Opinion
No. C7-02-585
Filed: March 18, 2003.
Appeal from Nicollet County District Court, File No. K501473
Mike Hatch, Attorney General, Kelly O'Neill Moller, James B. Early, Assistant Attorneys General, and Michael K. Riley, Sr., Nicollet County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, (for appellant)
Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Jarrid Lee Steffen appeals from a conviction of fifth-degree controlled substance crime, challenging the determination of probable cause to issue the search warrant. Appellant argues that the evidence seized from his residence should be suppressed, because (1) the search warrant affidavit failed to establish a connection between him and the residence to be searched and (2) the police omitted material facts from the search warrant application. We affirm.
FACTS
On June 5, 2001, an anonymous caller informed the Minnesota River Valley Drug Task Force of suspected drug trafficking at a residence located at 502½ Nicollet Avenue in North Mankato. The caller stated that at all hours of the day and night, vehicles arrived at the residence, stayed a short time, and then left. The following day, the North Mankato police picked up from the residence several bags of garbage, which were searched by Ginger Peterson, an agent with the drug task force. The agent discovered several marijuana stalks and stems, a green leafy substance that tested positive for marijuana, and the remnants of marijuana cigarettes. The garbage search also established that a person named Heather Knapp lived at that address.
On July 18, 2001, garbage from the residence was again collected and searched. North Mankato Police Commander Anne Walsh discovered seeds and stems, which tested positive for marijuana. Walsh also found a letter addressed to Scott Ward, indicating that Ward had requested a change of address to 502½ Nicollet Avenue. Walsh knew that Ward had been arrested previously for possession of marijuana and firearms.
Garbage from the residence was searched a third time on August 15, 2001. Marijuana seeds and stems were found, along with two empty ammunition boxes. The trash also contained documents indicating that Steffen and an individual named Josh Bethke lived at the address.
That day, Walsh applied for and obtained a search warrant for the residence. The supporting affidavit contained information regarding the anonymous tip, the three garbage searches, and Scott Ward's criminal history. Peterson participated in executing the search warrant and searched the Nicollet Avenue residence. While executing the search warrant, Peterson found hallucinogenic mushrooms, drug paraphernalia, and mail addressed to Steffen in one of the bedrooms. Steffen later admitted to police that the mushrooms belonged to him.
Steffen was charged with fourth-degree controlled substance crime, in violation of Minn. Stat. § 152.024, subds. 2, 3 (2000), possession of drug paraphernalia, in violation of Minn. Stat. § 152.092 (2000), and fifth-degree controlled substance crime (possession), in violation of Minn. Stat. §§ 152.025, subd. 2(1), 3 and 152.02, subd. 2(3) (2000).
Steffen moved to suppress the evidence seized during execution of the search warrant. At the hearing on the motion, the owner of the residence testified that he signed a 12-month lease with Scott Ward in April or May 2001. Because of noise complaints, the owner asked Ward to leave the apartment around June 1, and Ward was last seen at the residence on July 1. Around July 10, Steffen and Bethke paid a prorated portion of the rent for July. They signed a lease on July 14 and moved in gradually during the following week.
The district court denied the motion to suppress and later found Steffen guilty on all counts. The district court imposed a 21-month sentence, stayed its execution, and placed Steffen on probation for 15 years. This appeal followed.
DECISION
Both the United States and Minnesota Constitutions provide that no warrant shall issue absent a showing of probable cause. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. With limited exceptions, a search is lawful only if it is conducted pursuant to a valid warrant. State v. Albrecht, 465 N.W.2d 107, 108 (Minn.App. 1991). A search warrant must be issued by a neutral and detached magistrate upon a finding of probable cause. Minn. Stat. § 626.08 (2000); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched. State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970).
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983)).
We review the district court's determination of probable cause to issue a search warrant to determine whether there was a substantial basis to conclude that probable cause existed. Harris, 589 N.W.2d at 787-88. "Substantial basis" in this context means a "fair probability," given the totality of the circumstances, "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) (quotation omitted). To conduct our review,
[w]e must not look to the information that the police actually had, but rather to the information presented in the affidavit to the magistrate who issued the search warrant.
State v. Kahn, 555 N.W.2d 15, 18 (Minn.App. 1996) (citations omitted).
Steffen argues that the affidavit supporting the search warrant was insufficient, because (1) there was no nexus between Steffen and the apartment and (2) the affidavit was recklessly submitted. He asserts that, because the police did not determine who was living in the residence at the time they applied for the warrant, probable cause to search the residence did not exist. We disagree.
When a court is asked to issue a warrant authorizing the search of a particular location, "there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998). Although warrant authorization only required a connection between the apartment and the marijuana, the police also discovered evidence connecting Steffen to the residence. In the garbage search conducted on the same day that the search warrant was issued, police found marijuana seeds and stems along with documents establishing Steffen's residence at 502½ Nicollet Avenue. Moreover, Steffen had already signed the lease and had begun moving into the apartment when the second garbage search took place.
Based on the evidence available at the time the police applied for the search warrant, there was "a fair probability that contraband or evidence of a crime" would be found at the residence to be searched. Wiley, 366 N.W.2d at 268 (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332). The evidence discovered in the three garbage searches, in addition to the anonymous tip, provided a substantial basis to find probable cause that evidence of drug-related activity would be found at 502½ Nicollet Avenue. See State v. Botelho, 638 N.W.2d 770, 776-77 (Minn.App. 2002) (concluding that substantial basis for probable cause existed when multiple vehicles frequented residence at all hours of the day and garbage search revealed cocaine residue); State v. Krech, 399 N.W.2d 203, 206 (Minn.App. 1987) (holding that "incessant traffic of brief visits" to residence searched was very significant fact in establishing probable cause for drug dealing), aff'd, 403 N.W.2d 634 (Minn. 1987). Further, the information contained in the affidavit was not stale, since the police applied for a warrant on the day of the final search.
We are not persuaded by Steffen's argument that the validity of the search warrant is undermined because the police did not determine the identity of all the residents of 502½ Nicollet Avenue before searching it. Steffen cites State v. Hinkel, 365 N.W.2d 774, 776 (Minn. 1985), to support his contention that a nexus is required between a person and a place to be searched. But the search warrant at issue in Hinkel authorized the search of "all persons on the premises." See Hinkel, 365 N.W.2d at 776. Hinkel does not apply here, where the search warrant authorized only a search of the premises and not a search of the residents therein.
In his pro se brief, Steffen asserts that the informant's reliability was not clearly established by the police in the search-warrant application. When an informant's tip is a basis for probable cause, the informant's veracity and the basis for his or her knowledge are considerations under the totality-of-the-circumstances test. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). The informant's tip, however, was not the only source of information supporting probable cause. As the state correctly argues, even if the informant's tip were disregarded, the garbage searches alone established a substantial basis for a finding of probable cause. See State v. Papadakis, 643 N.W.2d 349, 356 (Minn.App. 2002) (stating that "trash can search provided an independent and substantial basis for the district court's probable cause determination"). Because the facts presented in the affidavit established a fair probability that evidence of drug activity would be found at 502½ Nicollet Avenue, the district court correctly denied Steffen's motion to suppress the evidence seized during the execution of the search warrant.
Steffen also argues that, by implying that the four people for whom mail was found lived in the apartment, the affidavit contained a reckless omission, because it did not include information that some of the individuals had moved.
A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probable cause.
State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (citing Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 2684-2685 (1978)). The Franks doctrine also applies to material omissions from the affidavit. State v. Smith, 448 N.W.2d 550, 555 (Minn.App. 1989), review denied (Minn. Dec. 29, 1989). Where reckless omissions are alleged, we must determine whether, after supplying the omissions, the affidavit still established probable cause. Id.
Here, the omission was not material. That Ward and Knapp no longer lived at the residence does not defeat the probable-cause determination, because marijuana seeds, stems, cigarettes, and drug paraphernalia had been seized from the garbage of the apartment the same day that the police applied for the search warrant. From this evidence alone, there was a substantial basis to conclude that there was a fair probability that evidence of illegal drug activity would be found in the residence. The district court did not err in concluding that the search warrant was not void due to any reckless omission of material facts.