State of Minnesota, Respondent, vs. Mitchell Ray Ferguson, Appellant.

State of Minnesota, Respondent, vs. Mitchell Ray Ferguson, Appellant. A04-929, Court of Appeals Unpublished, February 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004)

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-929

 

State of Minnesota,

Respondent,

 

vs.

 

Mitchell Ray Ferguson,

Appellant.

 

Filed February 15, 2005

Affirmed Randall, Judge

 

St. Louis County District Court

File No. K6-03-301373

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, 1810 - 12th Avenue East, Hibbing, MN 55746 (for respondent)

 

Matthew K Begeske, 301 West First Street, Duluth, MN 55802 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Mitchell Ray Ferguson challenges his convictions of possession of a firearm by a felon and possession of methamphetamine in the fifth degree on the ground that the state made intentional or reckless omissions of material fact in its search-warrant application.  We find the district court did not err in upholding the issuing magistrate's determination of probable cause to issue the warrant.  We affirm.

FACTS

Between September 20 and October 4, 2002, Hibbing law enforcement acquired incriminating information regarding appellant Mitchell Ray Ferguson from informant Trisha Carlson.  The information related to Ferguson's alleged involvement with methamphetamine and weapons.  On September 20, 2002, law enforcement conducted an extensive interview of Carlson, during which she made some unusual claims and inaccurate statements.  Some of the more obvious examples included statements that her ex-father-in-law "busted out of Leavenworth" and was "third in line in the Mexican mafia" and that her sister-in-law, who "works for the Supreme Court of Minnesota, . . . stopped my divorce six times" and apparently conspired to poison Carlson.

On October 4, 2002, law enforcement applied for and received a search warrant based on first- and second-hand information officers had received from Carlson, as well as information they had gathered from other internal sources.  The warrant application incorporated those statements of Carlson that linked her to Ferguson.  The application stated, among other things, that Carlson's boyfriend and Ferguson made arrangements to remove some broken-down vehicles from Carlson's property; that upon arrival to pick up the vehicles, Ferguson introduced himself to Carlson as "Mitch" and asked her to get high; and that since meeting Ferguson, her boyfriend has been "able to obtain methamphetamine directly from him."

The application also stated that while at Ferguson's residence on a later date, Carlson noticed an eye-washing bin, red phosphorous, muriatic acid, and four 100-pound cylinders in Ferguson's garage; that while at Ferguson's residence, she saw surveillance cameras and motion detectors and saw Ferguson "in possession of at least one assault style gun and one high powered rifle"; that while at Ferguson's residence on another occasion, Ferguson and another man named "Bucko" arranged to obtain meth-lab chemicals from Bucko's father's auto-body shop; that on yet another occasion, Ferguson would not admit Carlson into his house and that "she could smell a very strong odor like rubbing alcohol" coming from inside the house.

The application further stated that Carlson agreed to sell Ferguson four 100-pound propane tanks for $100 each; that Ferguson asked Carlson if she was "willing to go to health stores to buy a chemical, which [she] knew is used to cut methamphetamine"; that Ferguson asked Carlson if she could obtain "Acetylene tanks for him"; and that Carlson and her boyfriend agreed to drive to White Bear Lake to pick up a box of "psuedoephedrine pills, industrial style filters, other unknown pills, and glass jars" for Ferguson.

 Finally, the application stated that Carlson told police that she and her boyfriend were going to Ferguson's residence in an "older rust brown Chevrolet Blazer"; that officers then observed Carlson and her boyfriend pull the Blazer into Ferguson's driveway, pull back out, and then pull into Ferguson's mother's residence a couple of hundred yards away; that while Carlson was at Ferguson's mother's residence, she had noticed a "Chevrolet S-10 pick-up which had a tarp over it" among some junked vehicles on the property "and that it appeared that there may be large [propane] tanks under the tarp"; that Ferguson did not want Carlson to go near the truck; and that he "gave her very specific instructions on how to leave" the property.

The application also incorporated information that law enforcement gathered from internal sources corroborating Carlson's statements.  The application stated, among other things, that through prior contact with Ferguson, the officers knew where Ferguson lived and that he had been charged with illegal-weapons possession as a result of a search of Ferguson's mother's residence where Ferguson had been living while his mother was in a nursing home; that Ferguson has a criminal history regarding controlled-substance crimes; that Ferguson works on junked vehicles at his mother's residence and that he has unrestricted access to the property and its out-buildings; that "Bucko's" real name is Cary Kujula; that Kujula's father runs an auto-body shop; and that Kujula also has a criminal history regarding controlled-substance crimes. 

On October 5, 2002, law enforcement executed the search warrant at Ferguson's residence in Cook, Minnesota.  Among other things, officers found a zip-lock baggie containing methamphetamine, two .357 magnum pistols with ammunition, and various methamphetamine paraphernalia.  On October 7, 2002, the state charged Ferguson with possession of a firearm by a felon and possession of methamphetamine in the fifth degree. 

At a contested omnibus hearing on March 28, 2003, Ferguson argued that Carlson's information was neither credible nor corroborated.  He argued that law enforcement went to the magistrate with selective portions of Carlson's statement, omitting those items that were likely to cast doubt on her credibility.  The district court upheld the search warrant, viewing Ferguson's challenge "not as one specifically regarding a credibility determination, but as one suggesting that the omission of the informant's statements was a material or reckless misrepresentation which makes the warrant void."  The court acknowledged that Carlson had made some "unusual statements," which should be "approached with a sense of caution," but concluded that, under the totality of the circumstances, the statements were not material to the issuing magistrate's determination of probable cause.  In December 2003, the court convicted Ferguson of the crimes with which he was charged, and this appeal followed.

D E C I S I O N

Generally, we will affirm a magistrate's decision to issue a search warrant if there is a substantial basis to conclude that the warrant application met the requirement of probable cause.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  Here, substantial basis means a "fair probability," in light of the totality of the circumstances, "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). 

When a defendant has challenged the validity of a search warrant on issues of material misrepresentation or omission, it is the duty of the district court to make findings regarding whether such a misrepresentation or omission exists.  State v. Randa, 342 N.W.2d 341, 343 (Minn. 1984) (citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), for the proposition that the trial court must first establish material omission before determining whether, in light of such omission, probable cause still exists).  If the court finds that facts material to the probable-cause determination were either intentionally or recklessly omitted from the application, its analysis of the application must then incorporate the omitted facts to determine whether, under the totality of the circumstances, probable cause still exists.  State v. Akers, 636 N.W.2d 841, 843 (Minn. App. 2001).  When considering an application under the totality of the circumstances, courts do not isolate the separate components of the application, but view all componentssubstantial and unsubstantial aliketogether to determine whether, as a whole, the application merits a finding of probable cause.  State v. Wiley,366 N.W.2d 265, 268 (Minn. 1985).  We review a district court's findings with respect to a material omission under the clearly erroneous standard.  Randa, 342 N.W.2d at 343. 

Ferguson argues that law enforcement intentionally or recklessly omitted from its warrant application certain "paranoid" and "delusional" statements made by Carlson in her September 20 interview with law enforcement.  He argues that but for the omissions, the magistrate would not have made a probable-cause determination.  The district court found that Carlson did, in fact, make "certain undeniably questionable claims" and statements that "were not completely accurate."  The court also noted that such information was "not included in [the] warrant affidavit."  But the court nevertheless determined, taking into account Carlson's unusual statements, that such statements "were not, in the end, material to the determination of probable cause."  The court concluded that Carlson's "repeated cooperation" with law enforcement between September 20 and October 4, 2002, outweighed any detrimental effect the statements may have had on Carlson's credibility.  When an informant relates detailed first-hand information, which is supported by additional police information previously obtained, there exists sufficient verification to support the issuance of the warrant.  State v. Wiley, 295 Minn. 411, 416, 205 N.W.2d 667, 672 (1973).

There is evidence in the application to support this finding.  There are a total of 17 pages of transcript from the September 20 interview, roughly four of which contain the unusual or inaccurate claims and statements at issue here.  Most of the interview (documented on the other 13 pages of transcript) provided law enforcement with valuable information regarding, among other things, Ferguson's alleged methamphetamine-related associations, his own use of methamphetamine, and his possession of weapons. 

In addition to the September 20 interview, Carlson supplied law enforcement with other valuable information regarding Ferguson's criminal conduct in conversations on September 23, 25, 26, and 30, and on October 1, 2, 3, and 4.  These conversations aided law enforcement in, among other things, their surveillance and identification of Ferguson's and his mother's property, and their identification and corroboration of others known to be involved in controlled-substance activity with whom Ferguson was allegedly associating.  

With regard to Carlson's credibility, respondent points out that the information provided by Carlson was not the only information used to support the warrant application.  Law enforcement included information gathered from internal sources relating to Ferguson's pending charges regarding firearms possession, his use of his mother's residence and property, his criminal history regarding controlled substances, the criminal history of other persons regarding controlled substances with whom Ferguson was allegedly associating, and general training information regarding the use and production of methamphetamine. 

  The law concerning the validity of search warrants requires a fair probability that the warrant lead to evidence of a defendant's criminal conduct.  Here, there is evidence to suggest that the application, when viewed in its entirety, reasonably leads to a probability that methamphetamine, methamphetamine-related materials, and weapons would be found on Ferguson's property.  We note that it would "not have been inappropriate" for law enforcement to include all of Carlson's statements in the application.  The omission of those statements of hers, which ranged from delusional to "moonstruck," cannot be called an accident.  The application would have been complete if law enforcement had taken the bad with the good.  Having said that, for all the reasons expressed above, regardless of Carlson's questionable claims and fantasies, the district court did not err by upholding the issuing magistrate's search warrant.   

Affirmed.