Opinion
No. A05-341.
Filed August 2, 2005.
Appeal from the District Court, Otter Tail County, File No. K5-04-1558.
Mike Hatch, Attorney General, and
David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, (for appellant).
Mark D. Nyvold, (for respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from a pretrial order suppressing evidence and dismissing the charges against respondent, the state argues that the district court erred by concluding that the application for a search warrant was not supported by probable cause. Because we find no error, we affirm.
FACTS
On August 23, 2004, Fergus Falls police obtained a search warrant for the residence of respondent Jerry Lee Olson. The affidavit submitted with the search-warrant application contained information from two confidential informants. The affidavit stated that the first confidential informant (CI-1) twice attempted to purchase methamphetamine from Olson, both times under police surveillance. The affidavit also stated that the second confidential informant (CI-2) told police that (1) he was a regular user of methamphetamine, (2) he had recently purchased methamphetamine from Olson, (3) Olson sold large quantities of methamphetamine, and (4) Olson had several guns at his home. The affidavit indicated that the police had verified Olson's address.
The police executed the search warrant and seized more than 40 grams of methamphetamine, several items of drug paraphernalia, and four guns, two of which had the serial numbers scratched off. Olson was charged with two counts of first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subds. 1(1), (2)1, 3(a) (2004); one count of theft, in violation of Minn. Stat. § 609.52, subds. 2(11), 3(1) (2004); and one count of illegal possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(j)(3) (2004).
At a pretrial hearing, Olson moved to suppress the evidence seized by police and to dismiss the charges on the ground that the state's application for the search warrant failed to establish probable cause. The district court granted Olson's motion and dismissed the charges. The state's appeal follows.
DECISION
On appeal from a pretrial order suppressing evidence, the state must demonstrate that the district court has clearly and unequivocally erred and that the error, unless reversed, will have a critical impact on the state's ability to successfully prosecute the defendant. State v. Horner, 617 N.W.2d 789, 792 (Minn. 2000). Because the district court dismissed the charges against Olson, we conclude that the suppression of the evidence had a critical impact on the state's ability to prosecute Olson. See State v. Trei, 624 N.W.2d 595, 597 (Minn.App. 2001) (noting that the dismissal of charges satisfies the critical-impact requirement), review dismissed (Minn. June 22, 2001).
The United States and Minnesota constitutions provide that no warrant shall issue without a showing of probable cause. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. Generally, a search is lawful only if it is executed with a valid search warrant issued by a neutral and detached magistrate upon a finding of probable cause. See Minn. Stat. § 626.08 (2004); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). To determine whether probable cause exists, the issuing magistrate must make a practical, common-sense decision whether 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) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). The magistrate should consider the totality of the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay information. Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332).
We review the search-warrant application to determine whether the issuing magistrate had a "substantial basis" to conclude that probable cause exists. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). A magistrate has a substantial basis when there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). We give great deference to the issuing magistrate's probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).
The state argues that the district court erred by concluding that the search warrant was not supported by probable cause because the "totality of the circumstances indicates that more than sufficient probable cause was included in the application." The district court's concern with the search warrant was that the supporting affidavit failed to adequately demonstrate the reliability of the two confidential informants.
When an informant's tip provides the probable cause to issue a search warrant, the court should consider the informant's reliability and the basis of the informant's knowledge. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). Olson did not dispute the basis of the informants' knowledge at the district court but instead challenged their reliability. There are six considerations when determining the reliability of a confidential informant: (1) first-time citizen informants are presumably reliable; (2) informants who have given reliable information in the past are likely to be currently reliable; (3) an informant's reliability can be established by police corroboration of the information; (4) an informant is presumably more reliable if the informant comes forward voluntarily; (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 information in the affidavit submitted with search-warrant application does not satisfy any of the considerations supporting the reliability of CI-1. Although the affidavit states that CI-1's attempted purchases of methamphetamine were conducted under police surveillance, neither incident is described as a "controlled purchase." In narcotics cases, "where the affidavit refers to a `controlled purchase,' the magistrate may accept this as a term of art and presume" reliability. Ward, 580 N.W.2d at 71; see also Ross, 676 N.W.2d at 304. But "because `controlled purchase' is an accepted term of art, the most logical assumption is that this was not a controlled purchase because an experienced drug enforcement officer would have identified it as such in the affidavit." Ward, 580 N.W.2d at 73. Other than these attempted purchases, the affidavit contains no other information regarding the reliability of CI-1.
The only information in the affidavit that supports CI-2's reliability is his admission that he is a regular user of methamphetamine and the police corroboration of Olson's address. CI-2's admission that he is a methamphetamine user is a statement against his interests, but caselaw suggests that this type of admission is only minimally relevant and supports a determination of reliability only when other factors are also satisfied. Ward, 580 N.W.2d at 71-72. And although a magistrate may rely on police corroboration of minor details, the affidavit here indicates that the only information verified by the police was Olson's address, which is not enough to establish the informant's reliability. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (holding that police corroboration of an address and ownership of a car is not sufficient to support a warrant based on information from a confidential informant).
The affidavit does not indicate whether either CI-1 or CI-2 was a first-time citizen informant, whether either had provided reliable information in the past, or whether either approached the police voluntarily. But the reliability of an informant is just one of the factors to consider in a totality-of-the-circumstances test, and the "reviewing court is not to review each component of the affidavit in isolation but is to view them together." Ward, 580 N.W.2d at 71 (quoting State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990)). Here, the affidavit consists of information provided entirely by the informants. Because the affidavit does not include sufficient information establishing the reliability of either informant, we conclude that the issuing magistrate did not have a substantial basis on which to conclude that probable cause existed and that the district court did not clearly err by suppressing the seized evidence and dismissing the charges against Olson.