Opinion
No. C7-96-57.
Filed July 9, 1996.
Appeal from the District Court, Todd County, File No. K094419.
Hubert H. Humphrey III, Attorney General, David B. Orbuch, John Docherty, Assistant Attorneys General, (for Respondent).
Charles D. Rasmussen, Todd County Attorney, (for Respondent).
Richard L. Swanson, (for Appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
This appeal is from a judgment of conviction for fifth-degree controlled substance offense. Minn. Stat. § 152.025, subd. 2(1) (1994). Appellant Jeffrey Paul Warner challenges the sufficiency of the information presented to support issuing the search warrant. We affirm.
FACTS
Police officers executed a search warrant at the house in which Warner was living. They discovered a marijuana-growing operation, including 231.3 grams of marijuana, according to tests later conducted by the Bureau of Criminal Apprehension.
The search warrant application cited a conversation a Long Prairie police officer had had with an informant, termed a "concerned citizen" in the search warrant application.
The search warrant application related that the "concerned citizen" had been in Warner's house within the last 14 days and had seen marijuana plants growing in the basement. The application stated that the Long Prairie officer said that "to the best of his knowledge" the "concerned citizen" had no criminal history. The application stated that the records of Warner's electrical use showed "a higher than average consumption of electricity." The application also noted that one officer had driven by the house and observed that the basement windows were covered with an opaque material.
The trial court denied Warner's motion to suppress evidence seized pursuant to the search warrant. Warner waived a jury trial and agreed to a trial based on stipulated facts to expedite appellate review of the suppression issue.
DECISION
In determining the sufficiency of a search warrant application, the issuing magistrate makes "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], 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. McCloskey , 453 N.W.2d 700, 702 (Minn. 1990) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)). Great deference must be given to the issuing magistrate's determination to issue the warrant. See, e.g., State v. Anderson , 439 N.W.2d 422, 425 (Minn.App. 1989), review denied (Minn. June 21, 1989). This court will uphold the trial court's probable cause determination if there is a "substantial basis" to support it. McCloskey , 453 N.W.2d at 703.
The United States Supreme Court has adopted a "totality-of-the-circumstances" test for determining whether a search warrant is supported by probable cause. Illinois v. Gates , 462 U.S. at 238, 103 S.Ct. at 2332. Under this test, the reviewing court is not to view each component of the supporting affidavit in isolation, but is to view them together. Massachusetts v. Upton , 466 U.S. 727, 733-34, 104 S.Ct. 2085, 2088-89 (1984).
There is no requirement that a search warrant application explicitly state that the informant is a "first-time citizen informant." The search warrant application here described the "concerned citizen" as a person with no known criminal history and a citizen in good standing. This was the equivalent of stating the individual was a presumptively-reliable first-time citizen informant. Moreover, not only is the informant's reliability presumed, but the "concerned citizen" also acquired his or her information from first-hand observation.
Warner's assertion that there was no corroboration of the tip is incorrect. The application states that an officer drove by the residence and reported that the basement windows were covered with an opaque material. This would provide some corroboration for the tip that the residents were growing marijuana in the basement. Moreover, police apparently corroborated the "concerned citizen's" tip that Warner lived at the address described. Although this was not a "key detail," it did provide at least "minimal corroboration." McCloskey , 453 N.W.2d at 701, 704 (confirmation that defendant owned house, and had phone number given, provided some corroboration of tip). Finally, the electrical records also provided corroboration. Although a more thorough review of those records, and a comparison with nearby houses, would have provided more support, the electrical records still provided significant corroboration.
Warner does not argue in his brief that the search warrant was based on material misrepresentations or omissions. A failure to investigate more fully the "concerned citizen's" background, or the electrical records, does not constitute intentional or reckless misrepresentation. There is no evidence that police "distorted statistics [or] misled the issuing judge" concerning Warner's electrical consumption. See State v. Gabbert , 411 N.W.2d 209, 213 (Minn.App. 1987). If Warner is making such a claim, he has failed to support it with copies of the electrical records, which are not included in the trial court file.