Opinion
No. A06-1597.
Filed August 21, 2007.
Appeal from the District Court Mille Lacs County, File No. 48-CR-05-1017.
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, and Janice S. Kolb, Mille Lacs County Attorney, Christopher Zipko, Assistant County Attorney, (for respondent).
Stefan A. Tolin, (for appellant)
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant challenges his conviction for second-degree controlled substance crime, arguing that there was no probable cause to issue a search warrant because the search-warrant application contained an intentional misrepresentation that an informant was a first-time citizen informant and the information in the application was stale. Appellant also argues that he was entitled to disclosure of the informant's identity. We affirm.
DECISION
Appellant John Benjamin Amble, III argues that the district court erred by not suppressing the evidence seized because the search warrant lacked probable cause. "When reviewing pretrial orders on motions to suppress evidence, [this court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
This court reviews the district court's determination of probable cause to issue a search warrant to decide "whether the issuing judge had a substantial basis for concluding that probable cause existed." State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). A substantial basis exists when, given the totality of the circumstances, the warrant application establishes a "fair probability that contraband or evidence of a crime will be found in a particular place." 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)). In examining the sufficiency of an affidavit to establish probable cause under the totality-of-the-circumstances test, a court is to "make a practical, common-sense decision," reviewing the components of the affidavit together because "[e]ven if each component is judged unsubstantial, the components viewed together may reveal . . . an internal coherence that gives weight to the whole." State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotations omitted). This court accords significant deference to a district court's determination of probable cause to issue a search warrant and does not review that determination de novo. Rochefort, 631 N.W.2d at 804.
Here, an investigator was approached by an individual who provided his/her real name and date of birth. The individual had never done informant work and was not given consideration for the information he/she provided. The informant reported that within the past 30 days, he/she observed large amounts of marijuana, pills, and cash in a small safe hidden under a couch in appellant's living room. The informant also told the investigator that appellant is involved in the sale and distribution of marijuana and prescription pills. Additionally, the informant stated that appellant drives a red Mercedes Benz, goes to the cities once a week to pick up marijuana, conceals the marijuana in a blue bag with white writing, and sells a quarter ounce of marijuana for $40.
The investigator verified appellant's address and vehicle. The investigator also observed appellant driving his car southbound toward the cities. Additionally, the investigator learned that approximately 18 months earlier, officers searched appellant's residence and vehicle and found, among other things, a loaded shotgun, marijuana pipes, a scale, and plastic baggies containing marijuana. The investigator ran a criminal-history check and learned that appellant had a felony drug conviction.
The investigator executed the search warrant after observing appellant in a parking lot moving items from inside his car to the trunk. While searching appellant, the investigator found white tablets that appellant stated were Percocet. The investigator also found a blue bag that held, among other things, one-half ounce of marijuana and approximately 45 white tablets. The investigator recovered 125 Percocet tablets.
Appellant argues that the district court erred in determining that the investigator did not make an intentional or reckless material misrepresentation in the search-warrant application by characterizing the informant as a first-time citizen informant when this individual had a criminal history. Although we normally presume the validity of an affidavit supporting an otherwise valid search warrant, "this presumption is overcome when the affidavit is shown to be the product of deliberate falsehood or reckless disregard for the truth." State v. McGrath, 706 N.W.2d 532, 540 (Minn.App. 2005) (citing Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978)), review denied (Minn. Feb. 22, 2006). The defendant has the burden of showing by a preponderance of the evidence that the affiant included a false statement in the affidavit knowingly or with reckless disregard for the truth. Id. "Innocent or negligent misrepresentations will not invalidate a search warrant." Id. We review a challenged affidavit's components as a coherent whole rather than in isolation, and we will not engage in a hypertechnical examination of the affidavit. State v. Kahn, 555 N.W.2d 15, 18 (Minn.App. 1996).
"[S]tatements from citizen witnesses, as opposed to criminal informants, may be presumed to be credible." State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999). If the affidavit specifically states that the confidential informant is a first-time citizen informant who is not involved in criminal activity, the informant previously has given correct information to the police, or the police can sufficiently corroborate the information, the issuing judge may presume the informant is reliable. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998).
The search-warrant application here provided that the informant was fully identified by name and date of birth, that this was an "arrested individual," and a "first time citizen informant" with first-hand knowledge regarding appellant. The investigator also indicated that the informant was not receiving any consideration and that he knew that the informant had been charged with controlled-substances crimes. During the omnibus hearing, the investigator testified that he described the informant as a first-time citizen informant because it was the first time this person provided information for no consideration and that he had not been trained that an individual with a controlled-substance arrest or conviction cannot be characterized as a first-time citizen informant. Thus, although the investigator characterized the informant as a first-time citizen informant, the fact that this individual was "an arrested individual" who had been charged in the past with controlled-substance crimes, was included in the search-warrant application. Further, the investigator corroborated the information by verifying appellant's address and vehicle description, observing appellant driving toward the cities, and observing individuals enter appellant's home and stay only for a short time. The district court did not err in finding that the search-warrant application did not contain a material misrepresentation.
Appellant also argues that the informant was not reliable. When determining whether a confidential informant's tip provided probable cause to arrest or search, we consider the totality of the circumstances, including the informant's basis of knowledge, veracity, and reliability. Ward, 580 N.W.2d at 71. "[A] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233, 103 S. Ct. at 2329. The six factors for determining the reliability of informants are: (1) a first-time citizen informant is presumed reliable; (2) an informant who has given reliable information in the past is likely reliable; (3) reliability can be established by police corroboration; (4) an informant who voluntarily comes forward is presumed more reliable; (5) a "controlled purchase" is a term of art that indicates reliability; and (6) an informant who makes a statement against his or her interests is minimally more reliable. State v. Ross, 676 N.W.2d 301, 304 (Minn.App. 2004).
Here, the investigator corroborated information from the informant. Additionally, the informant voluntarily came forward and was not given any consideration. Finally, the investigator knew the informant's identity and the informant could have faced consequences for providing false information. The district court did not err in determining that the informant was reliable.
Appellant also argues that the district court should have suppressed the evidence because the information in the search-warrant application was stale. In determining whether the information supporting a search warrant is stale, this court examines whether there is "any indication of ongoing criminal activity, whether the articles sought are innocuous or incriminating, whether the property sought is easily disposable or transferable, and whether the items sought are of enduring utility." State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).
The district court found that the information in the warrant was not stale because the facts indicated that appellant was involved in ongoing criminal activity. The informant stated that appellant was involved in the sale and distribution of controlled substances; within the past 30 days he/she observed large amounts of marijuana, pills, and cash in a safe in appellant's living room; and appellant travels to the cities weekly to pick up marijuana. The investigator testified that he stated in the search-warrant application that he learned this information "within the previous 20 days" because the informant did not want his/her identity known for fear of retaliation. Additionally, the investigator had information that marijuana was found in appellant's possession approximately 18 months earlier, and appellant has prior drug convictions. The district court did not err in determining that the information in the search-warrant application was not stale.
Finally, appellant argues that the district court should have ordered the state to disclose the informant's identity. The district court has discretion to order the disclosure of an informant's identity and this court will not reverse that decision absent an abuse of discretion. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978). Appellant's request for disclosure was based solely on his suspicion that the investigator's statements in the affidavit supporting the search-warrant application are false. Because the district court did not err in determining that the investigator did not make a material misrepresentation in the search-warrant application and appellant does not provide any other reason why the informant's identity should be disclosed, the district court did not abuse its discretion in ruling that the state was not required to disclose the informant's identity.