State of Minnesota, Respondent, vs. Victor Alvarado Murillo, a/k/a Martin Camarilla, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Victor Alvarado Murillo,

a/k/a Martin Camarilla,

Appellant.

Filed ­­­December 12, 2000

Todd County District Court

File No. K3-99-191

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Gaylord A. Saetre, Todd County Attorney, Todd County Courthouse, Long Prairie, MN 56347 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.

HARTEN, Judge

Appellant challenges his conviction for conspiracy to commit a first-degree controlled substance crime.  Appellant also challenges that part of his sentence ordering him to reimburse the county interpreter fund.  Because we conclude that the search warrant for appellant's residence was supported by probable cause, but that the district court erred in ordering reimbursement of the county interpreter fund, we affirm in part and reverse in part.

FACTS

Deputy Sheriff Donald Burns applied for and received a warrant to search the residence of appellant Victor Alvarado Murillo (aka Martin Camarilla) for evidence of possession and/or sale of controlled substances.  The affidavit supporting the warrant application stated:  (1) that Burns met with a concerned citizen who informed him that there was an unusual amount of in-and-out traffic at Miguel Contreras's residence; (2) that Burns met with a confidential reliable informant, X129, who had previously provided timely and accurate information leading to arrests and convictions; (3) that X129 provided Burns with information regarding Jose Asencion Alvarado's and Miguel Contreras's trafficking in controlled substances, which Burns verified through local law enforcement records; (4) that Burns again spoke with the concerned citizen who stated that Alvarado and Contreras were currently in Mexico and that Contreras might not return because there was an active warrant for his arrest, which Burns verified through Todd County Sheriff's Department records; (5) that the concerned citizen stated that appellant was currently residing in Contreras's residence and that there was still some in-and-out traffic at the residence; (6) that during surveillance of the Contreras residence, Burns observed a vehicle registered to appellant; and (7) that Burns received a call from X129, who stated that s/he and others had gone to the Contreras residence, that X129 remained outside while the others entered the residence and purchased a quarter ounce of cocaine from appellant, that the others told X129 appellant was holding a lot of cocaine and methamphetamine and they were planning to purchase more, and that they displayed to X129 the quarter ounce they had purchased from appellant.

Law enforcement officers executed the search warrant at appellant's residence on February 2, 1999.  In the pockets of a pair of pants found in appellant's bedroom, officers discovered a bag containing 6.5 grams of powder containing cocaine and appellant's wallet containing $527 in cash.  Officers also found a leather pouch containing $7,910 in cash, a bundle of $235 in cash on top of the dresser in appellant's bedroom, paperwork identifying bank accounts in Mexico, an IOU purporting to convey a car to appellant as collateral for a $6,000 debt, several uncashed checks totaling over $5,000, a revolver and shells, a clip for an SKS assault rifle, an electronic gram scale, a finger gram scale, and an address book containing names of people suspected of drug trafficking.

Appellant was charged with two counts of conspiracy to commit a first-degree controlled substance crime while possessing firearms, those being conspiracy to distribute ten grams or more of mixtures containing cocaine, in violation of Minn. Stat. §§ 152.096, subd. 1 (1998), and 152.021, subd. 1(1) (1998), and conspiracy to distribute 50 grams or more of mixtures containing methamphetamine, in violation of Minn. Stat. §§ 152.096, subd. 1, and 152.021, subds. 1(1) and 1(3) (1998).  See Minn. Stat. § 609.11, subd. 5(a) (1998) (mandatory minimum sentence for offense committed while in possession of a firearm). 

At a contested omnibus hearing, appellant moved to suppress the evidence found in his residence, contending that the affidavit accompanying the warrant application did not provide sufficient probable cause, and to dismiss the charges for lack of probable cause.  The district court denied appellant's motions.  Following a bench trial, the district court found appellant guilty of conspiracy to sell cocaine but not guilty of conspiracy to sell methamphetamine.  Appellant was sentenced to 86 months in prison and was ordered to pay $150 to the Todd County Interpreter Fund.  This appeal followed.

D E C I S I O N

1.         Probable Cause For Search Warrant

We review the district court's determination that the search warrant application furnished a substantial basis to conclude that probable cause to search existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  "[S]ubstantial 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) (citation omitted).  A reviewing court should give great deference to a magistrate's determination of probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)).  Under the "totality-of-the-circumstances" test,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S. Ct. at 2332.  "Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information."  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  In reviewing the sufficiency of an affidavit under the totality-of-the-circumstances test, courts must be careful to avoid reviewing in isolation each component of the affidavit.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  "[T]he resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants.'"  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)).    

Appellant argues that the factual allegations contained in the police affidavit supporting the warrant application were insufficient to support a finding of probable cause because X129's information was based only on what others said they did at appellant's residence and on X129's observation of them after they left the residence.  But X129 was not required to go into the residence to have a basis of knowledge of appellant's drug trafficking.  See State v. Reese, 446 N.W.2d 173, 177 (Minn. App. 1989) (upholding search warrant based on information provided by person known in community as chronic alcoholic who viewed two acquaintances enter the house and, upon leaving, appear "zipped or zapped," and who demonstrated personal knowledge by correctly identifying the resident of the house), review denied (Minn. Nov. 15, 1989).  X129, like the informant in Reese, personally observed incriminating conduct.  X129 watched companions enter appellant's residence and, after they emerged from the residence, heard them say that they purchased cocaine from appellant, that appellant was holding a lot of cocaine and methamphetamine, and that appellant was going to sell them more drugs.  X129 saw the quarter ounce of cocaine they said they had just purchased from appellant.  Like the informant in Reese, X129 correctly identified appellant as the resident of the house.

            Appellant relies on State v. Cook, 610 N.W.2d 664 (Minn. App. 2000), but Cook is distinguishable.  The informant's tip in Cook "fail[ed] to offer any explanation for the basis of the [confidential reliable informant's] claim that Cook was selling drugs," and no warrant had been issued.  Id. at 668.  In the instant case, X129 watched companions enter appellant's residence and return with cocaine, saying that appellant sold it to them and had more.  Moreover, unlike Cook, here the police obtained a search warrant.   

            While the factors of reliability and the basis of knowledge are relevant considerations in a totality of the circumstances analysis, a deficiency in one can be compensated for by a strong showing as to the other, or by some other indicia of reliability.  Gates, 462 U.S. at 233, 103 S. Ct. at 2329.  Appellant acknowledges that X129's veracity was established because s/he previously had given timely and accurate information to the police that resulted in arrests and convictions.  See State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) ("Having a proven track record is one of the primary indicia of an informant's veracity." (citation omitted)).  Other factors supporting X129's reliability include: (1) the police corroborated information that X129 provided; (2) X129 met in person with the affiant on one occasion and initiated contact with the affiant on the second occasion; and (3) a concerned citizen provided information that further corroborated X129's information.  Considering the totality of the information in the supporting affidavit, we conclude that there was a substantial basis for the magistrate to find probable cause.

2.         County Interpreter Fund

The district court ordered appellant to pay $150 to the Todd County Interpreter Fund.  The parties agree that this was reversible error.  See Minn. Stat. § 611.33, subd. 3 (Supp. 1999) ("The fees and expenses [of a qualified interpreter] must be paid by the state courts."); State v. Lopez-Solis, 589 N.W.2d 290, 294 (Minn. 1999) (holding that "translator and interpreter costs are not recoverable under the prosecution costs statute").  We therefore reverse that part of the sentencing order requiring appellant to pay $150 in interpreter costs.

            Affirmed in part, reversed in part.