Opinion
No. C4-96-1957.
Filed April 15, 1997.
Appeal from the District Court, Pennington County, File No. K3-95-859.
Hubert H. Humphrey III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, David M. Olin, Pennington County Attorney, Gayle Ann Borchert, Assistant County Attorney, (for Respondent)
John A. Winters, (for Appellant)
Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Amundson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Debra Ann Souto challenges her conviction for a fifth degree controlled substance offense, arguing that: (1) the search warrant lacked probable cause; (2) she was entrapped; and (3) the state conduct was so outrageous as to bar her conviction. We affirm.
FACTS
On September 7, 1994, Special Agent Woolever completed an application for a warrant to search 10 residences, including the residence of appellant Debra Ann Souto. Much of the information supporting the warrant, particularly with regard to Souto, was gathered from an informant referred to as CRI#4. Special Agent Woolever had received the information from CRI#4 in May 1994.
The search warrant was issued. As a result of its execution, a vial containing methamphetamine was found in Souto's purse. She was charged with a fifth degree controlled substance offense. She moved to suppress the vial, arguing that the search warrant lacked probable cause. That motion was denied. She offered an entrapment defense, based on alleged inducement by CRI#4, and argued that the government's conduct was so outrageous as to bar her conviction. She was found guilty. This appeal followed.
DECISION I. Probable Cause
Souto challenges the admission of evidence seized in the execution of the search warrant, arguing that the search warrant lacked the requisite probable cause. She argues that: (1) the warrant application was based on stale information; (2) there was an inadequate nexus between the criminal activity and Souto's residence; and (3) the warrant failed to establish the reliability of the informant. A search warrant cannot be issued without probable cause, which is supported by affidavit. Minn. Stat. § 626.08 (1994). In reviewing the probable cause for a search warrant, this court must give great deference to the issuing court's determination. State v. Anderson , 439 N.W.2d 422, 425 (Minn.App. 1989), review denied (Minn. June 21, 1989). The United States Supreme Court has noted that a more stringent review would be "inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Illinois v. Gates , 462 U.S. 213, 236, 103 S.Ct. 2317, 2331 (1983).
First, Souto asserts that the information on which the search warrant relied was stale and therefore the warrant lacked probable cause. Souto submits, specifically, that there was no indication of ongoing criminal activity that would support the warrant.
Probable cause to search exists if "certain identifiable objects are probably connected with certain criminal activity and may probably be found at the present time." State v. Jannetta , 355 N.W.2d 189, 193 (Minn.App. 1984), review denied (Minn. 1985). Stale information is not permitted to establish probable cause, and
"proof must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time."
Id. (quoting Sgro v. United States , 287 U.S. 206, 210, 53 S.Ct. 138, 140 (1932)). Reviewing courts will not set "arbitrary time limits" or "substitute a rigid formula for the judge's informed decision." Id. Instead, the court should review each case with "flexibility and common sense." Id .
One of the factors this court may use to determine the staleness of information used to obtain a search warrant is whether there is any indication of ongoing criminal activity. Id. at 193-94. Souto asserts that the application lacks any indication of ongoing criminal activity because Special Agent Woolever waited for over four months before obtaining a search warrant to seize an ounce of methamphetamine that was allegedly purchased seven months earlier. Another factor that this court may use to determine staleness is the ease with which the property sought can be disposed of or transferred. Id. Here, Souto asserts that narcotics could be very easily disposed of or transferred to another person.
However, Special Agent Woolever based his application for the warrant on more than Souto's alleged purchase of methamphetamine in February 1994. His affidavit indicates other bases for the search warrant: (1) Souto used methamphetamine at numerous drug parties held at an informant's residence between September 1993 and February 1994; (2) a November 1993 package containing narcotics that was addressed to Souto; (3) knowledge gathered from "Federal, State and local law enforcement officers and a number of Confidential Reliable Informants" that Souto possessed and/or distributed narcotics; and (4) numerous telephone calls between the Heinrich/Toppen household, which was known to be a drug distributing household, and Souto.
Souto argues that the application failed to show a nexus between the criminal activity and her residence. The supreme court has stated that
[t]here must be a sufficient nexus between the criminal activity, the place of the activity, and the persons in the place to show probable cause.
State v. Hinkel , 365 N.W.2d 774, 776 (Minn. 1985). Souto cites a recent case in which this court affirmed the district court's suppression of evidence because the search warrant lacked probable cause. See State v. Kahn , 555 N.W.2d 15 (Minn.App. 1996). In Kahn , the warrant to search the defendant's residence was based on an affidavit that the defendant had been arrested for buying an ounce of cocaine 75 miles away, which the affiant stated "through training and experience * * * is considered more [than] that for personal use," and indicated likely involvement in the sale of the drug. Id. at 18. This court stated that mere possession of an ounce of cocaine did not constitute probable cause that someone is a dealer and that the affidavit failed to provide "sufficient facts to infer a reasonable nexus linking the drug possession in Minneapolis to the home in Elgin." Id.
Souto posits that the warrant application does not indicate that she purchased the methamphetamine at her residence or that she was involved in the sale of narcotics; further, the drug parties in the application did not take place at her residence.
Although the application may lack a strong link between the criminal activity and Souto's residence, the application reflects a more important link: that between the criminal activity and Souto herself. This case can be distinguished from Kahn . In Kahn , the only evidence to support the defendant's status as a drug dealer was his purchase of a relatively large amount of narcotics, whereas here, the affiant provided more reasons to support the probable cause that Souto was in possession of or distributing narcotics. In addition, given the deference we give the district court in deciding admission of evidence, it is important to note that in Kahn , this court reviewed a district court's suppression of evidence, whereas in this case, the district court's admission of evidence is under review.
Souto's third argument challenging the probable cause basis for the search warrant is that the warrant application failed to establish the reliability of the informant. The application relied heavily on information received from an informant referred to as Confidential Reliable Informant #4 (CRI#4). Souto asserts that the affiant's statement that CRI#4 had "proven reliable and credible" through corroboration with a North Dakota special agent was not enough to establish reliability.
A member of this court has voiced concerns about the language used by police officers to establish the reliability of their informants. See State v. Wiley , 348 N.W.2d 86, 93 (Minn.App. 1984) (Lansing, dissenting), aff'd , 366 N.W.2d 265 (Minn. 1985). In reviewing the same case, the supreme court noted that it preferred "more specific language than 'used successfully' to establish an informant's credibility in an affidavit for a search warrant," adding that facts about the past accuracy rate of the informant and the results of prior searches based on the informant's tips, such as whether the information provided by the informant led to arrests or convictions, should be provided to the issuing judge. Wiley , 366 N.W.2d at 269 n. 1.
The Wiley footnote represents a preference, not a rule of law. Further, Special Agent Woolever's affidavit offered collaboration of CRI#4's reliability through confirmation of CRI#4's information regarding a package. The affidavit stated that CRI#4 had said that a woman used to send Heinrich and Heinrich's friends narcotics from the Sacramento area and that an intercepted package containing narcotics was sent to Souto from Carmichael, California, which is near Sacramento.
We conclude that the search warrant was supported by probable cause.
II. Entrapment
Souto also challenges her conviction by arguing that she was entrapped by the CRI#4. When an entrapment defense is presented to the court, rather than to a jury, it will be decided as a matter of law. State v. Grilli , 304 Minn. 80, 95, 230 N.W.2d 445, 455 (1975).
Souto asserts that CRI#4 is Jeff VanCamp, the boyfriend of Souto's friend, Matson. Souto claims that in July or August of 1994, while at Matson's house, Jeff VanCamp told her that he was trying to quit using methamphetamine and asked Souto to take a vial containing the narcotic. She says that she put the vial in her coin purse and forgot about it. She argues that because of the overlapping friendships of Matson and VanCamp, she was pressured into the commission of a crime by CRI#4, whom she claims was a government agent. The state counters that CRI#4's informant status ended after May 1994, when he provided the state with the information that led to the search warrant.
While there is no clear standard for what constitutes a government agent for entrapment purposes, the standard has been better established in the sixth amendment context. There, the main factor in considering whether an informant is a government agent is whether the informant acted with direction, assistance, or encouragement from law enforcement. State v. Hawkins , 511 N.W.2d 9, 12 (Minn. 1994). In this case, there is no evidence that CRI#4 asked Souto to take the vial while working with the direction, assistance, or encouragement of law enforcement. Further, payment is frequently used as a factor to determine if the informant is a government agent. See id. The record shows that CRI#4 was not paid.
Souto had the burden of raising the defense of entrapment by showing by a fair preponderance of the evidence that an agent of the government initiated the idea of criminal conduct. See State v. Ford , 276 N.W.2d 178, 182 (Minn. 1979). Souto did not satisfy this burden.
III. Due Process
Finally, Souto argues that the government's conduct was so outrageous as to require dismissal on due process grounds. She argues that CRI#4 was entangled with the government and that his conduct was outrageous.
The United States Supreme Court has stated that the government involvement in a crime must reach a level of outrageousness before conviction for that crime will be barred. Hampton v. United States , 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7 (1976). Judge Powell noted that police overinvolvement would be especially difficult to show in narcotics and other contraband prosecutions. State v. James , 484 N.W.2d 799, 801 (Minn.App. 1992) (citing Hampton , 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7), review denied (Minn. June 30, 1992).
Souto's claim first requires this court to agree that CRI#4 was acting on behalf of the government. There is inadequate evidence to support this assertion.