State of Minnesota, Respondent, vs. Leon Davis, Appellant.

State of Minnesota, Respondent, vs. Leon Davis, Appellant. A04-92, Court of Appeals Unpublished, January 25, 2005.

This opinion will be unpublished and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

A04-92

 

State of Minnesota,

Respondent,

 

vs.

 

Leon Davis,

Appellant.

 

Filed January 25, 2005

Affirmed in part, vacated in part Randall, Judge

 

Ramsey County District Court

File No. K6-02-4512

 

 

Mike Hatch, Minnesota Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

Lawrence Hammerling, Deputy State Public Defender, Melissa Sheridan, Assistant State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by G. Shumaker, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

RANDALL, Judge

Appellant, Leon Davis, Jr. was convicted of possession of a firearm by an ineligible person, Minn. Stat. § 624.713, subds. 1(b), 2 (2002), and possession of a firearm with removed serial number, Minn. Stat. § 609.667, subd. 2 (2002).  On appeal, appellant argues that (1) his conviction was improper because it was based on evidence recovered by police in an unlawful search of his home; (2) the evidence presented by the state was insufficient to support his conviction for possession of a firearm; and (3) the district court's sentences for both possession charges violated Minnesota's double jeopardy statute, Minn. Stat. § 609.035 (2002).  Based on the totality of the circumstances, probable cause existed for the warrant to issue.  There is sufficient evidence to support appellant's conviction.  We vacate appellant's concurrent sentence of 13 months for possession of a firearm with removed serial number.  

FACTS

Approximately 72 hours before issuance of the contested warrant, Officer Youngquist of the Ramsey County Sheriff's Department interviewed a confidential informant.  The informant, who had been arrested for possession of cocaine, told Youngquist that he had purchased the cocaine from appellant.  The informant also gave Youngquist appellant's address and phone number, stated that he would call appellant at home when he wished to purchase cocaine, and identified appellant in a photograph.  The Ramsey County Sheriff's Department crime laboratory subsequently confirmed that the substance found on the informant was cocaine.  Based on the informant's statements, which were corroborated by Officer Youngquist and appellant's arrest record, a search warrant for appellant's home was issued on December 6, 2002. 

The search warrant was executed at approximately 8:00 a.m. on December 10, 2002.  During the search, officers recovered a nine-millimeter Ruger pistol from a drawer in appellant's bedroom.  The pistol's serial number had been filed off.  Appellant was subsequently arrested for possession of a firearm by an ineligible person, and possession of a firearm with a removed serial number. 

After his arrest, appellant moved to suppress the gun and other evidence obtained during the search of his home.  Appellant argued that the informant was merely a "stool pigeon," that his statements were not trustworthy, and, thus, there was no basis for the court to issue a search warrant based on the informant's statements.  Appellant also argued that the evidence should be suppressed because there was no "particularized basis" for an unannounced entry by the police.  Appellant did not set forth any arguments regarding a duty by the police to re-evaluate the situation at the scene to determine again whether a no-knock entry was necessary.

Relying on State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001), for the proposition that "[a]fter-the-fact scrutiny of the sufficiency of a search warrant affidavit should not take the form of a de novo review," the district court denied appellant's motion to suppress on March 13, 2003.  The district court pointed out that the informant supplied information about his purchase of cocaine from appellant, which Officer Youngquist corroborated; that appellant had a criminal history involving drug offenses; and that appellant was a confirmed gang member.

Appellant's trial began on August 27, 2003, and lasted for two days.  Officer Youngquist was the state's first witness.  Youngquist testified that appellant's home had two upstairs bedrooms and that police officers found a handgun in one of the bedrooms.  Youngquist stated that the bedroom where the gun was found was "an adult bedroom," and that he was not in the room when the gun was discovered.  He testified that, around the time that the search warrant was executed, appellant was pulled over in his car while driving in the same neighborhood.  Youngquist testified further that, when he arrived at the scene where appellant was pulled over, he read appellant his rights and placed him under arrest; that appellant then agreed to talk to him, and stated that the gun belonged to his girlfriend's brother and appellant was holding it for him; that appellant said his fingerprints "may be on the gun"; and that appellant was aware he was ineligible to possess a handgun.

            The state also called Officer Barber to testify regarding the search of appellant's home.  Barber testified that there were two upstairs bedrooms in appellant's home and that it appeared that one "was used by adults" and the other "had children's things in it."  She stated that she found a handgun in a drawer underneath the bed in the "adult" bedroom; that the handgun was covered by men's clothing; and that appellant was the only adult male who lived at the residence.  Finally, Barber testified that she recognized mail addressed to appellant as taken from the bedroom where she found the handgun.

            Appellant took the stand in his own defense and testified that, on the night before police executed the search warrant on his home, he found the gun in a drawer underneath his bed.  Appellant stated that he argued with his girlfriend, told her he could not be around a gun, and was getting ready to leave the house when police arrived.  The police officers informed appellant that they were responding to a report of a domestic dispute, and encouraged appellant to leave his home for the night.  Appellant stayed at his mother's house that night, and was stopped by police the next morning on his way to a friend's house.  Appellant testified that Officer Youngquist read him his rights; that he agreed to talk to Youngquist; and that he told the officer "if you found a firearm, it belongs to [appellant's girlfriend's] brother," and that "[his girlfriend] was holding it for her brother."  Appellant admitted that he told Youngquist that his fingerprints might be on the handgun. 

            During cross-examination, appellant agreed that the gun had been found in a drawer underneath his bed, and conceded that the officers who testified against him had done so "accurately," for the most part.  But appellant did dispute Youngquist's testimony that appellant had told him he was holding the gun for his girlfriend's brother, and Officer Barber's testimony that the handgun was found in a drawer with men's clothing.  

            On August 29, 2003, appellant was convicted on both counts of the indictment.  And on October 21, 2003, appellant was sentenced to 60 months in prison for possession of a firearm by an ineligible person, and a concurrent 13-month term for possession of a firearm with serial number removed.  This appeal followed.

D E C I S I O N

I.  Suppression

Appellant asserts that the district court erred in not suppressing the gun found in his home, claiming the warrant application did not set forth probable cause for the warrant to issue.  Appellant makes two specific arguments in support of his claim: he argues that (1) the affidavit did not contain sufficient information to establish the credibility or reliability of the confidential informant, and (2) the affidavit did not establish a link between appellant's home and any drug transaction.    

"An appellate court reviews a district court's decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed."  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  An affidavit fails to support probable cause when it includes no "details . . . that would permit the issuing magistrate to independently evaluate" whether probable cause exists.  State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998).  In terms of the contents of the affidavit, the sundry elements contributing to a determination of probable cause must not be parsed out, but considered together.  State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).  Even if each component, standing alone, is insufficient to establish probable cause, "the components viewed together may reveal . . . an internal coherence that gives weight to the whole."  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).  Accordingly, a determination of whether probable cause exists for a warrant to issue is based on a test of the "totality of the circumstances."  Id. 

            The affidavit states that affiant (Officer Youngquist) has good reason to believe that cocaine would be found in appellant's home, along with other types of physical evidence typically associated with drug trafficking.  The affidavit lists the following grounds for issuance of a search warrant:  (1) a confidential arrested informant (CAI), who had been arrested "in the past 72 hours," provided information about the sale of cocaine by appellant; (2) the CAI stated that he had purchased the cocaine he was arrested with from appellant "within the last 96 hours"; (3) the CAI identified appellant and gave an accurate description of him, including height, weight, and race; (4) the CAI stated that he telephoned appellant to meet for the purchase of cocaine, and supplied appellant's telephone number to Youngquist; (5) the CAI stated that he had purchased cocaine from appellant "several times over the past year," and had seen appellant "several times with large amounts of cocaine"; and (6) the CAI's statements "were based on the CAI's own participation in the transaction and demonstrates (sic) the CAI's own penal interest, which establishes the CAI's reliability."

            The affidavit also indicates that Youngquist attempted to corroborate the CAI's information by:  (1) checking with Xcel Energy for subscriber information, which indicated that appellant lived at the home identified by the CAI; (2) conducting a "reverse" on the telephone number supplied by the CAI, which this indicated that the number was indeed appellant's home number; (3) checking "booking," which indicated appellant had been arrested on November 21, 2002, approximately two weeks prior to the date of the warrant application; and (4) checking the "State of Minnesota Criminal History Files," which indicated that appellant had been convicted for "Drugs 5th Degree" on December 4, 1998, appellant had a pending charge of "Possession of Controlled Substance with Intent to Distribute" from April 16, 1999, a "Terroristic Threats" charge of "unknown status" from February 20, 2000, and that appellant had "a criminal history out of Chicago for two Unlawful use of a weapon, Criminal Drug Conspiracy, and possession of a controlled substance from 1990 to 1995."   Finally, the affidavit states that appellant "is a confirmed Gang member thru Gang-Net," and that Youngquist believes that the CAI "could be in danger of great bodily harm, if the CAI's true identity were known."

A.        Credibility of the informant

            Appellant argues first that the supporting affidavit did not contain sufficient information to establish the credibility or the reliability of the informant.  In determining probable cause, the district court must consider both the "veracity" and the "basis of knowledge" of persons supplying hearsay information.  Souto, 578 N.W.2d at 750.  "All of the facts relating to the informant should be considered in weighing reliability."  Id.  And "[r]ecent personal observation of incriminating conduct has traditionally been the preferred basis for an informant's knowledge."  Wiley, 366 N.W.2d at 269.

            Here, the state's informant must be classified as "the typical ‘stool pigeon' who is arrested and who, at the suggestion of the police, agrees to cooperate and name names in order to curry favor with the police."  McCloskey, 453 N.W.2d at 703.  Appellant is correct in pointing out that, in Minnesota, courts are reluctant to believe such "stool pigeons."  See id;  Ward, 580 N.W.2d at 71-72. 

            However,"[a]n informant's credibility can be established by sufficient police corroboration of the informant's information."   State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  This court has held that corroboration of an address and ownership of a car, without more, is not sufficient to support a warrant based on information from a confidential informant.  Id.  But the supreme court, in McCloskey, found that where corroboration lends credence to an informer's tip, even if it is not of a "key detail," such corroboration is "at least another relevant factor on which the magistrate was entitled to rely in making the totality-of-circumstances assessment of probable cause." 453 N.W.2d 704.  See also Wiley, 366 N.W.2d at 269 (stating the same principle).

            Here, the affidavit states that Youngquist corroborated the informant's story by confirming that appellant did indeed live at the address that the informant attributed to him.  More significantly, Youngquist confirmed through a "reverse" of the phone number that the informant gave him, that the number was indeed appellant's phone number.  While this amount of corroboration is not final on the question of the informant's reliability, it does lend credence to the informant's information, i.e., that he would telephone appellant at his home when he wanted to purchase cocaine. 

B.        Nexus between appellant's home and the conduct alleged

            Appellant also argues that the affidavit did not establish a sufficient link between appellant's home and any drug transaction.  The supreme court, in Souto, pointed out that the elements necessary for a probable cause determination "include information linking the crime to the place to be searched."  578 N.W.2d at 747.  The supreme court has held that an affidavit alleging a defendant, who has sold drugs in a place other than his house probably keeps a supply of drugs in his house, is supported "by information that the defendant dealt in large quantities and by the lack of any indication that he had a separate place to keep his drugs."  State v. Cavegn, 356 N.W.2d 671, 674 (Minn. 1984) (citing Novak v. State, 349 N.W.2d 830 (Minn. 1984)).  A lack of information in the affidavit regarding a separate location where drugs might be stored creates a "negative inference" that the police were unaware of another plausible location to search.  Novak, 349 N.W.2d at 833. 

Here, the affidavit supplies information that could lead to the inference that appellant kept a supply of drugs, or evidence of his drug dealing, in his home, as there is no mention of an alternate address, and the informant stated he had seen appellant "several times with large amounts of cocaine."  The affidavit also states that the informant would telephone appellant at home to set up his cocaine purchases.  Officer Youngquist corroborated this information by conducting a "reverse" on the telephone number given to him by the informant.  Youngquist also independently confirmed that appellant lived at the address given to him by the informant.  Accordingly, the affidavit established a sufficient link between appellant's home and his alleged drug-dealing.

C.        Totality of the circumstances

            As stated above, the elements contributing to a determination of probable cause must not be parsed out, but considered together.  McCloskey, 453 N.W.2d at 703.  The test that must be applied here is one of the "totality of the circumstances."  Wiley, 366 N.W.2d at 268.  In addition to the information provided by the confidential informant discussed above, the fact that appellant had previously been in trouble with the law also has probative value in the totality-of-circumstances test.  McCloskey, 453 N.W.2d at 704 (citing United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2081 (1971)). 

A district court issuing a warrant "is entitled to draw common-sense and reasonable inferences from the facts and circumstances given," State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985) (citation omitted), review denied (Minn. Sept. 19, 1985), and "[t]he resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants," McCloskey, 453 N.W.2d at 704 (quotation omitted).  Accordingly, we find that, while appellant's claims of insufficiency may seem valid, if viewed separately, the affidavit as a whole satisfies a totality-of-circumstances test.  This case, while close, is decided in favor of the warrant.  See Souto, 578 N.W.2d at 747. 

II.  Nighttime No-Knock Warrant

            Appellant next challenges the authorization for an unannounced, nighttime search of his home, arguing that the warrant application did not demonstrate any need for such a search.  A no-knock warrant is properly granted when (1) police "have reason to believe that an unannounced entry will be required in order to successfully and safely execute the warrant"; (2) police "inform the issuing magistrate of the circumstances which they believe justify the unannounced entry"; (3) police obtain advance authorization for the unannounced entry; and (4) police show that an entry that is announced "will result in the destruction of evidence or in danger to the officers executing the warrant."  State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978).

            When the material facts are undisputed, this court determines independently whether evidence obtained during a search conducted with a no-knock warrant should be suppressed.  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 1990).  Generally, this court reviews the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  But when we review the determination that an unannounced entry is warranted, the standard of review is not probable cause, but reasonable suspicion.  Wasson, 615 N.W.2d at 320.  The Supreme Court of the United States has stated that this showing "is not high."  Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1422 (1997).

Here, appellant argues that the warrant application contained no specific allegations that would lead to a reasonable belief that evidence would be destroyed if the police announced their search or that the police would be met with violence.  But the affidavit supporting the application for a no-knock warrant did contain information that (1) a confidential informant had knowledge that appellant was engaged in drug sales; (2) appellant was involved in a gang; and (3) appellant had a criminal history which included drug possession and making terroristic threats.  This information, taken as a whole, is "not overwhelming."  Law enforcement and the prosecutors are cautioned to make the supporting affidavits as strong and as fact intensive as the record will permit, and to avoid boilerplate conclusory statements.  We do conclude the information in this case is sufficient to sustain the no-knock warrant, given the deference we show the district court. 

Appellant also argues for the first time on appeal that police should have reassessed the need for an unannounced entry at the scene.  Appellant did not argue this below; we do not address it on appeal.  State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989).

III.  Sufficiency of the Evidence

            Appellant argues that the evidence supporting his conviction was insufficient as a matter of law to prove him guilty beyond a reasonable doubt.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  And this is especially true when resolution of the matter depends on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            While appellant argues that the jury should not have convicted him of constructive possession of a handgun on the record below, the facts are otherwise.  Appellant admitted on the stand that he told Officer Youngquist his prints might be on the gun found in his room.  Appellant agreed that the handgun had been stored underneath the bed in his bedroom.  Appellant's argument hinges on the believability of his story that he found the gun the night before and "left the house" as soon as he realized it was there.  It is apparent the jury did not believe this story in its entirety.  Appellant's credibility was a pure judgment call for the jury.  Based on appellant's testimony on the witness stand, a jury could reasonably conclude that he was guilty of the offense charged.  Accordingly, we affirm this count.

IV.  Double Jeopardy

            Finally, appellant argues that the district court erred in sentencing him on both  firearms charges.  We agree.  Minnesota's statutory double jeopardy protection precludes multiple sentencing for conduct that is part of a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2002).  Whether multiple offenses arise out of a single behavioral incident depends on the particular facts and circumstances of the case.  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2001), review denied (Minn. Jan. 16, 2001).  The analysis focuses on whether the conduct occurred at the same time and place and whether there was a singular criminal objective.  Id.

            Here, by defining the main element of the serial number removal charge, Minn. Stat. § 609.667, subd. 2, as follows:  "the Defendant received or possessed a firearm on which the serial number or other identification was obliterated, removed, changed or altered," the district court asked the jury only to determine whether appellant possessed the gun for both charges.  Thus, both charges stem from a singular behavioral incident, namely, appellant's possession of the handgun.  The state, with professional candor, which we appreciate, concedes that appellant's concurrent sentence of 13 months for removal of the firearm's serial number should be vacated.  Accordingly, we vacate appellant's concurrent sentence of 13 months. 

Affirmed in part and vacated in part.