United States Court of Appeals

For the Eighth Circuit

 

No. 12-2641

 

United States of America

 Plaintiff - Appellee

v.

Adam Joseph Winarske

 Defendant - Appellant

 

Appeal from United States District Court

for the District of North Dakota

 

Submitted: March 15, 2013

Filed: May 21, 2013

 

Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES, District 1

Judge.

 

HOLMES, District Judge.

The Honorable P.K. Holmes, III, Chief Judge, United States District Court for

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the Western District of Arkansas, sitting by designation.
Adam Joseph Winarske appeals the judgment of the district court following 2

the denial of his motion to suppress evidence seized during a search of his girlfriend’s

vehicle. We affirm.

I.

On June 29, 2012, Winarske was sentenced to a mandatory minimum term of

imprisonment of fifteen years for possessing a firearm and ammunition in violation

of 18 U.S.C. § 922(g). The mandatory minimum term of imprisonment was imposed 

pursuant to 18 U.S.C. § 924(e) because, at the time of the offense, Winarske was

considered an armed career criminal with a history of three previous convictions for

violent felonies. In arresting Winarske, police relied largely on the assistance of an

informant named Michael Fergel. 

In early June of 2011, while Fergel was on state parole awaiting sentencing on

felony charges, he became a confidential informant for law enforcement. Fergel was

put in contact with Bismarck Police Officer Jerry Stein and began supplying Officer

Stein with “tips” about illegal activity taking place in and around the Bismarck area. 

Although Fergel served as an informant for only a month, it is undisputed that in that

time Fergel provided police with accurate information about local criminal activity. 

Specifically, Fergel provided Officer Stein with information about area drug users

and suppliers and disclosed the location of several individuals who were wanted in

connection with about a dozen home burglaries. 

On June 18, 2011, Fergel began communicating with Officer Stein about

another possible crime, this time involving an allegedly stolen handgun offered for

sale by a person named “Adam.” Fergel later told Officer Stein that he thought 

The Honorable Daniel L. Hovland, United StatesDistrictJudge for the District 2

of North Dakota. 

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Adam’s last name was “Winaske.” Fergel also informed Officer Stein that Adamwas

a registered sex offender who had been convicted of corruption of a minor and was

currently being supervised by a probation officer named Brian Weigel. Officer Stein

investigated Fergel’s leads and confirmed that a .38-caliber handgun had recently

been reported stolen from a car in Bismarck approximately two blocks from where

Adam Winarske, a registered sex offender convicted of corruption of a minor, was

residing. Although Fergel was incorrect about the exact spelling of Winarske’s last

name and about the name of Winarske’s probation officer, Fergel had correctly

identified facts about Winarske’s criminal history and supervision status. Officer

Stein later testified at the suppression hearing held by the district court that he knew

Winarske was prohibited from possessing firearms due to his prior felony

convictions.

Winarske agreed to meet Fergel to conduct the sale of the firearm on June 29,

2011, at 1:00 p.m. in the parking lot of a shopping mall. In advance of the meeting,

Fergel advised police as to the meeting time and place; the color, make, and model

of Winarske’s vehicle; and the fact that Winarske’s girlfriend would be present. 

Officer Stein and other officers then set up surveillance at the appointed meeting site

and waited for Winarske to appear. Just before 1:00 p.m., officers observed a male

later identified as Winarske and a female later identified as Winarske’s girlfriend

approach the meeting area and enter a vehicle thatmatched the description previously

provided by Fergel. Since Fergel had remained behind at police headquarters,

officers confirmed Winarske’s identity prior to arrest through two sources who were

present at the scene: Winarske’s supervising probation officer, Tony Soupir, and

Officer Mike Bolme, who wasfamiliar with Winarske fromprevious encounters with

law enforcement. 

Once Soupir and Bolme positively identified Winarske, police advanced on the

vehicle with weapons drawn. Winarske and his girlfriend were removed from the

vehicle and patted down by officers. Winarske was then handcuffed and read his

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Miranda rights. Afterward, Officer Stein asked Winarske if there was a gun in the

car, and Winarske admitted that a .38-caliber revolver was located in a blue bag

behind the passenger’s seat. Officersthen searched the car and promptly located both

the weapon and some ammunition, which Winarske confirmed were his.

After Winarske was charged, he moved to suppress the gun and ammunition

seized from the vehicle, arguing that the items were seized without a warrant in

violation of his Fourth Amendment rights. The district court denied the suppression

motion and allowed both the firearm and ammunition to be introduced as evidence. 

Subsequently, Winarske entered a conditional guilty plea to the pending charge and

reserved the right to appeal the district court’s decision regarding the suppression of

evidence.

Winarske now argues on appeal that police improperly based their probable

cause determination on information supplied by an untested, unreliable informant. 

Because of this, Winarske contends that the search of his vehicle without a warrant

was made in violation of the Fourth Amendment, and the weapon and ammunition

that were recovered during the search must be suppressed. 

II.

We review de novo a district court’s denial of a motion to suppress evidence, 

“evaluating only for clear error, however, any findings of fact by the trial court and

giving appropriate deference to the inferences apparently drawn from those facts by

law enforcement officers . . . and the trial court.” United States v. Smith, 266 F.3d

902, 904 (8th Cir. 2001) (quotation omitted). 

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A.

Winarske argues that officers lacked probable cause either to arrest him or to

search his girlfriend’s vehicle. We first examine whether there was probable cause

to arrest Winarske without a warrant. A warrantless arrest by law enforcement is

reasonable where there is probable cause to believe that someone has committed or

is committing a crime. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “To

determine whether an officer had probable cause to arrest an individual, we examine

the events leading up to the arrest, and then decide whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to

probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation

omitted). 

Arresting officers are not required to witness actual criminal activity or have

collected enough evidence so as to justify a conviction for there to be a legitimate

finding of probable cause to justify a warrantless arrest. United States v. Webster,

625 F.3d 439, 442 (8th Cir. 2010). Instead, the mere “probability or substantial

chance of criminal activity, rather than an actual showing of criminal activity,” is all

that is required. United States v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005). In

making a probable cause determination, “[l]aw enforcement officers have substantial

latitude in interpreting and drawing inferences from factual circumstances.” United

States v. Henderson, 613 F.3d 1177, 1181 (8th Cir. 2010) (internal quotation

omitted). 

The district court correctly concluded that, based on the information provided

by Fergel, police had probable cause to arrest Winarske for illegally possessing a

firearm. “When an informant has provided reliable information in the past or where

his tip was independently corroborated, a court may deem the informant’s tip

sufficiently reliable to support a probable cause determination.” United States v.

Caswell, 436 F.3d 894, 898 (8th Cir. 2006). “An informant may establish the

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reliability of his information by establishing a track record of providing accurate

information.” United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995) (citing

Illinois v. Gates, 462 U.S. 213, 233 (1983)). However, if an informant is otherwise

unknown to police and has no proven track record of reliability, police may deem an

informant credible and make a finding of probable cause when an informant’s

information is at least partly corroborated. Id. An informant may also prove himself

to be a reliable source for law enforcement by providing predictive information about

a meeting time or place. Brown, 49 F.3d at 1349 (informant’s prediction that

defendant would arrive at a particular location increased probability that other

information previously provided by informant was also correct); United States v.

Taylor, 106 F.3d 801, 803 (8th Cir. 1997) (confidential informant with a criminal

record whose reliability was otherwise unknown to police established reliability by

correctly predicting date and location of drug transaction); United States v.

Rodriguez, 414 F.3d 837, 843 (8th Cir. 2005) (probable cause established by

defendant appearing at correct time and place for scheduled drug transaction). 

Here, police had ample cause to find Fergel to be a reliable informant. First, 

Fergel established a track record of providing accurate information on local criminal

activity to law enforcement. Second, early in the investigation he provided certain

3

identifying information about Winarske that was independently corroborated by

police, including Winarske’s first and last names, criminal history, and supervision

Although Winarske makes much of Fergel’s criminal history and argues that 3

Fergel’s background renders himan unreliable source, Winarske does not dispute that

Fergel supplied accurate information to law enforcement about crimes taking place

in the Bismarck area, including details involving drug trafficking activity and a

number of home burglaries. That Fergel may have participated in the burglary

activity he reported to police is irrelevant to an analysis of Fergel’s credibility as an

informant. We, like the district court, are persuaded that Fergel was a reliable source,

in part because his tips were accurate enough to lead police to solve about a dozen

open burglary cases.

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status. Third, Fergel provided predictive information about the time and place of a

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planned meeting with Winarske to engage in criminal activity. 

Given the totality of the circumstances in this case, it was reasonable for law

enforcement to believe that there was at least a probability or substantial chance of

criminal activity occurring when Winarske arrived at the place and time designated

by Fergel to transact a firearmsale. Accordingly, we find that Winarske’s warrantless

arrest was supported by probable cause. 

 

B.

Next we analyze whether probable cause existed to search Winarske’s vehicle

and seize the firearmand ammunition found in the search. Although the district court

determined that Winarske was placed under arrest at the scene, presumably for illegal

possession of a firearm by a convicted felon, Winarske maintains in his brief on

appeal that “[t]he record is unclear whether Winarske was actually arrested at this

point or, if he was, for what.” 

Winarske does not dispute that when police encountered himin his vehicle, the

following sequence of events occurred: first, police removed him from the vehicle;

second, he was handcuffed and patted down; and third, he was read his Miranda

rights. It was only after Winarske’s Miranda warnings were given that police asked

him about the firearm. Winarske then voluntarily admitted that the weapon was

located in a blue bag behind the passenger’s seat. Considering these facts, we agree

with the district court that a search of the vehicle was constitutional, as “[p]olice may

search a vehicle incident to a recent occupant’s arrest only if the arrestee is within

Winarske points out that some of the information Fergel provided about him

4

was incorrect, such as the spelling of his last name and the name of his supervising

probation officer. We are persuaded that these errors are insignificant, particularly

when measured against the accurate information Fergel provided. 

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reaching distance of the passenger compartment at the time of the search or it is

reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona

v. Gant, 556 U.S. 332, 351 (2009). Here, it was reasonable for police to believe that

Winarske’s girlfriend’s vehicle contained evidence ofthe offense of arrest in the form

of the firearm. 

Our decision is not altered by the possibility that Winarske was not under arrest

at the time of the search. We have already determined that police had probable cause

to suspect that Winarske arrived at the pre-determined meeting place and time

designated by Fergel with the intent to conduct a firearm sale. It follows that police

had probable cause to suspect that Winarske possessed a weapon or weapons either

on his person or in his vehicle at the time of the meeting. Under the “automobile

exception” to the Fourth Amendment, police may conduct a warrantless search of a

vehicle if there is probable cause to believe that the vehicle contains contraband or

other evidence of a crime. United States v. Kennedy, 427 F.3d 1136, 1140-41 (8th

Cir. 2005); see also United States v. Hambrick, 630 F.3d 742, 747 (8th Cir. 2011)

(holding that officers have probable cause to search a vehicle under the automobile

exception if they reasonably believe, based upon a reliable source, a fair probability

exists that contraband would be found in the vehicle), cert. denied, 131 S.Ct. 2919

(2011). The police in this case had probable cause to believe that Winarske’s

girlfriend’s vehicle contained contraband, namely the firearm.

We also affirm the district court’s finding that Winarske’s post-Miranda

admission to police about the location of the weapon in the vehicle provided an

independent basis to find probable cause to conduct a search. United States v.

McCarty, 612 F.3d 1020, 1026 (8th Cir. 2010) (defendant’s post-Miranda admission

that there was marijuana in his car established probable cause to search car for

marijuana). For all of these reasons the fruits of the search cannot be suppressed. 

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The district court’s denial of Winarske’s motion to suppress is affirmed.

 

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