Opinion
No. C2-00-148.
Filed October 16, 2001.
Appeal from the District Court, Faribault County, File No. K39982.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General and Brian Roverud, Faribault County Attorney (for respondent)
Lawrence W. Pry, Deputy State Public Defender, Marie Wolf, Assistant State Public Defender (for appellant)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This appeal from a conviction for first-degree controlled substance offense has been remanded by the supreme court for reconsideration of this court's earlier opinion, State v. Rochefort, 619 N.W.2d 564 (Minn.App. 2000), rev'd and remanded, 631 N.W.2d 802 (Minn. 2001). Although the application for a search warrant was vague and misstated several dates, given the preference accorded to search warrants and the deference accorded to a district court's probable cause determination, we affirm the conviction.
DECISION
The supreme court has reversed and remanded this matter to us for reconsideration in light of the deferential standard of review applied to the issuance of a search warrant. Rochefort, 631 N.W.2d at 805. In reviewing the district court's determination that there is probable cause to support the issuance of a search warrant, we must accord great deference to the district court's decision. Id. at 804; State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). This court reviews the district court's decision to issue the warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed. Souto, 578 N.W.2d at 747.
The search warrant application consisted of eleven paragraphs, which were summarized in our earlier opinion, Rochefort, 619 N.W.2d at 565-66. The affiant, a police officer assigned to a drug investigation unit, detailed an investigation that targeted appellant Rochefort after confidential informants tied Rochefort to a methamphetamine lab at Lowell Willard's residence in early 1998 and to a January 1998 vehicle stop in which methamphetamine and some chemicals used in its manufacture were found. As we concluded in our earlier opinion, this information had become stale by the time the warrant was obtained in March 1999. See id. at 567. Moreover, the application provided no information about the reliability or basis for knowledge of any of the informants. See id. Thus, the information contained in these three paragraphs could not provide the requisite probable cause.
In paragraph four of the application, the affiant officer related a visit to the Willard residence, on an unspecified date, during which Rochefort and others prevented Willard from talking to the officer by bringing him inside the house. Paragraph five related that during another visit to the Willard house in March 1998, Willard revealed to the affiant officer that he was not doing "meth" anymore, that he had banished certain people from his house, and that he was not allowing Rochefort to stay there any longer. Paragraph six described the execution of a search warrant at the Willard residence on "4-27-99" that resulted in discovery of a trace amount of methamphetamine in the living room.
These three paragraphs, all relating to events at the Willard residence, must be read together. See generally State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App. 1991) (holding that reviewing court must be careful not to view each component of application in isolation). Because paragraph four provided no date for the information acquired, it may be as stale as the information provided by the informants. Moreover, paragraph six provided an erroneous date because the warrant was executed more than a year before "4-27-99." Nevertheless, because paragraph five tended to tie Rochefort to the methamphetamine activity that had occurred at the Willard residence, it provided the first piece of information to support probable cause.
The next three paragraphs in the warrant application focused on Rochefort personally, rather than on the Willard residence. Paragraph seven stated that law enforcement obtained a receipt in January 1999 showing that Rochefort had purchased iodine crystals, a precursor chemical in the manufacture of methamphetamine, as well as a 500 ml flask. Paragraph eight related that, after police started searching the garbage at Rochefort's home, Rochefort was cited on January 27, 1999 for illegally burning garbage. Paragraph nine stated that the DEA had reported that Rochefort had made another purchase of iodine.
The purchase of a precursor chemical to methamphetamine, particularly after Rochefort had been connected to that drug at the Willard residence, provided another piece of information to support probable cause. See U.S. v. Anton, 633 F.2d 1252, 1254 (7th Cir. 1980) (holding that possession of precursor chemicals in large quantities may create reasonable inference of use in drug manufacture). Although the veracity or reliability of the allegation of a second purchase of iodine, in paragraph nine, is questionable because it relied on a vague hearsay report, a second purchase was not required to establish probable cause.
The search warrant application, which omits or misstates several dates and makes several vague assertions, is not a "model of specificity." State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999). But the omission of relevant dates or time periods is not necessarily fatal. Id. at 789. In addition, doubtful or marginal cases such as this must be resolved largely by reference to the preference accorded to search warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990). Applying this deferential standard, the warrant application may be read to establish a "substantial basis" for concluding that probable cause existed. See Souto, 578 N.W.2d at 747. Finally, while Rochefort has not challenged the showing of a nexus to his residence, paragraphs eight (the garbage search and later citation for illegal burning), and eleven (a taped phone call indicating a "Rick" living near Winnebago had "blown up his basement") tended to establish such a nexus. See generally State v. Kahn, 555 N.W.2d 15, 18-19 (Minn.App. 1996).
The district court's denial of Rochefort's suppression motion and his subsequent conviction are therefore affirmed.