Opinion
No. C9-97-278.
Filed November 18, 1997.
Appeal from the District Court, Anoka County, File No. K8967062.
Hubert H. Humphrey, III, State Attorney General, and Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, (for appellant).
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges a fifth degree controlled substance conviction determined in a court trial on stipulated facts, contending that (a) a critical search warrant contained material misrepresentations and (b) the record fails to show that he made a valid waiver of his right to a jury trial. We affirm.
DECISION Search Warrant
The police obtained a search warrant for appellant's residence premised on an informant's controlled buy. The officer who applied for the warrant did not disclose in the warrant application (a) that appellant's housemate had told the informant earlier that day that there were "not much drugs left inside the house" and (b) that appellant's housemate drove to Ramsey to pick up the drugs that she sold to the informant.
An omission in the search warrant application renders the warrant invalid only if the omission is material to the determination of probable cause and is deliberately or recklessly withheld by the applicant . State v. Causey , 257 N.W.2d 288, 292 (Minn. 1977). An omission is material only if its inclusion would have destroyed the showing of probable cause for a search. State v. Doyle , 336 N.W.2d 247, 252 (Minn. 1983).
Appellant contends that the officer's omissions are material because of some inference that there were no more drugs at the residence. But that inference is rendered immaterial by evidence and inferences that (a) the housemate did not suggest that drugs were uncommonly kept in the home, and (b) the housemate picked up more drugs on the occasion of the informant's purchase than the .1 gram of cocaine the informant bought. The omission was not material to the finding of probable cause.
2. Voluntariness
Appellant correctly recites that the record should show a personal waiver of a defendant's right to a jury trial. State v. Ulland , 357 N.W.2d 346, 347 (Minn.App. 1984) (stating that the waiver rule is strictly construed and requires a personal waiver by the defendant). The record shows that appellant made a voluntary waiver. Appellant stated that he understood that there would be a court trial as part of his personal agreement for a trial on stipulated facts under State v. Lothenbach , 296 N.W.2d 854 (Minn. 1980). Moreover, appellant acknowledged not simply the procedure that would follow but the fact that the court would find him guilty. This record shows a valid waiver.