Opinion
No. A05-1965.
Filed September 5, 2006.
Appeal from the District Court, Morrison County, File No. K3-04-497.
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, and Conrad I. Freeberg, Morrison County Attorney, Todd Kosovich, Assistant County Attorney, Morrison County Government Center, (for respondent)
John G. Westrick, Kirk M. Anderson, Westrick McDowall-Nix, Pllp, (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant Kevin John Prozinski challenges his conviction of first-degree controlled substance crime pursuant to Minn. Stat. § 152.021, subd. 2(1) (2002). Appellant argues that (1) the warrant to search his residence was not supported by probable cause; and (2) his constitutional rights were violated when he was improperly held pending a bail study. We affirm.
DECISION I.
The United States and Minnesota Constitutions provide that a search warrant may not issue unless it is supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In determining whether a warrant is supported by probable cause, this court does not review the district court's decision de novo. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). Rather, we give great deference to the issuing court's probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). 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, 238-39, 103 S. Ct. 2317, 2332 (1983)). A "substantial basis" means that there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S. Ct. at 2332.
The court determines probable cause based on the totality of the circumstances. Id.
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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.
Id. "[A] collection of pieces of information that would not be substantial alone can combine to create sufficient probable cause." State v. Jones, 678 N.W.2d 1, 11 (Minn. 2004).
When examining the totality of the circumstances, the court only looks at the information presented in the affidavit supporting the application for the warrant. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). And on review, appellate courts resolve marginal cases in favor of the issuance of the warrant. McCloskey, 453 N.W.2d at 704.
Here, appellant argues that the search warrant was not supported by probable cause because the information contained in the application (1) was vague and uncertain; (2) did not create a sufficient nexus between the alleged criminal activity and the place to be searched; and (3) was stale. We disagree.
1. Vague and uncertain
First, appellant argues that the search warrant was not supported by probable cause because the information in the application was vague and uncertain. Appellant contends the application was inadequate because it contained hearsay and statements from unreliable sources. We disagree.
Here, the warrant application contained information that an inmate at the county jail met in person with a deputy from the Morrison County Sheriff's Department and made statements against his own interest. The inmate told the deputy that before February 2003, he drove Lisa Zablocki to appellant's residence to purchase methamphetamine. Zablocki returned from appellant's residence with methamphetamine and indicated that appellant manufactures methamphetamine from his house. After meeting with the inmate, the deputy checked appellant's criminal history and discovered that he had been convicted of drug-related offenses in 1989 and 1991.
In addition, the inmate informed the deputy that he knew Michael Gerling, who also sold controlled substances in the area. The deputy then monitored Gerling's phone calls and recorded a call in which the participants discussed that appellant was "at the lake" where the "stuff" was. Appellant lives near Green Prairie Lake. Gerling also confirmed that "Lisa" was with appellant and was on his "junk." "Junk" is a slang term commonly used to refer to methamphetamine.
Subsequently, the deputy received a report from the chief of the Randall Police Department. The police chief informed the deputy that a local store clerk had seen appellant purchase approximately 40 boxes of Sudafed within two months of April 20, 2004, the date of the warrant application. See Harris, 589 N.W.2d at 789 ("[S]tatements from citizen witnesses, as opposed to criminal informants, may be presumed to be credible."). The store's surveillance video confirmed that appellant had purchased Sudafed from that store. Given the significant evidence corroborating the various statements, we conclude that the information in the warrant application was sufficiently reliable.
2. Nexus
Second, appellant argues that the search warrant was not supported by probable cause because the information in the application did not create a sufficient nexus between the alleged criminal activity and appellant's residence. The Minnesota Supreme Court "has historically required a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence for evidence of drug activity." Souto, 578 N.W.2d at 747-48.
Here, the warrant application contained information that (1) appellant had recently purchased materials used in the manufacturing of methamphetamine; (2) police had recently listened to a phone conversation where the caller indicated that appellant was "at the lake" where the "stuff" was and that a woman was on appellant's "junk"; and (3) appellant had been involved in drug activity in the past, including the manufacturing of methamphetamine at his residence. Thus, we conclude that appellant's recent Sudafed purchases combined with his past alleged drug activity provide a sufficient nexus between appellant's residence and the criminal activity.
3. Stale
Third, appellant argues that the search warrant was not supported by probable cause because the information in the application was stale. But here, the warrant application contained allegations of recent criminal activity. A local convenience store clerk informed police that appellant and his son had recently purchased unusual amounts of Sudafed. And in April 2004, police listened to a phone conversation where the participants discussed appellant and his "junk."
Appellant's past drug-related activity combined with recent allegations of drug-related activity establish a pattern of ongoing criminal activity. "When an activity is of an ongoing, protracted nature, the passage of time is less significant." Id. at 750. Thus, we conclude that the information in the search warrant application was not stale.
On this record, we conclude that the totality of the circumstances supports the issuing judge's determination that probable cause existed to issue the search warrant. Thus, the district court did not err in denying appellant's motion to suppress evidence seized pursuant to the search warrant.
II.
Appellant, without requesting a remedy, argues that his constitutional rights were violated because the district court set his bail and then ordered that he remain in custody pending a bail study. Appellant further alleges that the practice of holding the accused while awaiting a bail study is routine in Morrison County. But the record does not provide sufficient evidence for us to determine whether appellant's rights were violated or whether the alleged bail-study practice is routine in Morrison County. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App. 1995) (stating that the appellant bears the burden of providing an adequate record).
Nevertheless, we note that under Minn. R. Crim. P. 6.02, subd. 3, a bail study may be "made prior to or contemporaneously with the defendant's appearance before the court, judge or judicial officer." (Emphasis added.) Thus, Minn. R. Crim. P. 6.02, subd. 3 does not authorize courts to set bail and then hold the defendant pending a bail study.