State of Minnesota, Respondent, vs. Maynard George Brissett, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-994

 

State of Minnesota,
Respondent,
 
vs.
 
Maynard George Brissett,
Appellant.

 

Filed May 27, 2003

Affirmed

Minge, Judge

 

Kanabec County District Court

File No. K701144

 

Mike Hatch, Attorney General, Steven L. Schleicher, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051-1351 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his conviction for conspiracy to commit first-degree controlled substance crime.  He contends that the search warrant was invalid because of material misrepresentations in the warrant application and that an unannounced, nighttime search was not warranted.  Because there were sufficient untainted facts in the search warrant application, and because there was evidence to reasonably support the unannounced search, we affirm.

FACTS

 

On February 21, 2001, at about 4:30 a.m.,Kanabec County Sheriff's Deputy Tom Wachsmuth requested a telephonic warrant to search a residence belonging to appellant Maynard George Brissett in Mora, Minnesota.  The search was to also include a garage located on the property.  Because the judge was 40 minutes away, Wachsmuth read the judge the warrant application over the telephone.  It included information:

(1)              from Isanti County investigators that an informant told them that Brissett was manufacturing methamphetamine at his residence,

 

(2)              from the Anoka-Hennepin County drug task force that six gallons of toluene, a chemical used in the production of methamphetamine, were placed into a car registered to Brissett on or about February 7, 2001,

 

(3)              from Kanabec County deputies that at 11:00 p.m. on February 20, 2001, they arrested Morgun Davis who was on his way to Brissett's residence with a loaded handgun, a shotgun, ammunition, and methamphetamine, and

 

(4)       from a private citizen with no known criminal history that at 1:30 a.m. on February 21, 2001, the smell of rotten eggs and ammonia was coming from the vicinity of Brissett's residence, that there had been unusual activity at the Brissett residence, including smoke coming from the garage chimney, that a hole for ventilation was cut into the side of Brissett's garage, and that a large amount of traffic had been going to Brissett's residence at all times of day and night with people staying for a short period of time. 

 

Wachsmuth contended that these facts indicated that Brissett was making and selling methamphetamine and requested a search warrant allowing an unannounced, nighttime search.  The judge approved the unannounced, nighttime search warrant.

            Wachsmuth and other officers arrived at Brissett's residence and executed the warrant at approximately 5:20 a.m.  The officers noticed an odor coming from the garage area and upon entering the garage found two firearms and a man "cooking" methamphetamine.

            The team entering the mobile home found three people, methamphetamine, drug paraphernalia, a military assault rifle, two 12-gauge shotguns (one loaded), and an electronic digital scale.  Because there were footprints in the snow leading from the back door of the trailer house, the officers also searched outside.  Although it was 20 degrees below zero, the officers found Brissett hiding under the home in his stocking feet and wearing just a t-shirt. 

            Brissett was arrested.  He was subsequently charged with controlled substance crimes.  In several motions, Brissett challenged the search of his house on constitutional grounds.  The district court denied the motions.  Brissett was found guilty of conspiracy to commit first-degree controlled substance crime under Minn. Stat. §§ 152.021, subd. 2a and 152.096 (2000), and was sentenced to 91 months in prison.  This appeal followed.

D E C I S I O N

The United States and Minnesota Constitutions afford protection to citizens by providing that searches must generally be made after acquisition of a search warrant based upon a finding of probable cause and issued by a neutral and detached court.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  This court reviews 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); see also State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (stating that whether a search warrant is supported by probable cause is determined by examining the totality of the circumstances) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).

Determinations of probable cause by the district court judge issuing the warrant are afforded great deference by this court.  Wiley, 366 N.W.2d at 268.  The issuing judge

is simply to make a practical, commonsense 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.

 

Zanter, 535 N.W.2d at 633 (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332).  A reviewing court is to determine whether the issuing judge had a "‘substantial' basis for concluding that probable cause existed."  Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). 

            Here, appellant contends the warrant was invalid because Wachsmuth intentionally or recklessly included two material misrepresentations in the application for the search warrant.  First, Wachsmuth told the magistrate that the Anoka-Hennepin drug task force reported a man purchased toluene at the Fridley Home Depot store and loaded it into a vehicle registered to appellant.  Because the Home Depot does not sell pure toluene and because appellant does not have a vehicle registered to him, appellant contends the search warrant should be invalidated.  The state admits the information was inaccurate and that Wachsmuth did not take steps to verify the information.   

Appellant also contends the warrant was invalid because the warrant application omitted exculpatory statements made by Morgun Davis at the time of his arrest.  While the search warrant application stated that Davis was in possession of methamphetamine, firearms, and directions to appellant's residence, Davis also stated to the officers that appellant had nothing to do with either the methamphetamine or the firearms and that Davis had known appellant's family for years.  Appellant contends that if these assertions were added to the search warrant application, there would be no probable cause.  The district court disagreed.

This court can disregard the district court's factual findings related to misrepresentations in a search warrant application only if the findings are clearly erroneous.  See State v. Randa, 342 N.W.2d 341, 343 (Minn. 1984) (finding no error in refusal to suppress evidence seized pursuant to a warrant where the district court's findings were not clearly erroneous).  But "[d]eference to the magistrate * * * is not boundless."  U.S. v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984).

It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based.

 

Id. (citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978)).  If the application for the search warrant includes intentional or reckless misrepresentations of fact that are material to the finding of probable cause, the search warrant is void and the fruits of the search must be excluded.  State v. Moore, 438 N.W.2d 101, 105 (1989) (citing Franks, 438 U.S. at 171-72, 98 S. Ct. at 2684-85).  "A misrepresentation is ‘material' if when set aside there is no longer probable cause to issue the search warrant."  Moore, 438 N.W.2d at 105.  If the misrepresentation is material, "then the court must determine that the police deliberately or recklessly misrepresented facts, because innocent or negligent misrepresentations will not invalidate a warrant."  Id.  

Here there was no evidence that either the Anoka officers or Wachsmuth deliberately or recklessly misrepresented the Home Depot facts in the search warrant.  Furthermore, there is no evidence that Wachsmuth was even aware that the other officers had supplied erroneous information.  Nor is there any evidence Wachsmuth deliberately or recklessly disregarded Davis's statements about his connection to appellant and his family.  Without evidence of deliberate or reckless misrepresentations, the warrant is not invalidated.  

Furthermore, even excluding the information about the toluene purchase and including the additional statements made by Davis, there was sufficient information to support the issuance of the search warrant.  The application contained information from a citizen informant that smoke was coming from the garage, a hole for ventilation had been cut in the side of the garage, frequent short-term visitors were seen at all times of the day and night, and there was a strong odor in the air described as a combination of rotten eggs and ammonia. 

An informant is presumed to be credible if he or she is a first-time citizen informant with no contact to the "criminal underworld," and no track record as a police informant.  State v. Gabbert, 411 N.W.2d 209, 212 (Minn. App. 1987) (quoting State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978)).  In addition, a first-hand observation of a witness has more credibility than information based on hearsay.  Moore, 438 N.W.2d at 105.   Here, Wachsmuth knew the informant personally, knew that the informant was not involved in any criminal activity, could verify the informant's name and address, and was unaware of any reason for the informant reporting the activity other than to simply report suspicious activity.  Although appellant challenged the district court's decision to not reveal the name of the informant, the release of the identity of informants is within the discretion of the district court.  State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978).  When considering all of the evidence, the district court did not abuse its discretion in upholding the search warrant. 

Appellant also contends that an unannounced, nighttime search was unwarranted.  Minnesota law requires that search warrants must be executed between the hours of 7:00 a.m. and 8:00 p.m., unless a nighttime search is authorized.  Minn. Stat. § 626.14 (2000).  Authorization for nighttime searches is based upon the necessity to "prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public."  Id.  The applicant for the search warrant must show more than boilerplate or blanket allegations that drugs found in the search could be easily destroyed or that there is a risk to officer safety.  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (citingRichards v. Wisconsin, 520 U.S. 385, 395-96, 117 S. Ct. 1416, 1422 (1997)).  There is no blanket exception for felony drug cases.  State v. Botelho, 638 N.W.2d 770, 778 (Minn. App. 2002).  A reliance on "the characteristics of [the defendant's] apparent customers or associates" does not support an unannounced entry.  Id. at 779.  There need not be a high suspicion of danger, but a showing of reasonable and articulable suspicion of danger is required.  Richards,520 U.S. at 394-95, 117 S. Ct. at 1422.

            Appellant alleges that Wachsmuth did not make the special showing necessary to warrant a nighttime search and even if he did, the officer should have re-evaluated the situation upon arrival at appellant's property and determined that an unannounced entry was not necessary. 

This court independently determines whether there was a reasonable suspicion that an announced entry would threaten officer safety.  Wasson, 615 N.W.2d at 320.  There is a difference between a generalized showing of drug trafficking and allegations of a threat to officer safety because of the particular circumstances of the alleged presence of a methamphetamine lab.  Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001) (stating the warrant must show a need for an unannounced search because of the particular circumstances).  Methamphetamine labs involve the possession and use of highly flammable and explosive chemicals, which creates an inherently dangerous situation.  While Wachsmuth did include some boilerplate language lifted directly from Minn. Stat. § 626.14, he also included information that guns and ammunition were headed to appellant's residence the same night the warrant was to be executed.  This detail provided a reasonable, articulable suspicion of a risk to officer safety. 

Based on the specific facts presented by Wachsmuth in the warrant application, we affirm the district court's decision on the issuance of an unannounced, nighttime search warrant.

Affirmed.