State of Minnesota, Respondent, vs. Chhoung Voeung, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-383

State of Minnesota,
Respondent,

vs.

Chhoung Voeung,
Appellant.

 

Filed January 18, 2000
Affirmed
Amundson, Judge

Ramsey County District Court
File No. K5-98-1398

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Steven P. Lundeen, 100 Karmel Square, 2942 Pillsbury Avenue South, Minneapolis, MN 55408 (for appellant)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON

, Judge

Appellant challenges his conviction for felony possession of a firearm, alleging that the district court erred in denying his motion to suppress evidence found during the execution of a search warrant because the information contained in the supporting affidavit did not establish probable cause to search his home or to believe that the gun used in a shooting committed by another individual would be found there. We affirm.

FACTS

On April 13, 1998, appellant Chhoung Voeung was charged with one count of possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). The charge arose from the execution of a search warrant at Voeung's home, and the discovery of a .22 caliber Marlin rifle. Voeung was prohibited from possessing firearms due to a 1994 conviction for second-degree assault.

The following facts are taken from the search warrant affidavit prepared by Officer Richard Straka, an officer assigned to the Minnesota Gang Strike Force who had previously worked with the Asian Crime Task Force. On March 26, 1998, an aggravated assault shooting occured outside a gas station in St. Paul. The victim, a Cambodian male, was shot by another Cambodian male, later identified as Phoeuy Chuon. Prior to the shooting, the victim saw Chuon talking on the pay phone. Two of the victim's friends recognized Chuon as a member of the Red Cambodian Bloods (RCB) gang from Rochester. Chuon entered a waiting red or maroon Honda with chrome wheels driven by another Cambodian male wearing a black hat with the letter "D" on it. The car drove off, returning minutes later at high speed and stopping five feet from the victim. Chuon leaned out of the passenger side of the car and fired at short range, striking the victim, then the car drove off. Friends of the victim told police that they were members of the ABZ (Asian Boyz) street gang.

Officer Straka contacted Rochester Police Officer Mark Wood, who interviewed two witnesses to the shooting, learning that one witness had recognized the gunman, and noticed that he had a RCB tattoo on his arm. He also said that the driver of the car was wearing a black hat with a "D" on it, and described the car as a red Honda two-door Accord. Wood talked with another witness who told him that he thought the gun was a .38 revolver, and that the vehicle had polished aluminum or chrome "American" five-star rims.

On March 31, 1998, Officer Straka received a call from a confidential informant who told him that the driver was a Cambodian male named Chung Voeung, who lived in an apartment in St. Paul, and drove a red or maroon Honda with chrome rims. The informant also corroborated that the gun was a .38 caliber handgun, and that the shooter was Phoeuy Chuon, an RCB gang member from Rochester, with RCB tattoos, now living in St. Paul. The informant told Officer Straka that Voeung worked at Turning Inc., and supplied the phone number.

Officer Straka again contacted Officer Wood, who identified Chuon as an RCB gang member. Officer Straka obtained a photo of Chuon. The victim and two witnesses who were previously interviewed, identified Chuon as the gunman in a photographic lineup.

Officer Straka confirmed Voeung's home address, and checked his criminal history, learning of his prior conviction for second-degree assault with a dangerous weapon. At Turning, Inc., a deputy found a maroon 1989 two-door Honda Accord with chrome wheels parked in the lot. The license plate was registered to Voeung.

Officer Straka explained that RCB stands for Red Cambodian Blood, a Cambodian gang, which had been involved, as were the Asian Boyz, in aggravated assaults, terroristic threats, and drive-by shootings. It was his belief that Voeung would keep guns at his residence, as it was his experience that gang members are often armed and keep guns at their homes. He also believed the aggravated assault was gang-related, and that Voeung's residence would contain evidence of gang membership tending to show a prior relationship with Phoeuy Chuon and other RCB gang members.

At a suppression hearing, Voeung challenged probable cause for the issuance of the search warrant. The district court found probable cause and denied the motion to suppress. Following a jury trial, Voeung was found guilty. Voeung appeals from his conviction, arguing that the affidavit alleged insufficient facts to establish probable cause both for the issuance of the warrant, and that the items listed in the warrant would be found at his home.

D E C I S I O N

We pay great deference to an issuing judge's determinations of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Minnesota has adopted the United States Supreme Court's "totality of the circumstances" test for determining whether a search warrant is supported by probable cause. Id. (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). The issuing judge

is simply to make a practical, commonsense 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 will be found in a particular place.

Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). Our task is simply to ensure that the issuing judge had a "substantial basis" for concluding that probable cause existed. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990) (quoting Gates, 462 U.S. at 238-39, 103 S. Ct. at 2332). In reviewing the sufficiency of an affidavit under the totality of the circumstances test, we must be careful not to review each component of the affidavit in isolation. Id.

Even if each component is judged unsubstantial, the components viewed together may reveal in the informant's tip "an internal coherence that [gives] weight to the whole." Furthermore, the resolution of doubtful or marginal cases should be "largely determined by the preference to be accorded warrants."

Wiley, 366 N.W.2d at 268 (citations omitted).

 

I. Warrant Affidavit

Voeung argues that the affidavit is insufficient because it fails to state the informant's reliability or the basis of the informant's knowledge. The district court found that Officer Straka's affidavit was sufficient to establish probable cause because the information given by the confidential informant was corroborated by other sources.

In determining whether probable cause existed, both the issuing judge and the reviewing court may consider only the information presented in the affidavit offered in support of the search warrant application. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996). Here, the affidavit contains no information about the confidential informant, nor about the basis of the informant's knowledge. There is no indication that the informant was a first-time citizen informant whose credibility is presumed, or an informant whose information had previously proved reliable. See State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (information provided by an informant can support a finding of probable cause if the informant is a first-time citizen informant whose credibility is presumed or an informant whose information has previously proved reliable). Therefore, the issuing judge cannot simply presume that the informant's information is credible. State v. Maldonado, 322 N.W.2d 349, 351 (Minn. 1982).

While the factors of reliability and basis of knowledge are relevant considerations in a totality of the circumstances analysis, a deficiency in one can be compensated for by a strong showing as to the other, or by some other indicia of reliability. Gates, 462 U.S. at 233, 103 S. Ct. at 2329. An informant's reliability, and the reliability of the information provided, can be established by police corroboration. McCloskey, 453 N.W.2d at 704. "The independent corroboration of even innocent details of an informant's tip may support a finding of probable cause." State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citation omitted).

Here, the informant told Officer Straka the name and home address of the driver's place of employment, and gave a description of the vehicle used in the shooting. He also named the gunman, gave his address, and confirmed the type of gun used. Officer Straka confirmed Voeung's home address and another deputy went to Voeung's place of employment, where he found a maroon Honda Accord with chrome wheels parked in the lot; the license plate was registered to Voeung at his home address. This information was consistent with that given by the witnesses.

Officer Straka also checked Voeung's criminal history, learning of his previous conviction for assault with a dangerous weapon. The fact that an individual has been arrested previously has at least slight probative value in determining probable cause. See McCloskey, 453 N.W.2d at 704 (defendant's prior record has slight probative value).

Voeung argues that the search warrant application included an intentional omission or misrepresentation that vitiated the search warrant. One witness had given the information that the tires on the car used in the drive-by-shooting had aluminum or chrome "American" five-star rims, but the car observed at Voeung's place of employment, and traced to Voeung, had spoked chrome rims. Where an affiant deliberately falsifies or recklessly disregards the truth in his affidavit, the district court should set aside the false statements, or supply the omissions, and decide whether the affidavit still establishes probable cause. State v. Causey, 257 N.W.2d 288, 292 (Minn. 1977). See also Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978) (warrant may be void if application contains intentional or reckless misrepresentations of material fact).

The district court concluded that the application contained no material misrepresentations because the search warrant affidavit neither confirmed nor denied whether Voeung's car had five-star rims, but only provided that his car had chrome rims. Even if the information rose to the level of a "misrepresentation," the district court found the information verified by Officer Straka, including Voeung's address and place of employment, as well as the color, make, and model of his vehicle, sufficient to conclude that the warrant was supported by probable cause.

Voeung also argues that the corroboration of the information with respect to the gunman does not establish that the information was correct as to the driver, particularly when none of the witnesses to the crime identified him as the driver. However, the district court did not rely solely on this information in finding probable cause, but only considered it as one factor in a "totality of the circumstances" analysis.

We conclude that the evidence supports the district court's finding that the corroborated information provided probable cause for the issuance of the search warrant.

II. Seizure of the Firearm

Voeung also argues that the facts alleged in the affidavit were insufficient to establish probable cause to believe that the items listed in the warrant, namely a firearm and gang-related items, would be found at his home. The district court found the facts set out in the affidavit sufficient because the evidence established that Voeung's car had been used in a gang-related drive-by shooting and that he had previously been convicted of assault with a dangerous weapon.

The issuing judge need only have a "substantial basis" for concluding that probable cause existed that the items listed in the warrant would be uncovered during the search. McCloskey, 453 N.W.2d at 703 (citing Gates, 462 U.S. at 238, 103 S. Ct. at 2332).

Officer Straka stated in the warrant application that he believed Voeung would keep guns at his residence because the aggravated assault was a gang-related crime and it was the officer's experience that gang members are often armed and keep guns at their homes. For the same reason, and because of the relationship between the suspects, Officer Straka also believed that the residence would contain evidence of gang membership. Additionally, he included the information that Voeung had previously been convicted of assault with a dangerous weapon.

Citing State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994), Voeung argues that although police officers may rely on their training and experience to draw inferences and make deductions, mere suspicion does not equal probable cause. Voeung argues that there was no indication in the warrant application that he was a gang member. But under a "totality of the circumstances" analysis, the interrelationship of the car, driver, and RBC gunman provides more than "mere suspicion."

We conclude that the record supports the district court's finding that the affidavit established probable cause that the items listed would be found at Voeung's home.

Affirmed.