State of Minnesota, Respondent, vs. Bryan Michael Timm, Appellant.

State of Minnesota, Respondent, vs. Bryan Michael Timm, Appellant. A05-1718, Court of Appeals Unpublished, July 11, 2006.

This opinion will be unpublished and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

A05-1718

 

State of Minnesota,
Respondent,
 
vs.
 
Bryan Michael Timm,
Appellant.

 

Filed July 11, 2006

Affirmed

Stoneburner, Judge

 

Dakota County District Court

File No. K6042650

 

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

 

James C. Backstrom, Dakota County Attorney, Nicole L. Fredricks, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

 

Jonathan M. Peck, Howard Bass, Bass & Peck, PLLC, 14101 Southcross Drive West, Suite 100, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of a fifth-degree controlled-substance offense, arguing that the warrant to search his person, residence, and vehicle was not supported by probable cause.  Because of the deference accorded to warrants, we affirm.

FACTS

 

            Lakeville Police Investigator Mark Holden applied for a warrant to search appellant's person, residence, and the vehicle he used.  Holden stated in the affidavit supporting the warrant application that within 24 hours before the application, he had received information from a known confidential reliable informant (CRI).  Holden stated that the CRI advised him "that [the CRI] knew Timm . . . that [Timm] lives at [a specified address]; and that [Timm] is in possession of cocaine."  Holden stated that the CRI also advised him that "[Timm] would drive around in a green Cadillac and distribute the narcotics."  Holden further stated that an examination of trash from the address specified by the CRI verified that Timm lived with his mother and father at that address, and a check of city records revealed that 12 days before the application, Timm had been stopped driving a green Cadillac registered to Timm's parents and was found to be in possession of about 77.5 grams of marijuana.  Holden stated that within weeks of the application, he had worked "on a detail where another CRI has attempted to purchase narcotics from [Timm] and that Timm would be driving a Green colored Cadillac, however, [Timm] did not wish to travel into the Burnsville area."  Holden stated that Dakota County Drug Task Force Agent Mark Hetherington was present when this CRI was speaking with Timm and that "the narcotic transactions were being set up however, [Timm] did not follow through."  Holden stated that agent Hetherington verified that the number called by this CRI to arrange the transactions was Timm's cell phone number. 

            A warrant was issued, and the executing officers, including Holden, seized 2.65 grams of cocaine and drug paraphernalia from Timm's car and $626 cash and additional drug paraphernalia from Timm's residence.  Timm was charged with a fifth-degree controlled-substance crime.  The district court denied Timm's motion to suppress evidence obtained from the searches conducted pursuant to the warrant, and Timm submitted the case to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty and stayed imposition of sentence.  This appeal followed.

D E C I S I O N

 

            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, 787-88 (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).  "A magistrate's determination of probable cause should be paid great deference by reviewing courts and a reviewing court should not review that determination de novo."  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).  "In reviewing the sufficiency of an affidavit under the totality of the circumstances test, courts must be careful not to review each component of the affidavit in isolation," because "[e]ven if each component is judged unsubstantial, the components viewed together may reveal in the informant's tip an internal coherence that gives weight to the whole."  Id.(quotation omitted).  "[T]he resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded warrants.'" Id.(quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)).

            Appellant, Michael Timm, argues that in this case the warrant application was deficient because it (1) did not specify the basis of an informant's purported knowledge or when the informant obtained the knowledge; (2) did not establish a nexus between the alleged crime and the places to be searched; (3) did not contain sufficient corroboration of the informant's tip to establish reliability of the tip; and (4) contained information that dispelled any suspicion about Timm's involvement with drugs.

            In determining probable cause, the issuing court must consider the "veracity" and "basis of knowledge" of persons supplying the information as relevant considerations in the totality-of-the-circumstances analysis.  Illinois v. Gates, 462 U.S. 213, 233, 238, 103 S. Ct. 2317, 2329, 2332 (1983).  In this case, the reliability of the CRI is established by information in the warrant application stating that the CRI has provided reliable information in the past.  See State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004) (listing as one of the factors used to determine the reliability of a CRI the fact that the CRI has given reliable information in the past). 

            But Timm correctly points out that the application does not provide any information about how the CRI obtained information that Timm "is in possession of cocaine" and does not state when the CRI obtained that knowledge.  The district court's determination that the CRI saw Timm in possession of cocaine within 24 hours before the application is without support in the application and is clearly erroneous.  And Holden's statement that the CRI gave him the tip within 24 hours before the application is insufficient to lead to an inference that the CRI's information was recent.  The only temporal indication contained in the CRI's report to Holden is the use of the present tense in the CRI's report that "[Timm] is in possession of cocaine." 

            Timm relies on United States v. Kennedy, 427 F.3d 1136 (8th Cir. 2005), filed after the issuance of the warrant in this case, for the proposition that use of the present tense is insufficient to establish the recency of an informant's information.  In Kennedy, the federal district court rejected the argument that an informant's use of the present tense was sufficient to establish probable cause for officers to conclude that drugs were currently hidden in Kennedy's vehicle, stating:

[a]lthough an informant's use of the present tense is some indication of present probable cause, the ultimate determination does not turn solely upon whether the verbs used by the hearsay informant end in "s" or "ed."  Rather, the question of whether information of an indeterminate recency establishes probable cause that contraband or evidence of a crime will be found in a particular location at a particular time "depends on the circumstances of the case," including the crime under investigation and the property sought in the search.

 

Id.at 1141-42 (citations omitted).  But Kennedy involved a warrantless search without any corroboration of the tip, which came from Kennedy's ex-girlfriend, who had a motive to harm Kennedy.  Id. 

            In Timm's case, the application reveals the involvement of two CRIs who both implicate Timm in ongoing drug distribution from a green Cadillac, and the fact that Timm was found with a felony-level amount of a controlled substance in a green Cadillac 12 days before the application for the warrant.  The CRI's use of the present tense is therefore not the only indication that the CRI's information was not stale.

            Timm argues that the district court also erred by concluding that the CRI's reliability made the basis of his knowledge for the current tip irrelevant.  "Recitation of facts establishing a CRI's reliability by his proven ‘track record,' . . . does not by itself establish probable cause."  State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) (citing 2 Wayne R. LaFave, Search and Seizure § 3.3(b) at 121 (3d ed. 1996).  But a CRI's basis of knowledge "may also be supplied indirectly through self-verifying details that allow an inference that the information was gained in a reliable way and is not merely based on a suspect's general reputation or on a casual rumor circulating in the criminal underworld."  Id.  "Assessment of the CRI's basis of knowledge involves consideration of the quantity and quality of detail in the CRI's report and whether police independently verified important details of the informant's report."  Id.  The quantity and quality of detail in the CRI's report do not provide a basis of the CRI's tip, and information corroborating the CRI's tip in this case is thin, consisting of Holden's knowledge of a prior failed attempt to engage Timm in a controlled buy, verification of the CRI's information about where Timm was residing and what car he was using, and information that Timm had, within 12 days, possessed a felony amount of marijuana in the car.  We have previously held that corroboration of easily obtained facts and conditions, such as verification of an address and ownership of a vehicle, by themselves are inadequate to support a finding of probable cause.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  We note that Albrecht is marginally distinguishable because Timm was using a vehicle that was not registered to him and was living in a residence that he did not own or rent.  We disagree with Timm's assertion that the fact that he did not follow through with the attempted controlled buy dispels any inference that he was a drug dealer.  Although the information was not artfully presented, the implication was that a CRI calling Timm's cell phone was arranging to buy narcotics that Timm would distribute from a green Cadillac, but the transaction did not occur because Timm would not come to the Burnsville area.  Nor do we find that the absence of evidence in the trash from Timm's residence of drug possession or dealing is sufficient to dispel any inference that Timm was a drug dealer.  The facts in this case make the determination somewhat doubtful, but we conclude that there is sufficient information in the warrant application to cause us to resolve the doubt by according deference to the warrant.

            Timm also argues that the application failed to establish a nexus between the alleged crime and Timm's residence, but the nexus was established by Holden's recited training and past experience that drug dealers frequently store controlled substances or proceeds from sales at their residences.  "Among the factors considered in determining whether there is a sufficient showing of probable cause to believe that items will be found in a particular place are the type of crime, the nature of the items sought, the extent of the suspect's opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items."  State v. Harris,589 N.W.2d 782, 788 (Minn. 1999) (quoting State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984).  We have previously held that it is reasonable to infer that people suspected of selling drugs store their supply in their houses.  State v. Bynum, 579 N.W.2d 485, 487 (Minn. App. 1998) (finding that the district court reasonably inferred that Bynum, who allegedly sold drugs from his automobile, kept a supply of drugs and proceeds from sales at his residence).

            Timm cites State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996), for the proposition that "[m]ore than mere possession of an ounce of cocaine is required to demonstrate probable cause that an individual is a dealer and that his home contains evidence or contraband."  But this case is distinguishable.  Holden did not infer that Timm is a dealer merely based on the tip that he possessed cocaine or on his having recently possessed 77.5 grams of marijuana in his car.  Holden also relied on information from two CRI's implying that Timm was involved in dealing on an ongoing basis.  Furthermore, the cocaine Timm sought to suppress was found in the green Cadillac and the application clearly established a nexus between Timm's alleged criminal activities and the Cadillac. 

            Timm argues that his marijuana possession was too stale to be probative in this case.  In determining whether the information supporting a search warrant is stale, we consider (1) whether there is any indication of ongoing criminal activity; (2) whether the items sought are incriminating; (3) whether the property is easily disposable; and (4) whether the items sought are of enduring utility.  State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).  Because under the totality of the circumstances the information in the application provides probable cause that Timm was involved in ongoing criminal activity, we conclude that evidence of the marijuana possession was not so stale as to lose its probative value.  Based on the totality of the circumstances, the deference accorded to the issuing authority, and the deference accorded to warrants, we conclude that the district court did not err in denying Timm's motion to suppress.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.