State of Minnesota, Respondent, vs. Jeffrey Christopher Wettergren, Appellant.

State of Minnesota, Respondent, vs. Jeffrey Christopher Wettergren, Appellant. A04-1718, Court of Appeals Unpublished, August 2, 2005.

This opinion will be unpublished and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

A04-1718 State of Minnesota,
Respondent,

vs.

Jeffrey Christopher Wettergren
Appellant.

 

Filed August 2, 2005

Affirmed

Stoneburner, Judge

 

LeSueur County District Court

File No. K3036

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Brent J. Christian, Le Sueur County Attorney, 65 South Park Avenue, Box 156,  Le Center, MN 56057 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant argues that the district court erred by denying his motion to suppress evidence found during a search of his home on the grounds that the affidavit supporting the search warrant was based on dated and unreliable information; and that the affidavit did not establish that criminal activity was occurring at appellant's residence.  Appellant also argues that he was denied a fair trial because the district court described the Lothenbach trial as a proceeding that would result in a finding of guilty.  Because the information in the warrant application was sufficiently fresh and reliable and because it established a nexus with the residence searched, we affirm the district court's denial of the motion to suppress.  And because the district court did not mischaracterize the nature of the trial, we find no merit in the assertion that appellant's trial was not fair.

FACTS

 

            The affidavit supporting the application for a warrant to search appellant's residence, which he shared with Bruce Traxler and Debra Kelly, for items related to the manufacture of methamphetamine asserted the following grounds for issuance of a search warrant:

1.                  The affiant is experienced in drug investigations;

2.                  A van driven by Debra Kelly, who lives at the subject residence with appellant, her child, and Traxler, was stopped two days before the date of the affidavit for going through a stop sign.  Because Kelly's driver's license was cancelled as inimical to public safety, she was arrested, and the van was impounded.  Kelly advised the arresting officer that there were groceries in the van and asked if she could have the groceries.  The arresting officer took the groceries to the subject residence and gave them to appellant.  The officer noticed that the groceries included a one-gallon container of distilled water, a one-gallon container of spring water and two bottles of Heet, ingredients in the manufacture of methamphetamine;

3.                  During an impound inventory search of the van, the officer located items he suspected were related to the manufacture of methamphetamine including a blue cooler with Traxler's name on it and an odor of ammonia coming from it; a bottle of Heet; two one-gallon jugs of distilled water, a glass, pint-sized jar with an odor of ammonia, bottle of hydrogen peroxide, two one-gallon cans of Coleman (white) gas, and a kitchen basting tool;

4.                  Affiant was aware that another investigator had received information from various informants that indicated methamphetamine drug activity was taking place at the subject residence, and that investigator observed the van driven by Kelly parked at the Traxler residence for an extended period of time;

5.                  Affiant was aware that on 12/14/02 Officer Sherburne had contact with Bruce Traxler, who was in a car driven by Christine Lynn Mayer.  Methamphetamine was located in the car;

6.                  Affiant knew that a neighbor reported to Officer Sherburne that a large amount of traffic is observed at times at the subject residence especially on weekends and during late evening hours;

7.                  Affiant knew that in past several months people associated with Traxler and/or the residence have been arrested for controlled substance crimes or associated with controlled substances, including appellant, Jodi Essmay and Daniel Pearson.

 

            Based on this affidavit, the district court issued a search warrant, and officers executed the warrant, discovering evidence of methamphetamine manufacture at the subject residence.  The state charged appellant with two counts of controlled-substance crime and one count of child endangerment.  Appellant moved to suppress the evidence on the ground that the warrant was not supported by probable cause.  The district court denied the motion.  Appellant waived his right to a jury trial and submitted the case to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty of all counts and sentenced him accordingly.  This appeal challenging probable cause for issuance of the warrant followed.

D E C I S I O N

 

I.

We review 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, 788 (Minn. 1999).  Substantial basis in this context means a "fair probability," given 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) (quotation omitted).  When considering an application under the totality-of-the-circumstances standard, courts do not isolate the separate components of the application but view all components together 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).  The court gives great deference to the issuing court's determination of probable cause.  Id.   We resolve marginal cases in favor of issuance of the warrant.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).

            Appellant challenges the finding of probable cause, arguing that the information in the application was dated and unreliable and that it did not establish a sufficient nexus with his residence to support a search of the residence.  We disagree. 

            Generally, evidence is not stale when there is "proof . . . of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."  State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (quotation omitted).  There are no arbitrary time limits in obtaining a search warrant or in establishing a concrete formula for making these determinations.  State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan 14, 1985).  The approach is one of flexibility and common sense, and courts make these determinations on a case-by-case basis.  Id.

            In this case, only two days prior to the warrant application, Debra Kelly was lawfully stopped while driving a van that another officer had observed parked at the subject residence for an extended period of time.  Kelly confirmed that she lived at the residence with her boyfriend "Jeff."  Kelly had recently purchased some groceries that she planned to bring to the residence, including items identified in the affidavit as being related to the manufacture of methamphetamine.  The groceries were delivered to "Jeff" (appellant) at the subject residence by the officer who arrested Kelly.  During an inventory search of the van, officers discovered additional items associated with methamphetamine manufacture.  The cooler that the officers found in the van was associated with Traxler, who also lived at the subject residence.  All of this information was fresh, came from reliable persons (Kelly and the arresting officer), and provided a nexus with suspected methamphetamine manufacture and the residence.  The additional information that people associated with the residence were also associated with controlled substances and that traffic at the residence was consistent with ongoing drug-related activity at the residence, while not as fresh, also supported the application.  We conclude that all the information supporting the search-warrant application was sufficiently fresh and showed a nexus with the subject residence.

            Appellant asserts that even if the information in the warrant application was sufficiently fresh, it was not reliable because no information was provided about the various informants mentioned in the application.  But a "lack of information as to informant reliability is not fatal where . . . there is other corroborative evidence sufficient to establish credibility."  State v. Eling, 355 N.W.2d 286, 291 (Minn. 1984).  In this case, much of the supporting information did not come from informants but from the contents of the van, from Kelly, and from law-enforcement officers.  We conclude that the information was sufficiently reliable despite the lack of detail about informants.  Under the totality of the circumstances, the district court did not err by concluding that the warrant was based on probable cause and denying appellant's motion to suppress.

II.

            At the omnibus hearing, the district court informed appellant more than once that if the case was submitted to the court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), the district court would find him guilty.  Appellant now argues that because of these statements he was denied a fair trial.  Appellant's failure to object to the statements when they were made constitutes a waiver of his right to have this issue considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  Furthermore, appellant's claim is without merit.  The whole point of a Lothenbach proceeding is to avoid putting the parties to the expense of a trial and preserving his pretrial claims for appeal when pretrial rulings substantially diminish a defendant's likelihood of success in the district court.[1]  296 N.W.2d at 857-58.  The district court was not demonstrating bias but was merely referring to a procedural reality when it explained to appellant that if the case was submitted on the state's evidence under Lothenbach, he would be found guilty. 

            Affirmed.

[1] If appellant wanted to preserve for appeal any issue other than the district court's denial of his motion to suppress, he could have proceeded to trial, or he could have submitted the case for trial to the district court on stipulated facts under Minn. R. Crim. P. 26.01, subd. 3, which provides that "if the defendant is found guilty . . . [he] may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court."