State of Minnesota, Respondent, vs. Jason Lawrence Neuman, Appellant (C6-02-2070), Ernest Fred Rosa, Appellant (CX-02-2072).

This opinion will be unpublished and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 APPEAL

C6-02-2070

CX-02-2072

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Lawrence Neuman,

Appellant (C6-02-2070),

 

Ernest Fred Rosa,

Appellant (CX-02-2072).

 

 

Filed August 26, 2003

Affirmed

Toussaint, Chief Judge

 

Lyon County District Court

File No.  K7011124

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Jerilyn Aune Hanold, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Rick Maes, Lyon County Attorney, 607 West Main St., Marshall, MN 56258 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Ave. S.E., Suite 425, Minneapolis, MN  55414 (for appellants)

 

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

These consolidated appeals are from convictions for second-degree controlled substance crimes.  Appellants challenge the search warrant for the search of appellant Rosa's house, which resulted in the discovery of 75 pounds of marijuana.   Because we conclude the search warrant was supported by probable cause, we affirm.

D E C I S I O N

            A determination of probable cause to support a search warrant is entitled to great deference.  State v. Ward, 580 N.W.2d 67, 70 (Minn. App. 1998).  An appellate court reviews a district court's decision to issue a warrant only to determine whether the issuing judge had a substantial basis for concluding that probable cause existed.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  In close cases, the issue "should be largely determined by the preference to be accorded warrants" as against unwarranted searches.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citations omitted).

              A search warrant may issue if, based on the "totality of the circumstances," there is a "fair probability 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).  In reviewing the sufficiency of the warrant application under the "totality of the circumstances" test, the court must be careful to avoid reviewing each component of the application in isolation.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).

              The search warrant application stated that on the day before the application, police received a call from a man who wanted to remain anonymous relating that "he could smell a very strong odor of marijuana coming from 412 Harvey St.," where Rosa, whom the caller knew as "Fritz," lived.  The caller added that the smell was of fresh, rather than burnt, marijuana, and that there had been some short-term traffic to and from the residence.

              Appellants challenge this anonymous call as deficient because the caller's reliability and basis of knowledge were not shown.  But those are only two of the relevant factors in the "totality of the circumstances" test.  Illinois v. Gates, 462 U.S. 213, 230-33, 103 S. Ct. 2317, 2328-29 (1983).  Far more important here is that the anonymous tip was so thoroughly corroborated by police the following day that it served only a corroborative function in the search warrant application.

              The day after the anonymous tip, police drove to the alley behind Rosa's house and smelled an odor of marijuana coming from his garage.  This court has noted:

                        It has long been held that the detection of odors alone, which

                        trained police officers can identify as being illicit, constitutes

                        probable cause to search automobiles for further evidence of

                        crime.

State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984) (citations omitted); see also State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (holding that officer smelling odor of alcohol coming from car had probable cause to search it for open bottles).  Appellants challenge this police observation of a marijuana odor on technical grounds, but a reviewing court is not to engage in a "hypertechnical examination" of a search warrant application.  State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996).  Police detection of the odor of marijuana, if not providing probable cause by itself for the search of a residence, was amply corroborated by the anonymous tip, and by the third part of the application, a year-old consent search.

              The application related that police had gone to Rosa's residence a year earlier, where they obtained consent to search and saw a marijuana plant in the rafters of the garage, as well as a room in the house with a fluorescent light and walls covered with aluminum foil.  Although appellants argue that this year-old information was stale, the apparent "grow room" provided some indication of ongoing criminal activity.  See State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).  But we need not decide whether this information was stale because it served only a small corroborative function in the search warrant application.  Looking at all the component parts of the application together, in a common-sense fashion, the application provided ample probable cause to search Rosa's residence.

              Affirmed.