Opinion
No. CX-00-1564.
Filed July 17, 2001.
Appeal from the District Court, Mower County, File No. K8-99-1632.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and
Patrick Oman, Mower County Attorney, (for respondent)
Eric J. Moutz, Special Assistant Public Defender, (for appellant)
Considered and decided by Amundson, Presiding Judge, Foley, Judge, and Huspeni, Judge.fn_
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
On appeal from a conviction for a first-degree controlled substance crime, appellant argues that the search warrant application did not provide probable cause because it was based on one-month-old information and statements from an unreliable informant. We affirm.
FACTS
On November 17, 1999, Thomas A. Steihm, a detective with the Austin Police Department, applied for a search warrant for Room #228 at the AmericInn in Austin, Minnesota. The search warrant application alleged that Steihm had information supporting probable cause to search room #228.
According to Steihm's affidavit, Michael Barlow (Barlow), who had previously been arrested for drug and firearm possession in Illinois, had rented Room #121 at the AmericInn on October 8, 9, and 10, 1999. During his stay, Barlow had many visitors to his room. These visitors came and went at all hours, beginning at approximately 9:00 p.m., and many only stayed for short periods of time. Barlow also made a number of phone calls, including several calls to Marcus Thurmond, Cindy Stewart, and Charles Barlow (no known relation to Barlow), whom Steihm knew were involved in the use and sale of narcotics, and several calls to 1-800 numbers consistent with cell phones and pagers. At the end of his stay Barlow paid cash for the full bill. Steihm's affidavit stated that Barlow again reserved a room (#228) at the AmericInn for November 17 and 18, 1999.
On October 17, 1999, a confidential informant made a controlled purchase of cocaine from Stewart. Annalisa Wadley, whom Steihm also knew to be involved in the trafficking of controlled substances, was also present during the sale. Wadley told the informant that nine more ounces of cocaine would be available later. The police then contacted Wadley for another controlled buy. She handed off the arrangements for this sale to Charles Barlow. The staff at the AmericInn notified Steihm that Wadley checked into Room 228, the room Barlow had reserved.
The warrant application was signed on November 18 and executed at 1:45 a.m. on November 19, 1999. Upon execution of the warrant, officers found approximately 4.8 ounces of crack cocaine, prompting officers to arrest and charge Barlow with first degree sale or possession with intent to sell, first degree unlawful possession of a controlled substance, a drug tax stamp count, importing controlled substances across Minnesota's borders, and the gross misdemeanor charge of possessing a pistol without a permit.
At an omnibus hearing, the validity of the search warrant was challenged and upheld by the district court; the evidence seized from Barlow's room was admitted. After a trial, the district court found Barlow guilty of the charge of possession of a controlled substance in violation of Minn. Stat. § 152.021, subd. 2(1) (1998). This appeal followed.
DECISION
Barlow argues that the facts alleged in Steihm's affidavit were insufficient to establish probable cause to search the hotel room. On appeal, this court determines whether the district court had a substantial basis for concluding that probable cause existed. State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999). We make this determination within the framework of the "totality of circumstances" test. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Under this test, the reviewing court must view all of the components of the affidavit together. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). Even if each component of the affidavit is insignificant by itself, when viewed together the components may reveal an internal coherence, giving weight to the whole. Harris, 589 N.W.2d at 788.
Probable cause to search exists if it is established that "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. Jan. 14, 1985) (citing 1 W.LaFave, Search and Seizure § 3.7, at 680 (1978)). Elements bearing on this probability include information linking the crime to the place to be searched, the freshness of the information, and the reliability of the source of the information. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). When considering the existence of probable cause, the issuing judge applies "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Jannetta, 355 N.W.2d at 193 (quoting Brinegar v. U.S., 338 U.S. 160, 175, 69 S.Ct. 1302, 1310 (1949)).
Barlow, citing Souto, first contends that the information regarding his one-month old conduct during the previous stay at the AmericInn was impermissibly stale. In Souto, the Minnesota Supreme Court found that the information supporting the warrant was stale. Id. at 149-50. There the affidavit stated that a known drug dealer, who lived in California, mailed a package with a controlled substance to the defendant ten months before the warrant was issued. 578 N.W.2d at 746. But events that would be stale standing alone may not be stale when, for example, the application for that warrant articulates proof of ongoing criminal activity, or of surviving evidence of past crime. Souto, 578 N.W.2d at 750. In this case, Barlow's behavior on October 8, 9, and 10, 1999 cannot be viewed in isolation; the ongoing events surrounding his associates and the hotel room demonstrate the ongoing relevance of his activities in October.
When viewed as a whole, the affidavit demonstrated that Barlow was involved in activities indicative of, and consistent with, drug dealing. These activities included (a) short-term visits by various individuals coming and going at all hours to Barlow's room at the AmericInn during his stay in October; (b) Barlow's calls to several known local drug dealers; (c) Barlow's calls to 1-800 numbers consistent with cellular phones and pagers often used by people in the drug business; (d) payment in cash for the stay at the AmericInn; and (e) Barlow's prior arrests for possession of drugs and firearms. Moreover, Wadley, one of the people that Barlow contacted during his visit in October, participated in a controlled buy and indicated to the confidential informant that nine more ounces of cocaine would be available later. Wadley later checked into Room #228 at the AmericInn, which room Barlow had earlier reserved. Given these circumstances, it was reasonable to conclude that Barlow was coming back to Austin with drugs and that they would likely be found in his room at the AmericInn.
Barlow next attacks the reliability of the informant. Where a probable cause determination is based on an informant's tip, the informant's veracity and the basis of his or her knowledge are considerations under the totality of circumstances test. State v. Ward, 580 N.W.2d at 71. Sufficient police corroboration of the information supplied bears on the informant's reliability. Id. See also State v. Balsimo, 389 N.W.2d 550, 552 (Minn.App. 1986) (search warrant held valid where informant's information was corroborated by the police.) Moreover, in narcotics cases, information obtained during a "controlled buy" is afforded a high degree of reliability. State v. Hawkins, 278 N.W.2d 750, 751-52 (Minn. 1979).
Contrary to Barlow's contentions, Steihm corroborated information received from the confidential informant. The informant told the police that Stewart and Charles Barlow were involved in a sale of drugs. This was corroborated by the fact that the police otherwise knew that the two individuals were drug dealers. The informant also told the police that Wadley would possibly receive nine more ounces of cocaine. From the information obtained through the phone records at the AmericInn, the police found that Wadley and Barlow had exchanged telephone calls, which was consistent with a pending drug deal. Moreover, the staff at the AmericInn placed Wadley in the same room that Barlow had reserved for November 17 and 18, 1999.
Barlow claims that Steihm failed to establish the informant's reliability because Steihm did not state that this informant was reliable in the past, nor did he refer to him in the affidavit as "Confidential Reliable Informant." But Steihm did indicate that the informant supplied this information after a "controlled buy." Controlled buys can indicate an informant's reliability because they involve "police surveillance of as much of the transaction * * * as possible." Hawkins, 278 N.W.2d at 751.
Barlow next claims that the informant's information does not establish probable cause because it does not relate to him. However, the informant's statements regarding the availability of more drugs through Wadley, who was in contact with Barlow and who was also connected with Room #228 at the AmericInn, does indicate the probability that drugs would be found in that room. Moreover, the informant's tip did not form the sole basis of the police suspicion that Barlow was involved in the sale of drugs. The confidential informant merely buttressed Steihm's belief that drugs would be found in Room #228 when Barlow returned to Austin in November.
Lastly, Barlow contends that the warrant application did not establish a connection between the crime and the hotel room at issue. When the request of the court is for issuance of a warrant to search a particular location, there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched. See Souto, 578 N.W.2d at 749. In Souto, the supreme court rejected the conclusion that simply stating that a defendant was a "drug trafficker" was sufficient to establish probable cause to search the defendant's residence for drugs. Id. In contrast, the indication of Barlow's involvement in the sale of drugs comes directly from his activities at the AmericInn. Barlow reserved Room #228; Wadley registered for the same room.
Barlow's reliance on State v. Ward, 580 N.W.2d 67 (Minn.App. 1998) is also misplaced. In that case, the affidavit failed to establish a connection between the defendant and the location to be searched. In contrast, the affidavit here specifically indicated that Barlow was registered to stay in Room #228 on November 17 and 18, 1999.