Opinion
No. A03-511.
Filed March 9, 2004.
Appeal from the District Court, Dakota County, File No. K2-01-2484.
Mike Hatch, Attorney General, and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Government Center, (for respondent)
Earl P. Gray, Mark D. Nyvold, (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 challenges his conviction for first-degree controlled-substance crime and possession of a firearm by an ineligible person arguing there was not probable cause for the search warrant issued for his home. Because we determine the district court had a substantial basis for finding probable cause to issue the search warrant, we affirm.
DECISION
Execution of a search warrant at appellant's residence revealed two handguns, several knives, $10,300 in cash, various quantities of marijuana and cocaine, and drug paraphernalia. Appellant argues that the search warrant was not supported by probable cause because it relied on stale information and information provided by a confidential informant whose credibility was not established.
This court's review of a district court's probable cause determination is limited, with great deference afforded to the issuing court. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Rather than deciding the issue de novo, this court's task is to "ensure that the issuing judge had a `substantial basis' for concluding that probable cause existed." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (citation omitted). To determine whether the issuing court had a substantial basis for finding probable cause to search a location, this court looks to the "totality of the circumstances" test for probable cause promulgated by the U.S. Supreme Court in Illinois v. Gates:
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, 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.
462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983).
Appellate courts "must be careful not to review each component of the affidavit in isolation. Even if each component is judged unsubstantial, the components viewed together may reveal . . . `an internal coherence that [gives] weight to the whole.'" Wiley, 366 N.W.2d at 268 (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 2089 (1984)). Marginal or doubtful cases should be resolved with a preference for warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
A search warrant is not valid if the information is so stale that there is no probable cause to believe that the items sought will still be in the place to be searched when the warrant is executed. Sgro v. United States, 287 U.S. 206, 210-11, 53 So. Ct. 138, 140 (1932). The passage of time is less significant when the activity is ongoing. State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998). Courts have refused to set arbitrary time limits in obtaining a warrant or to establish a rigid formula in making this determination. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984). Instead, the approach is one of flexibility and common sense, determined by the circumstances of each case. Id.
Normally applications for a search warrant set forth the timeframe in which conduct occurred or objects may be found. Although courts have expressed strong disapproval of the omission of a temporal frame of reference from an affidavit that forms the basis for a search warrant application, under the totality-of-the-circumstances test, such an omission is not per se fatal. State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999). Courts may reasonably infer the timing from the context of the affidavit. Id.
The warrant in this case was obtained on August 15, 2001, executed on August 21, and was based on the following: (1) information from an unidentified confidential informant whose observations were not dated; (2) a search of appellant's garbage 72 hours before the warrant was obtained; and (3) appellant's 1991 fifth-degree felony controlled-substance conviction. Each of these components, when viewed in isolation, is insufficient to justify a finding of probable cause, but when viewed together with the deference given to the issuing court's determination, they support the issuance of the warrant.
The informant stated that he had observed appellant using and selling narcotics and that appellant "deals in ounces mostly from Marty's Bar in West St. Paul but also deals from his residence at 7605 Cahill Court in the City of Inver Grove Heights." As appellant correctly argues, the language is ambiguous. There is no mention of when the informant witnessed this event. The informant observed past activity; it is not clear from the statement whether the activity continued into August. Based on the use of the present tense verb "deals" and the context in which the word was used, the district court found that the activity was ongoing and therefore not stale. Although we acknowledge the language is open to different interpretations, we find that the district court made a permissible inference that the possible drug activity was current.
Appellant also emphasizes that part of the supporting evidence for the search warrant was the reliance on an unidentified 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 important considerations under the totality-of-circumstances test. State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991). A single, anonymous tip that fails to provide a basis to conclude that the informant is either honest or reliable does not provide probable cause. See Gates, 462 U.S. at 227, 103 S.Ct. at 2326. Caselaw has identified aspects of a tip that indicate whether it is reliable. See McCloskey, 453 N.W.2d at 704 (finding probable cause when informant gave information face-to-face, gave a reason for anonymity, and made a statement against interest); Wiley, 366 N.W.2d at 269 (stating that recent personal observations of incriminating conduct is the preferred basis for an informant's knowledge but that the informant's success rate and police corroboration, even if of non-key details, contributed to the credence of the informant's tip); State v. Ward, 580 N.W.2d 67-72 (Minn. App. 1998) (expressing reluctance to believe the "typical stool pigeon" who cooperates to curry favor with the authorities).
Here, no information was included in the affidavit showing that the informant was credible. However, the informant's report was corroborated by a search of appellant's garbage. The search of appellant's trashcan revealed numerous marijuana stems and seeds, cigarettes testing positive for marijuana, plastic baggies, baggie corners, and two pieces of plastic straws, which tested positive for cocaine. A trashcan search can provide an independent and substantial basis for a district court's probable cause determination. State v. Papadakis, 643 N.W.2d 349, 356 (Minn. App. 2002).
Appellant argues that the search was inadequate to form such a basis because the evidence found related to drug use and not selling and because the evidence found was stale due to the delay between the search and the warrant's execution. While we recognize that the evidence more strongly supports an inference of drug use than drug selling, it does corroborate the informant's statement that he observed appellant using drugs. Based on the corroboration of the drug use, the informant's observation of appellant selling drugs was also credible.
The delay of nine days between the garbage search and the warrant's execution does not necessarily make the evidence stale. Minnesota courts have noted that whether a delay in executing a search warrant negates probable cause depends on a number of factors:
The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime . . . of the criminal . . . of the thing to be seized . . . of the place to be searched. . . .
State v. Yaritz, 287 N.W.2d 13, 16-17 (Minn. 1979) (quotation and citation omitted).
In Yaritz, the court found that a six-day delay was reasonable because
[w]hile it is true that a drug sale may be a single-occurrence crime, the affidavit . . . indicate[d] that defendant was in the business of selling drugs and that he had been doing it on a continuing basis. Because of this, . . . it is reasonable to conclude that the probable cause [that existed on the day the warrant was obtained] continued to exist [six days later] when the warrant was executed.
Id. at 17. Here, the finding of probable cause occurred only three days after the evidence from the garbage search was discovered. The informant suggested the activity was ongoing, and only six days passed between the finding of probable cause and when the warrant was executed. As in Yaritz, it is reasonable to conclude that the probable cause found when the warrant was obtained still existed when it was executed.
A background check on appellant revealed a 1991 fifth-degree felony controlled-substance conviction. A prior conviction may have probative value in making a probable cause determination. McCloskey, 453 N.W.2d at 704. Here, ten years elapsed since appellant's conviction; standing alone it could not support a finding of probable cause. But it incrementally compliments the informant's report and the trashcan search. Although marginal, it adds information on his record. In sum, it was part of the totality of the circumstances the district court had in front of it in deciding whether to issue the search warrant.
Although the affidavit supporting the application for a warrant in this case is not a model, aggregating all the information, we conclude that there was a substantial basis for the district court's determination that there was probable cause to believe contraband would be found in appellant's residence.