State of Minnesota, Respondent, vs. Duane Michael Braunworth, Appellant.

State of Minnesota, Respondent, vs. Duane Michael Braunworth, Appellant. A04-1870, Court of Appeals Unpublished, May 31, 2005.

This opinion will be unpublished and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

A04-1870

 

 

State of Minnesota,

Respondent,

 

vs.

 

Duane Michael Braunworth,

Appellant.

 

 

Filed May 31, 2005

Affirmed

Halbrooks, Judge

 

 

Scott County District Court

File No. 2003-06739

 

 

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

 

Patrick J. Ciliberto, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Government Center JC340, 200 West 4th Avenue, Shakopee, MN 55379 (for respondent)

 

Pamela M. Cecchini, 15120 Cimarron Way, Rosemount, MN 55068 (for appellant)

 

 

            Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Duane Michael Braunworth challenges his conviction of fifth-degree possession of a controlled substance.  Appellant contends that the district court (1) erred by finding that the search warrant was supported by probable cause, (2) abused its discretion by denying his request for a continuance of the omnibus hearing, and (3) erred by denying his request to order the state to disclose the identity of a confidential informant or to conduct an in camera review with the individual.  Because we conclude that the district court did not err in finding that the search warrant was supported by probable cause or by refusing to order disclosure of the informant's identity or conduct an in camera review, and because the district court did not abuse its discretion by denying appellant's request for a continuance, we affirm.

FACTS

            On September 3, 2002, Officer Cory Skorczewski of the Shakopee Police Department filed a search-warrant application to search appellant's home for controlled substances.  The district court issued the warrant, finding that Officer Skorczewski's affidavit established probable cause to believe that controlled substances would be found in appellant's home.  Officers executed the search warrant the same day and recovered 14.5 grams of methamphetamine from appellant's home.  Appellant pleaded guilty to second-degree possession of a controlled substance.

            On March 14, 2003, Officer Skorczewski applied for another search warrant to search appellant's home for controlled substances.  The affidavit Officer Skorczewski filed supporting that search-warrant application was almost identical to the affidavit that he filed in September 2002.  The date on the signature page was even September 3, 2002, which the issuing district court judge crossed out and replaced with the correct date.  The 2003 affidavit included four paragraphs that were not included in the 2002 affidavit.  The first new paragraph explained what the police found during the September 2002 search.  The other paragraphs stated:

                        On 12-10-02 [Skorczewski] received information from a Concerned Citizen who states that [appellant] is selling methamphetamine and marijuana from his residence.  The CC states he has short-term traffic to and from his address.

 

                        On 1-31-03 [Skorczewski] pulled curbside trash that was left for normal pickup.  While searching the garbage, [Skorczewski] discovered a green stem and a green leafy substance.  Both items field-tested positive for marijuana using a NIK test kit.  Also, [Skorczewski] found a [R]eliant [E]nergy gas bill, with the name of [appellant], at the above address.

 

                        A CRI [confidential, reliable informant] has informed [Skorczewski] that within the past 72 hours, the CRI was inside the residence located at 1605 Roundhouse Circle in the City of Shakopee, MN.  The CRI informed [Skorczewski] that the individual residing at 1605 Roundhouse Circle [was] in possession of methamphetamine.  The CRI visually observed the methamphetamine.

 

The district court granted Officer Skorczewski's 2003 application for a search warrant.  While executing the warrant, officers found a pen casing that tested positive for traces of methamphetamine.  Appellant was charged with fifth-degree possession of a controlled substance under Minn. Stat. § 152.025, subd. 2 (2002). 

            Appellant spoke to Officer Skorczewski, who said he would attend the omnibus hearing, and appellant subpoenaed the person he believed to be the confidential informant.  Because neither Officer Skorczewski nor the subpoenaed person appeared at the omnibus hearing, appellant requested a continuance.  In addition, he argued that the case should be dismissed because the information in the March 2003 affidavit was stale and did not support a finding of probable cause and that Officer Skorczewski recklessly or intentionally misrepresented the facts in the search-warrant application.  Appellant requested that the district court order the state to disclose the identity of the confidential informant, or in the alternative, question the confidential informant in an in camera hearing.  The district court denied all of appellant's requests, concluding that any misrepresentations in the affidavit were only negligent and that the information unique to the March 2003 affidavit established probable cause. 

            Appellant challenged the district court's order denying his motions.  On December 18, 2003, appellant voluntarily dismissed his first appeal and filed a petition for discretionary review with this court.  We denied appellant's petition.  State v. Braunworth, No. A03-1952 (Minn. App. Jan. 6, 2004) (order).

            On July 20, 2004, appellant entered a Lothenbach plea to the charge of fifth-degree possession of a controlled substance.  On July 26, 2004, appellant again challenged the district court's pretrial order denying his motions.  The state moved to dismiss the appeal as premature.  We dismissed the appeal because no final judgment had been entered by the district court.  State v. Braunworth, No. A04-1376 (Minn. App. Aug. 31, 2004) (order).  On September 13, 2004, the district court sentenced appellant for his convictions of second-degree and fifth-degree possession of a controlled substance.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the district court erred by finding that the March 2003 search warrant was supported by probable cause because the information provided in the warrant application was stale and contained intentional or reckless misrepresentations.  "A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched."  Minn. Stat. § 626.08 (2002).  In analyzing whether a search warrant is supported by probable cause, we give great deference to the issuing judge's finding of probable cause.  State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). 

We review the issuing judge's findings only to determine whether there was a substantial basis to support the conclusion that probable cause existed.  Id. at 788.  A substantial basis existed if, given the totality of the circumstances described in the affidavit examined by the issuing judge, including the veracity and source of knowledge of the people supplying hearsay information, "there was a fair probability that contraband or evidence of a crime would be found in a particular place."  State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004). 

            Vague and uncertain information in an affidavit is insufficient to establish probable cause.  State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985).  The affidavit must contain underlying facts that are sufficient to allow the issuing judge to draw his or her own conclusions as to whether probable cause exists.  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  The judge may make reasonable inferences, but the inferences must support more than a "mere suspicion."  Id.  An issuing judge "must be particularly attentive in a case . . . in which almost all of the information offered in support of the current warrant application is not new, and in fact was used to justify . . . previous, exhaustive searches of the same residence."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995).  In such a situation, the issuing judge must be particularly careful to separate the information used to support previous warrants from any new information that could support the current warrant application.  Id.

            If the application for a search warrant includes intentional or reckless misrepresentation of facts that are material to the finding of probable cause, the search warrant is void, and the fruits of the search must be suppressed.  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989).  To determine if a misrepresentation is material, we consider whether probable cause still exists to issue the search warrant if the misrepresentation is set aside.  Id.  If the misrepresentation is material, the district court must then determine whether the affiant deliberately or recklessly misrepresented facts; innocent or negligent misrepresentations do not invalidate a warrant.  Id.

            Appellant asserts that the March 2003 affidavit contained intentional or reckless misrepresentations because it was identical to the September 2002 affidavit but for four additional paragraphs.  The March 2003 affidavit contained obvious misrepresentations, as follows:

During the past month, the Scott County Sheriff's Office has received information that narcotics are being sold out of 1605 Roundhouse Circle, City of Shakopee, County of Scott.  This information has been verified by a CRI (Confidential Reliable Informant) who states that narcotics are in fact being sold at that location.

 

Within the past 72 hours, Your Affiant has learned from a CRI that an eight ball of methamphetamine has been observed inside 1605 Roundhouse Circle . . . .

 

(Emphasis added.)  Because these statements were included in the September 2002 affidavit, the information must have been gathered at least six months before March 2003, not "[d]uring the past month" or "within the past 72 hours."

To determine whether these misrepresentations are material, we must determine whether, if these allegations are set aside, the search warrant affidavit still supports a finding of probable cause.  Id.  The other information on which appellant relies are the four paragraphs unique to the March 2003 affidavit.

The first paragraph unique to the March 2003 affidavit states that in September 2002 officers executed a search warrant on appellant's home and found more than 14 grams of methamphetamine.  The second paragraph states that on December 10, 2002, "a Concerned Citizen" reported that appellant was selling drugs from his home and that the citizen had seen short-term traffic to and from appellant's home.  The third paragraph states that on January 31, 2003, Skorczewski searched garbage left at the curb of appellant's residence and found a green stem and a green leafy substance that tested positive for marijuana. 

Appellant argues that these three paragraphs contain stale information.  "[T]he proof must be 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) (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)).  For example, a single incident of criminal activity can support a probable-cause finding for only a few days at most.  Ward, 580 N.W.2d at 72.  The court must consider the circumstances of each case to determine the likelihood that the evidence sought is still in the same location.  Id.  Minnesota courts primarily consider "whether there is an indication of ongoing criminal activity and [ ] the nature of the items sought."  Id.

Here, there is an indication of ongoing criminal activity because the possible drug-related activity identified in the affidavit occurred over a period of several months.  But the nature of the items sought, drugs, is that they are likely to be used quickly and are easy to transport.  The indication of ongoing criminal activity suggests that drugs would likely be found in appellant's home, which would make the information in the affidavit relevant for a longer period of time.  But because drugs are not likely to remain in the same place for very long, one-month-old information could be considered stale.  These two factors do not lead to a clear result as to whether the information was stale.

But we also consider the fourth paragraph unique to the March 2003 affidavit, which states that within 72 hours of the search-warrant application a "confidential reliable informant" had been inside appellant's home and stated that appellant was in possession of methamphetamine.  Appellant argues that the information provided in the fourth paragraph is not credible and should not have been relied upon by the district court.

"[S]tatements from citizen witnesses, as opposed to criminal informants, may be presumed to be credible."  Harris, 589 N.W.2d at 789.  If the affidavit specifically states that the confidential informant is a first-time citizen informant who is not involved in a criminal activity, the informant previously has given correct information to the police, or the police can sufficiently corroborate the information supplied by the informant, the issuing judge may presume the informant is reliable.  Ward, 580 N.W.2d at 71.  If the police can corroborate minor details of the information supplied, the issuing judge can "lend credence" to the information.  Id.

Here, the search-warrant affidavit states that the informant has supplied information in the past that "has led to recovery of evidence and the arrest and charging of suspects."  Presumably, if information supplied in the past has led to the recovery of evidence, the information supplied in the past has been correct.  Because the issuing judge could view the informant as being reliable, the issuing judge could consider the information the informant provided in addition to the other new evidence presented in the affidavit.

While it is a close question, we conclude that, under the totality of the circumstances, the information provided in the affidavit as a whole is sufficient to establish probable cause.  The information provided within 72 hours by the confidential informant, plus the evidence that appellant has been involved in suspicious activity within the prior few months, provides a substantial basis to support the issuing judge's finding that probable cause existed.

The district court went on to determine that any misrepresentations in the March 2003 affidavit were negligent.  But because other information in the affidavit supports a finding of probable cause, we conclude that the misrepresentations are not material.  Therefore, we do not consider whether the misrepresentations were negligent or intentional.  See Moore, 438 N.W.2d at 105. 

II.

            The second issue is whether the district court abused its discretion by refusing to grant appellant's request for a continuance of the omnibus hearing.  The decision to grant or deny a request for a continuance is within the district court's discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  A conviction will be reversed for denial of a motion for continuance only when the denial is a clear abuse of discretion and the defendant has shown that he or she has been prejudiced.  Id.

            Appellant argues that a continuance should have been granted because Officer Skorczewski failed to appear for the omnibus hearing.  Before the hearing, appellant contacted the officer and requested that he attend the hearing, but appellant failed to subpoena him.  Appellant cites no authority and makes no argument as to how the district court abused its discretion by denying a continuance so that Officer Skorczewski could appear at the hearing.  We decline to reach issues that are not briefed adequately, and we will not address claims that are unsupported by legal analysis or citation.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 728 (Minn. 2005); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).

            Appellant also asserts that he was denied due process because the district court did not grant a continuance when appellant's subpoenaed witness failed to appear.  Appellant's subpoenaed witness was the person who appellant believed to be the confidential informant relied upon by the police.  The proper method for obtaining the testimony of a confidential informant is to seek in camera review of the informant or to move for disclosure of the informant's identity.  Moore, 438 N.W.2d at 106.  Here, the appellant never moved for an in camera hearing.  He, instead, proceeded to subpoena the person he believed to be the informant.  Therefore, the district court did not abuse its discretion by denying appellant's request for continuance on this basis.

III.

            We review the third issue of whether the district court erred in denying appellant's request to conduct an in camera review of the confidential informant or to disclose the identity of the individual on an abuse-of-discretion standard.  It is only in rare cases that a defendant's interest in discovering an informant's identity will outweigh the state's privilege in protecting an informant's identity.  Id.  Disclosure of an informant's identity is warranted if the defendant sufficiently challenges the veracity of the search-warrant affidavit "and disclosure is necessary to complete the evidentiary attack on the affidavit."  Id.  A defendant has a lesser burden to establish the basis for a court's inquiry in an in camera hearing.  Id.  To establish the necessity of an in camera hearing, the defendant must make a minimal showing of a basis for inquiry.  Id.  The defendant must show something more than mere speculation that examining the confidential informant might be helpful.  Id.

            Here, the district court determined that appellant did not make a minimal showing to provide a basis for an in camera inquiry or satisfy any of the factors to warrant disclosure of the informant's identity.  The only information appellant provided the district court about the confidential informant was his speculation that, although the informant reported seeing methamphetamine in appellant's house, appellant believed that the informant would testify that he or she had never been in appellant's house.  Because a defendant must provide more than "mere speculation" to establish the need for an in camera review, we determine that the district court did not abuse its discretion by denying appellant's request for an in camera review.  See id.; State v. Wessels, 424 N.W.2d 572, 575 (Minn. App. 1988), review denied (Minn. July 6, 1988).  Because appellant has not satisfied the lesser burden required to show a basis for an in camera hearing, we determine that appellant cannot meet the greater burden required to show that disclosure of the informant's identity is needed.  See Wessels, 424 N.W.2d at 575-76 (stating that the burden of establishing the need for an in camera hearing is less than the "ultimate burden" of establishing the need for disclosure).  Therefore, the district court did not abuse its discretion by denying appellant's request for disclosure of the informant's identity. 

            Affirmed.