failed
to object to the state’s use of leading questi ons on examination of th e FBI special agent.
He also states that his attorney did not raise certain constitutional defenses that he wished
to raise.
To prevail on an ineffective-assistance-o f-counsel claim, an appellant must show
that their “counsel’s performance fell below an objective sta ndard of reasonableness, and
that a reasonable probability ex ists that the outcome would have been different but for
counsel’s errors.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (quotation omitted)
(applying the test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).
These two prongs are known as the performance and prejudice prongs, and appellate courts
need not address both prongs if one is determinative. Id.

15
Varnado does not describe how he was prejudiced by his attorney’s actions. He does
not explain how the result of the proceeding would have been different had his counsel
objected to the state’s leading questions. No r does he identify prejudice caused by his
attorney’s moving to suppress the firearm as evidence instead of m oving to dismiss the
firearm-possession charge. Finally, Varnado does not identify in his brief what
constitutional violations he believes his attorn ey failed to raise at trial. Assuming the
alleged violations are those that Varnado alleges in his appellate brief, we discern no
prejudice from counsel’s failure to raise them at trial since we conclude that none of them
warrants reversing the district court. Because Varnado has alleged no prejudice caused by
his attorney’s representation, his ineffective-assistance-of-counsel claim fails.
E. Law enforcement had a reasonable su spicion that criminal activity was
afoot and thus had the legal authority to stop the vehicle.
Varnado raises an argument n early identical to one of hi s previous arguments that
law enforcement did not have probable cause to stop his vehicle because there was no
“probable cause for the initial reason for the tra ffic stop.” He claims that the vehicle stop
violated his constitutional rights because there was no warrant for his arrest and no felony
or attempt to commit a felony took place on the day of the arrest. He then argues that the
district court’s dismissal of the conspiracy ch arge for lack of probable cause shows there
was no probable cause to stop the vehicle. As discussed above, there was reasonable
suspicion to stop the vehicle based on the CHS’s tip and law enforcement’s corroboration
of the tip, so police officers c ould stop the vehicle based on a reasonable suspicion that
criminal activity was afoot. See Timberlake, 744 N.W.2d at 393.

16
F. The GPS tracking device provid ed information that duplicated
information that law enforcemen t obtained through physical
surveillance.
Varnado also claims that the GPS device placed on the vehicle was illegally placed
without a warrant. He argues that law enforcement inappropriately obtained consent from
the CHS to place a GPS tracker on the vehicle days after already having placed the device.
The government’s installation of a GPS device to monitor a vehicle’s movements
constitutes a search. United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 949 (2012).
The installation of a GPS device is thus unreasonable unless law enforcement obtains a
warrant or one of the wa rrant exceptions applies. State v. Liebl , 886 N.W.2d 512, 516
(Minn. App. 2016). For instance, searches conducted pursuant to consent do not require a
warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973).
Varnado claims that, since the CHS consented to the placement of the GPS tracker
after law enforcement had placed and used th e tracker, his consent was invalid and thus
law enforcement illegally placed the tracker without a warrant . Varnado has provided no
legal authorities for his claim beyond the pro position that the government’s use of a GPS
device to track a vehicle constitutes a search and generally require s a warrant. Appellate
courts decline to reach issues that are inadequately briefed. See State v. Butcher , 563
N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
Furthermore, even if Varnado had sufficiently briefed the issue, and if we concluded
that the consent was invalid, law enforcemen t obtained the same information it got from
the GPS by also physically monitoring the tracked vehicle. If the state does obtain evidence
through an unlawful search, the evidence may still be admissible if the state can show that

17
“the police had an independent source of [the] information.” State v. Hodges, 287 N.W.2d
413, 415 (Minn. 1979); see also Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508
(1984) (“The independent source doctrine allows admission of evidence that has been
discovered by means wholly independent of any constitutional violation.”).
Here, law enforcement monitored the house where the CHS stated Varnado was and
followed Varnado and T.G.’s vehicle as it left the house and drove toward and around the
bank. Thus, even if law enforcement had not placed the GPS tracker on the vehicle, they
would have still obtained the same information through lawful means.
Affirmed.