Opinion
No. C4-97-60.
Filed December 16, 1997.
Appeal from the District Court, Pennington County, File No. K096439.
Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, (for Respondent).
David M. Olin, Pennington County Attorney, (for Respondent).
Stephen M. Warner, Special Assistant State Public Defender, Lawrence W. Pry, Assistant State Public Defender, (for Appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Gary Senum appeals the district court's determination that sufficient probable cause supported the search warrant that led to the discovery of the narcotics in his home. We affirm.
FACTS
On April 12, 1996, Officer Tim Miller of the Thief River Falls police department applied for a warrant to search Gary Senum's residence and vehicles. The affidavit stated:
(1) That on April 8 and 10, 1996, the Pennington County sheriff's office received two anonymous phone calls. The first alleged that Senum and another individual had traveled to Washington, D.C., the previous week and brought back 30 pounds of marijuana and 5 to 10 pounds of cocaine. The second stated that the two had split the drugs and had other individuals come to their homes to pick them up, rather than selling them personally on the street.
(2) That Officer Miller knew Senum "to be involved in drugs in the Thief River Falls community."
(3) That, while executing a search warrant on the home of a Bonnie Kaml, where one-half gram of cocaine and "BCA monies used in a control buy" were found, Officer Craig Mattson answered Kaml's phone and the following conversation with a male caller took place:
Caller stated, Is Bonnie there;
Mattson stated, no, she just stepped out for a little bit;
Caller stated, who's this;
Mattson stated, Bob, who's this;
Caller stated, Gary;
Mattson stated, do we know each other;
Caller stated, it's hard to say I can't see you over the phone, can I leave Bonnie a message, I just wanted to bring the fish over.
Officer Mattson dialed *69 to trace the call and learned that the number corresponded to Senum's residence. Mattson called back and got an answering machine, which identified the number as Senum's.
Somewhat later, Mattson answered another phone call from a male caller. Mattson asked if the caller was Gary, and the caller identified himself as "Rob." Mattson said, "Oh, I thought this was Gary, he was supposed to deliver some fish." The caller chuckled and repeated, "Deliver fish."
The affidavit continued:
The term "fish" is known terminology for controlled substances. For example, known drug users identify controlled substances as car parts, fish, and other slang terms to avoid detection. It should also be noted for the purposes of this warrant that Bonnie Kaml has no fish or aquariums and Gary Senum is not in the business of selling fish.
On the basis of the affidavit, a district court judge issued a search warrant. The search of Senum's home uncovered several items of drug paraphernalia, 10.59 grams of marijuana in scattered locations, and a screen, vial, and straw containing cocaine residue, as well as a quantity of frozen fish. Senum was arrested and charged with fourth-degree possession of a controlled substance in connection with the cocaine residue and with possession of a small amount of marijuana. At the omnibus hearing, Senum moved to suppress all the drugs on the ground that the warrant was supported by insufficient probable cause. The court denied the motion, and Senum proceeded on stipulated facts, while preserving his right to appeal the probable cause issue. The court found Senum guilty on both counts, but stayed imposition of his sentence pending appeal.
DECISION
I. General probable cause standards
A determination of probable cause for the issuance of a search warrant is entitled to great deference, but where the facts are not in dispute, this court must independently apply the case law. State v. Richardson, 514 N.W.2d 573, 579 (Minn.App. 1994). "[T]he resolution of doubtful or marginal cases should be largely determined by the preference to be accorded warrants." State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (internal quotes omitted).
Minnesota has adopted the U.S. Supreme Court's "totality of the circumstances" test for determining whether probable cause exists. Id. Under this test, "the reviewing court is not to review each component of the affidavit in isolation but is to view them together." State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). The determination is limited to the information contained in the affidavit offered in support of the warrant application. State v. Kahn, 555 N.W.2d 15, 18 (Minn.App. 1996). "The law of probable cause prevents the issuance of a search warrant on the basis of vague and uncertain information." State v. Jannetta, 355 N.W.2d 189, 193 (Minn.App. 1984), review denied (Minn. Jan. 14, 1985).
A police officer "`may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person.'" State v. Skoog, 351 N.W.2d 380, 381 (Minn.App. 1984) (quoting Texas v. Brown , 460 U.S. 730, 746, 103
S.Ct. 1535, 1545 (1983) (White, J., concurring) (citing United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981))). Generally, where there is evidence to suggest that the suspect possesses quantities of contraband greater than what may conveniently be carried, the police may presume the contraband is in the suspect's home. Rosillo v. State, 278 N.W.2d 747, 749 (Minn. 1979).
Particular forms of evidence
Where a probable cause determination rests on an informant's tip, the veracity and basis of knowledge of the informant are considerations under the totality test. State v. Albrecht, 465 N.W.2d 107, 108 (Minn.App. 1991) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)). A first-time citizen informer is presumed reliable, but the affidavit must specifically aver that the informant was not involved in criminal activity. State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978). This presumption does not apply where the police do not know the informant's identity. State v. Gabbert, 411 N.W.2d 209, 212 (Minn.App. 1987).
An informant's credibility may be established by sufficient police corroboration of the information supplied, but corroboration of easily obtained facts does not create sufficient probable cause where the police do not know the identity of the informant. Id. at 212-13; cf. McCloskey, 453 N.W.2d at 702, 703-4 (allowing use of corroboration of easily obtained facts to enhance informant's credibility where informant met sheriff face-to-face and made declarations against interest). The corroboration inquiry "ordinarily deals with the major details of an informant's story," and probable cause is not destroyed because minor details turn out to be incorrect. State v. Eling, 355 N.W.2d 286, 290-91 (Minn. 1984).
Less reliable tips, or a suspect's reputation for criminal behavior, may be considered in combination with other factors. See, e.g., Siegfried, 274 N.W.2d at 116. But "[c]onduct of third parties cannot provide probable cause * * * unless the person's actions afford independent suspicion that he too was engaged in the prohibited conduct." State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn.App. 1992).
Application in the instant case
The totality of the circumstances from which the issuing judge inferred probable cause comprises (1) two anonymous phone calls to the sheriff, (2) a call apparently from Senum to a house in which drugs were found, mentioning an intent to deliver "fish"; (3) "Rob's" reaction to the term "fish"; and (4) Senum's reputation among police officers.
Because the police did not know the identity of the informant, the calls to the sheriff's office cannot establish probable cause without corroboration. Similarly, Bonnie Kaml's conduct cannot be imputed to Senum without evidence linking him to narcotics as well. No details of the phone calls were corroborated, and some were incorrect. But probable cause may be established from the totality of the circumstances even where the individual elements are not sufficient in themselves. See, e.g., Siegfried, 274 N.W.2d at 116. We consider the phone calls as relevant only to Senum's general reputation for drug involvement, in combination with the officer's statement of personal knowledge. Cf. State v. Krech, 399 N.W.2d 203, 206 (Minn.App. 1987) (holding that court properly considered statements from informants in bars in combination with other evidence), aff'd as modified, 403 N.W.2d 634 (Minn. 1987).
The two calls involving "fish" thus assume central importance as corroboration of the reputation evidence, as a prerequisite for imputing Kaml's behavior to Senum under Eggersgluess , and for independent probative value. The crucial passage of the affidavit reads:
The term "fish" is known terminology for controlled substances. For example, known drug users identify controlled substances as car parts, fish, and other slang terms to avoid detection.
While this passage is somewhat ambiguous, the most likely meaning for the two sentences read together is that "fish" is one of a finite number of code terms by which drug users refer to controlled substances in the presence of third parties. This knowledge would certainly be within the province of a police officer and could reasonably raise suspicion in view of Senum's reputation and the fact that his call was made to a residence where police officers were in the process of executing a search warrant for controlled substances, and where narcotics were in fact found. "Rob's" reaction, although ambiguous in light of the fact that his tone of voice cannot be discerned, could support the interpretation that "fish" was understood to mean drugs. The informant's information, together with ordinary presumptions, could then supply the "object-place nexus" required to search Senum's home. See Kahn, 555 N.W.2d at 18-19 (quoting State v. Cavegn , 356 N.W.2d 671, 674 (Minn. 1984)); Rosillo, 278 N.W.2d at 749 (finding presumption that reputed drug dealer stores drugs in home reasonable).
Senum argues that the affidavit, together with Officer Miller's testimony at the suppression hearing, suggests that the name of virtually any common item could be considered a code term for narcotics. We are required to consider only the evidence in the affidavit. Kahn, 555 N.W.2d at 18. While the second sentence of the "fish" passage could be read this way, this interpretation is difficult to reconcile with the statement in the first sentence that "fish," specifically, is "known terminology for controlled substances." We do not believe the judge erred in issuing the warrant on the basis of the probable meaning of the information before him, and although the question is close, we conclude that the information in the affidavit is not so vague and ambiguous as to preclude a finding of probable cause. See Jannetta, 355 N.W.2d at 193.
Altogether, this evidence appears tenuous as a "`substantial basis for * * * conclud[ing] that a search would uncover evidence of wrongdoing.'" Wiley, 366 N.W.2d at 268 (quoting Jones v. United States , 362 U.S. 257, 271, 80 S.Ct. 725, 736 (1960)). But we cannot say that the evidence is insufficient as a matter of law, and because "the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded warrants," id. (internal quotes omitted), we affirm the issuing judge's determination that the affidavit provided sufficient probable cause to justify the search.