Opinion
No. C7-00-1067.
Filed January 9, 2001.
Appeal from the District Court, Chisago County, File No. K699358.
Mike Hatch, Attorney General, and Thomas R. Ragatz, Assistant Attorney General, and Alfred S. Alliegro, Chisago County Attorney, (for respondent)
Lawrence E. Nichols, (for appellant)
Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
On appeal from convictions of two fifth-degree controlled substance crimes, possession and sale, appellant argues that the search warrant application did not establish probable cause to search because it did not set forth the track record of the confidential informant who made the controlled buy, nor the dates or nature of the informant's prior purchases from appellant. Appellant also argues that the evidence was insufficient to prove that he constructively possessed marijuana found in a spare room inside of a trailer that he shared with several others. We affirm.
FACTS
On March 12, 1999, Chisago County Deputy Sheriff Kris Scott applied for a search warrant for a specific trailer in Shafer, Minnesota. After detailing Scott's training and experience regarding controlled substances, the search warrant application stated, in pertinent part:
A police controlled buy was made at [the trailer] from [appellant] Perrin Patrick Peloquin, within the last 48 hours. That buy was made with pre-recorded monies from the Chisago County Confidential Buy Fund. The money was given to a Confidential Informant (CI). CI * * * was searched for controlled substances and money prior to the controlled buy with negative results. CI * * * was under constant police surveillance until arrival at the residence. CI * * * was seen walking into the residence, and a short time later was observed walking out of the same residence. CI * * * was then followed by police personnel to a pre-determined location where a felony amount of a controlled substance was turned over to [Scott]. The substance tested positive for the presence of a controlled substance by the use of a field testing procedure.
Several controlled substance purchases from Peloquin have been made by CI 99-11603 at the above-mentioned address.
The warrant application was signed that day, and, at 8:45 a.m. on March 14, 1999 — less than 48 hours later — the warrant was executed. Upon execution of the warrant, officers found various drug paraphernalia, 1,060 grams of marijuana (some of which was partially packaged for resale), $1,300 in cash, a scale of the type commonly used to apportion marijuana for sale, and evidence tending to connect Peloquin with the residence that was searched and the very room in which the marijuana was found. The scale and the cash were found in Peloquin's bedroom. The marijuana was found in a tin inside of a duffel bag inside the spare bedroom. The spare bedroom also contained clothing, a dresser, storage boxes, and three letters addressed to Peloquin. Drug paraphernalia was found throughout the residence.
Following a bench trial, Peloquin was convicted of controlled substance crime in the fifth degree, sale of marijuana, and controlled substance crime in the fifth degree, possession of marijuana. This appeal followed.
DECISION I.
Peloquin first argues that the warrant application contained insufficient information to support a finding of probable cause. Our review of the district court's finding of probable cause is not de novo. Rather, we afford the district court's finding "great deference." State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999) (citing State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). We limit our review 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) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)).
Peloquin first challenges the affidavit as conclusory. A finding of probable cause may not be made on conclusory statements contained in the supporting affidavit. State v. Eggler, 372 N.W.2d 12, 15 (Minn.App. 1985), review denied (Minn. Sept. 19, 1985). But the distinction between conclusory statements and those that may support a finding of probable cause is whether the statements contain facts or unsupported conclusions. See id. (contrasting conclusory statements with those supported by "sufficient facts"). Here, the affidavit contained very specific evidence tending to indicate that officers might find controlled substances if they were to conduct a search. Specifically, the affidavit detailed the controlled-substance buy procedures as well as efforts by police to minimize uncertainty as to whether the informant acquired the drugs at the residence in question.
Peloquin claims the affidavit was vague about what was purchased by the informant. But the affidavit specifically identifies the item as a controlled substance and explains that a field test confirmed that fact. Peloquin also claims the police affidavit did not specify from whom the purchase was made within the residence searched. But the affidavit specifically states, "[a] police controlled buy was made at [the residence] from Perrin Patrick Peloquin." Peloquin next challenges the informants reliability. Although an issuing judge must consider the veracity and basis of knowledge of informants who supply hearsay information contained in the warrant application, Souto, 578 N.W.2d at 750, very little of the information contained in this affidavit was hearsay. The officer's written observations in affidavit form comprised the bulk of the information.
The only statements that involve the reliability of the informant were: (1) the informant's statement that the controlled buy was made from Peloquin personally, and (2) the informant's statement that he had purchased controlled substances from Peloquin on several occasions.
Peloquin notes that the informant was not a citizen informer of presumed reliability and there was no showing of a "track record" of reliability for the district court to assess. But the informant was not anonymous, and the fact that the informant's identity was known to police enhances the informant's reliability. See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1972) ("One who voluntarily comes forward and identifies herself is more likely to be telling the truth because she presumably knows that the police could arrest her for making a false report."). This is not a situation where an anonymous informant reports to police that controlled substances were purchased at a particular location. The purchase itself was well-documented without any reliance on the veracity of the informant. Here, the informant's statement only serves to identify the specific seller within the home. The fact that the police regularly tracked the informant is enough to substantiate the informant's statement as to the identity of the specific seller.
Furthermore, both the informant's statements regarding the specific identity of the controlled-buy seller, and informant's statements regarding previous controlled-substance transactions with Peloquin are unnecessary to this determination of probable cause. Even without knowing the identity of the specific seller, the police had probable cause to search the residence. See State v. Valento, 405 N.W.2d 914, 917-18 (Minn.App. 1987) (probable cause existed where unwitting participant went directly into defendant's residence after being paid by confidential informant and gave confidential informant cocaine immediately after departing residence and police officers monitored the entire chain of transactions, but did not know who sold the cocaine to the unwitting participant). Based purely on the controlled buy, probable cause was well-established.
II.
Peloquin next argues that the evidence is insufficient to support his conviction for possession of marijuana. In considering a claim of insufficient evidence, our review is limited to analyzing the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); see also State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986) (trial court's findings will be given the same weight as a jury verdict where a jury trial has been waived). We assume the district court believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The district court's finding of guilt will not be disturbed if that court, "acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt," could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted).
Peloquin correctly points out that his conviction was based entirely on circumstantial evidence and notes that such a conviction "merits stricter scrutiny than convictions based in part on direct evidence." State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted). Indeed, in such cases the circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. Id. As long as the circumstantial evidence satisfies this test, it is entitled to as much weight as any other kind of evidence. State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).
Where the state cannot prove actual possession, possession of a controlled substance may be established by presenting circumstantial evidence that creates a strong inference "that the defendant at one time physically possessed the substance and did not abandon [a] possessory interest in the substance, but rather continued to exercise dominion and control over it until the time of the arrest." State v. Florine, 303 Minn. 103,104-05, 226 N.W.2d 609, 610 (Minn. 1975). When, as here, the controlled substance was not in a place under defendant's exclusive control to which other people did not normally have access, constructive possession requires a showing that, "there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it." Id. at 105, 226 N.W.2d at 611.
Peloquin argues that the evidence cannot support the district court's finding of "constructive possession" because the circumstantial evidence also supports the theory that Peloquin's roommates possessed the marijuana. But the fact that others may also have been engaged in the possession and sale of the marijuana is of no importance where the evidence here connects Peloquin to the marijuana. See State v. Denison, 607 N.W.2d 796, 800 (Minn.App. 2000), review denied (Minn. June 13, 2000) (finding evidence sufficient to prove constructive possession where marijuana was found in close proximity to defendant's personal effects and in areas of the residence over which she likely exercised at least joint dominion and control with her husband). The circumstantial evidence here wholly supports the conclusion that Peloquin possessed the marijuana. Letters addressed to Peloquin were found near the marijuana, some of the marijuana was packaged for re-sale and the only scale found in the trailer was found in Peloquin's room, along with a substantial amount of cash. Although each piece of evidence, standing alone, might not support this conclusion, the totality of the circumstances is considered in proving constructive possession. Id. Taken together, the evidence here forms a complete chain leading directly to Peloquin's involvement in the possession and sale of marijuana.
Peloquin asserts that this evidence is also consistent with possession by one or more of the other persons present who recently purchased it from Peloquin, and therefore he no longer exercised dominion over it. But the mere possibility of innocence does not require reversal of a verdict "so long as the evidence taken as a whole makes such theories seem unreasonable." State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Here, there was no indication that Peloquin's roommates exercised dominion over the marijuana, the quantity was not consistent with a quantity for consumption, some of the marijuana was packaged for re-sale, and Peloquin was in sole possession of the scale that could facilitate such packaging. That evidence forecloses beyond a reasonable doubt any reasonable inference other than that Peloquin, at the time of the arrest, was in possession of the illicit marijuana.
Affirmed. _________________________ Judge Roland C. Amundson