Opinion
No. A05-823.
Filed April 11, 2006.
Appeal from the District Court, Mille Lacs County, File Nos. K4-04-757/K6-04-1392/K6-04-1313/K9-04-639.
Mike Hatch, Attorney General, Thomas R. Ragatz, Scott F. Cloutier, Assistant Attorneys General, and Janice S. Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, (for respondent)
David W. Buchin, Buchin Law Office, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
During a seven-month period between May and December 2004, four separate warrants were issued to search the residence of appellant Julie Katherine Thompson, based on information that she was involved in the possession and/or sale of controlled substances, primarily methamphetamine (meth). During each of the searches, drugs and other contraband were found. Following each search, appellant was arrested and charged with various crimes, including third-, fourth- and fifth-degree controlled substance offenses. Appellant was released on bail following each of the first three arrests, but was unable to post bail following her fourth arrest, and remained in custody.
Appellant moved to suppress the evidence seized on each of the search warrants. At a contested omnibus hearing, the district court denied appellant's motions to suppress.
After submitting the matter to the district court for trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), appellant was found guilty. On appeal from her convictions, she argues that the search warrants were issued without probable cause. Because the issuing court had a substantial basis for concluding that probable cause existed, and because we afford great deference to the issuing court's probable cause determinations, we affirm the district court's denial of appellant's suppression motions.
DECISION
A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate. U.S. Const. Amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2004); see also State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). We do not review the issuing court's probable case determination de novo, but afford "great deference" to its decision. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). This court's review is limited to ensuring that "the issuing judge had a `substantial basis' for concluding that probable cause existed." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
To determine whether probable cause exists,
[t]he task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, . . . including the `veracity' and `basis of knowledge' of persons supplying hearsay information, 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 Gates, 462 U.S. at 238, 103 S. Ct. at 2332). The court determines probable cause to issue a search warrant under a "totality of the circumstances" test. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. Under this test, "courts must be careful not to review each component of the affidavit in isolation." Wiley, 366 N.W.2d at 268. Rather, it is sufficient if the components, when viewed together, "reveal . . . an internal coherence that gives weight to the whole." Id. (quotation omitted).
1. May 24, 2004 Warrant
This warrant was issued based on information from multiple sources, including two confidential reliable informants (CRI) who were known to the investigating officer and had provided reliable information to the officer in the past. In March 2004, one informant told the officer that he or she had personally seen meth and paraphernalia in appellant's house; it was unclear, however, exactly when these observations were made. On May 24, the other informant told one of the officer's colleagues that, within the past few days, appellant had allowed a partial meth cook to take place in her detached garage and that appellant would be in possession of approximately one ounce of meth on May 24; it was unclear where the informant obtained this information.
In addition to the information provided by these two informants, the investigating officer further stated that (1) he had learned of extensive and ongoing sales of meth from appellant's home taking place at odd hours during late night and early morning hours; (2) there were periods of heavy traffic that stayed for short periods of time at appellant's home; (3) police had responded to several calls for assistance at appellant's residence; and (4) during these calls police had seen drug paraphernalia and observed appellant under the influence of controlled substances. The officer ran a criminal history on appellant and found that she had an "extensive criminal history throughout 5 states and including 16 aliases," with most of the entries involving "prostitution type arrests."
While none of these facts alone might have supported the issuance of a warrant, when considered together, the components reveal "an internal coherence" that gives weight to the whole. Wiley, 366 N.W.2d at 268. In particular, the information is timely and not stale because it supports an inference of ongoing drug activity at the house. See State v. Dyer, 438 N.W.2d 716, 719 (Minn.App. 1989) (stating that "passage of time between transactions on which a warrant is based and the ensuing search is less significant when the facts recited indicate activity of a continuous nature") (quotation omitted)), review denied (Minn. June 9, 1989). The information was provided by at least two reliable informants. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998) (stating that informant who has previously given police correct information is presumed reliable as long as affidavit "explicitly state[s] this to be the case"). The information provided a nexus between suspected illegal activity and appellant's residence. See Souto, 578 N.W.2d at 747-48. Finally, the deputy added an element of corroboration with information gained from other unnamed sources. See Ward, 580 N.W.2d at 71 (finding that reliability may be established by corroboration of "even minor details" that lend credence to supplied information).
Appellant also challenges the basis for the issuance of a nighttime warrant. See Minn. Stat. § 624.14 (2004) (authorizing issuance of warrant outside hours of 7 a.m. and 8 p.m. only when necessary to "prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public"). The investigating officer provided the following statements to support issuance of a nighttime warrant:
Your Affiant received information at 1900 hours, which led to the application of this search warrant. Due to the nature of sales of controlled substances, it is common for a large amount of controlled substance to be sold in a very short amount of time. Information was received from a CRI that Julie Thompson would be in possession of a large amount of methamphetamine on today's date, 5-24-04. Your Affiant believes the delay of the execution of this warrant would result in the loss of a substantial amount of methamphetamine that would be evidence and allow it to possibly be re-sold, allowing it to eventually reach other persons.
The information was received at 7:00 p.m., and the warrant was executed around 10:00 p.m. Contrary to appellant's arguments, the warrant application does not contain mere boilerplate language and includes specific reasons to believe that issuance of the warrant outside the normal hours was necessary in this case. See State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978) (stating statute authorizing nighttime warrants requires "some showing to the magistrate that the warrant can only be executed successfully in the nighttime").
2. June 21, 2004 Warrant
This application recites all of the information included in the affidavit supporting the first warrant and the following new information:
Your Affiant received information from Princeton Police Officer Joseph Backlund on 6-20-04 via cellular phone call that Julie Thompson was involved in a minor property damage accident in the city of Princeton at approximately 1450 hrs. An individual was with Julie Thompson in her vehicle at the time of the accident and was identified to [Officer Backlund] as Christopher Craig Moos dob: 6-4-83. Christopher Moos has not previously been a police informant to the best of your Affiant's knowledge. It was learned that Christopher Moos had an active arrest warrants for him out of Anoka County MN and Christopher Moos was arrested on those warrants. Those warrants were for 5th Degree assault and Theft. During transport to jail, Christopher Moos told Officer Backlund words to the effect of "there was enough dope in her house to make front page news and make you all hero[es.]" Christopher Moose also told Officer Backlund he personally saw an ounce of meth in her closet by a heater on Saturday 6-19-04.
Again, while these allegations alone might not support the issuance of a warrant, when considered together with the information and circumstances surrounding the issuance and execution of the first warrant, probable cause existed to support this second warrant.
In particular, Moos stated that he had personally observed meth in a specific place in appellant's home only two days earlier. See Ward, 580 N.W.2d at 71 (stating that "[r]ecent personal observation of incriminating conduct [is] the preferred basis for an informant's knowledge") (quotation omitted). While Moos was under arrest, he is not a "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." Id. at 71-72. Rather, his statements appear to have been voluntarily given and are of "some minimal relevance." Id. at 71. Finally, Moos made his statements only one month after law enforcement executed the first warrant on appellant's residence, during which meth and other contraband had been seized. Under these circumstances, we conclude that the issuing court did not err in finding that probable cause existed to issue this second warrant.
3. November 11, 2004 Warrant
The application for this warrant recites all of the information from the first and second warrants. It also contains new information provided by a CRI who made at least two "controlled buys" of meth from appellant at her residence within the past 45 days and who informed the investigating officer of his or her belief that meth was present in the residence. The officer stated that the CRI "was going to advise your Affiant when he/she believed there would be more controlled substances in the home of Julie Thompson." This warrant was executed two days later, on November 13, at approximately 2:22 p.m.
Appellant argues that none of the information provided a sufficient link to conclude that there would be drugs in the home on November 11, which is five months after the execution of the second warrant. The information regarding the controlled buys, which were completed within 45 days of the warrant request, supports an inference that the drug activity has continued to take place at the house and makes the information timely and not stale. See Dyer, 438 N.W.2d at 719. Further, the two-day delay in executing the warrant was permissible because probable cause to search still existed at the time the warrant was executed. State v. Yaritz, 287 N.W.2d 13, 16 (Minn. 1979).
4. December 3, 2004 Warrant
The application for the fourth warrant recites the information from the first three warrants and adds two additional pieces of information. First, a "cooperating individual" informed the affiant that he or she was present at appellant's residence within the past 10 days, when controlled substances were purchased, and was present at the residence within the past 20 days when a controlled substance believed to be meth was purchased. On December 3, 2004, a second informant, whom the affiant described as a CRI, told the affiant that there would be controlled substances at appellant's residence on that same day.
Again, while this new information might fail to support the issuance of a warrant on its own, when we consider that drugs had been found at appellant's residence only a few weeks earlier during the execution of the third warrant, the reliability assigned to informants described as CRI's, and the deference we give to an issuing court's probable cause determination, probable cause existed to support this fourth warrant. And, with respect to the issuance of a nighttime warrant, while the information contained in the application is either boilerplate or does not pertain to the facts surrounding this fourth warrant, the affidavit was submitted to the issuing judge at 7:10 p.m., and the warrant was issued and served soon thereafter, at 8:32 p.m. A court may consider the "facts stated in the affidavits," when issuing a nighttime warrant. Minn. Stat. § 626.14; see State v. Wasson, 615 N.W.2d 316, 319-20 (Minn. 2000). We therefore conclude that the warrant application provides a reasonable suspicion to believe that meth and other evidence likely would be found in the house, and that a nighttime warrant was appropriate.