State of Minnesota, Respondent, vs. Shawn Michael O'Donnell, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1163

State of Minnesota,

Respondent,

vs.

Shawn Michael O'Donnell,

Appellant.

Filed May 13, 2003

Affirmed

Robert H. Schumacher, Judge

Dakota County District Court

File No. KX012281

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 551103; and

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Shawn Michael O'Donnell challenges his conviction for fourth- and fifth-degree controlled substance offenses, arguing the warrant to search his room was not supported by probable cause.  We affirm.

FACTS

            In July 2001, a confidential concerned citizen (CCC) informed Lakeville police that within the last four hours he had been inside O'Donnell's residence where he had seen an Adidas shoe box containing a "large amount" of marijuana.  The CCC told the police the address of the home where O'Donnell lived with his grandparents and the license plate number of O'Donnell's car.  

            The police went to the home to conduct surveillance and saw the vehicle identified as O'Donnell's by the CCC inside the open garage.  The police then spoke with the homeowner outside the home and asked whether O'Donnell was inside.  The homeowner invited the police inside, knocked on the door of O'Donnell's bedroom, determined O'Donnell was in the room, and told him the police wanted to speak to him.  When O'Donnell opened the door of the room, the police saw an Adidas shoebox matching the box described by the CCC on a shelf in the closet.  After O'Donnell refused to consent to a search, the police obtained a search warrant based on the CCC's information and their own observations.  When the police executed the warrant, they found more than one pound of marijuana in the Adidas shoe box.  O'Donnell was charged with one fourth-degree controlled-substance crime, in violation of Minn. Stat. § 152.024, subd. 1(4) (2000), and one fifth-degree controlled-substance crime in violation of Minn. Stat. § 152.025, subd. 2(1), 3(a) (2000).

            O'Donnell moved to suppress the marijuana on the grounds the warrant application did not provide probable cause to justify the search.  The district court denied the motion.  The parties then agreed to submit the matter of O'Donnell's guilt to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The court found O'Donnell guilty as charged, sentenced him to 27 months, and stayed the sentence pending the outcome of this appeal. 

D E C I S I O N

A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate. See Minn. Stat. § 626.08 (2000).  Accord U.S. Const. Amend. IV; Minn. Const. art. I, § 10.  In determining whether a warrant is supported by probable cause, we afford "great deference" to the issuing judge's finding of probable cause.  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). We consider the totality of the circumstances to ensure that the issuing judge had a "substantial basis" for concluding that probable cause existed, meaning that there was a fair probability 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).  

            O'Donnell argues that the warrant application lacked sufficient probable cause because it failed to establish the credibility of the CCC and reliability of the information.  See State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (stating determination whether a tip establishes probable cause depends on a consideration of the informant's veracity and the basis of his or her knowledge).  "Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant's knowledge."  State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985)

A first-time citizen informant who has not been involved in criminal activity is presumed to be reliable, but the affidavit must specifically aver that the informant is not involved in criminal activity.  State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978).  Here, the affidavit does not aver the CCC was not involved in criminal activity, so the presumption of reliability does not apply.  But

an informant's reliability may be established by sufficient police corroboration of the information supplied and corroboration of even minor details can lend credence to the informant's information where the police know the identity of the informant. 

Ward, 580 N.W.2d at 71 (quotation and citation omitted); see also Siegfried, 274 N.W.2d at 115 (recognizing that when the police can corroborate part of the informer's tip as truthful, it suggests that the entire tip may be reliable).  Here, the police corroborated the CCC's personal observation of criminal conduct when they (1) confirmed that appellant did reside at the address provided by the CCC; (2) observed a car with the license plate number given as O'Donnell's by the CCC; (3) observed an Adidas shoebox matching the description provided by the CCC. 

            O'Donnell asserts the CCC had engaged in criminal activity just before speaking with the police about O'Donnell and was therefore not credible, but provides no record evidence to support the assertion. 

Even where an informant is not credible, his information may be sufficiently reliable where it is supported by corroborating factors [that] provide a substantial basis for crediting the informant's tip * * * .

State v. Filipi, 297 N.W.2d 275, 277 (Minn. 1980) (quotation omitted). 

            O'Donnell next argues the CCC's statement that he had seen "a large amount" of marijuana in the Adidas shoe box was conclusory and failed to establish that O'Donnell possessed a sufficient quantity of marijuana to constitute a crime justifying a search warrant.  See Minn. Stat. § 152.027, subd. 4 (2000) (stating possession of up to 42.5 grams of marijuana is a petty misdemeanor, not a crime).  We disagree.  First, the statement that there was a "large amount" of marijuana reasonably suggests a fair probability that contraband or evidence of a crime would be found in appellant's residence.  See State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999) (stating issuing judge may draw "reasonable inferences" from the affidavit's allegations).  Second, to the extent that a "large amount" lacks specificity, "the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants."  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quotation omitted). 

We conclude that the issuing judge had a substantial basis for concluding probable cause existed to support the search warrant.

Affirmed.