State of Minnesota, Appellant, vs. Daniel Nathan Deyle, Respondent.

This opinion will be unpublished and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

A03-137

 

 

State of Minnesota,

Appellant,

 

vs.

 

Daniel Nathan Deyle,

Respondent.

 

 

Filed November 10, 2003

Reversed

Anderson, Judge

 

Freeborn County District Court

File No. KX-03-85

 

Mike Hatch, Attorney General, Cheri A. Townsend, Assistant Attorney General 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for appellant); and

 

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN  56007 (for appellant)

 

Mark D. Nyvold, Suite 1030, 46 East Fourth Street, St. Paul, MN  55101; and

 

Chester D. Swenson, P.O. Box 426, Albert Lea, MN  56007 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Anderson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            The state appeals a pretrial decision by the district court to suppress evidence seized while executing a search warrant.  Appellant argues that the district court erred in concluding the search warrant was not supported by probable cause because the confidential informant, who provided the bulk of the information in the search warrant affidavit, was established as reliable in the affidavit.  Appellant also argues that there were particularized facts supporting the unannounced entry because, in addition to the toxicity of the chemicals, there was surveillance equipment, the windows were boarded up, and there were multiple dogs at respondent's home.  Lastly, appellant argues that even if there was no probable cause, the evidence should not have been suppressed because law enforcement officers relied on the search warrant in good faith.  We reverse.

FACTS

 

            On January 17, 2003, law enforcement officers obtained and executed an unannounced entry ("no-knock") search warrant for the home of respondent, Daniel Deyle.  Deputy Scott Golbuff of the Freeborn County Sheriff's office submitted an affidavit in support of the search warrant.   

            The affidavit stated that: 1) Deputy Golbuff had been informed by Detectives Harig and Arnold of the Albert Lea Police Department that they believed that respondent had been cooking methamphetamine on his farm for several months; 2) Arnold had a confidential informant who had been inside respondent's home within the past seven days and had seen marijuana plants and "used coffee filters with anhydrous residue;" 3) Arnold's confidential informant further advised that respondent was in possession of methamphetamine; 4) Arnold's confidential informant stated that respondent had surveillance cameras "around the property and monitors inside the house;" 5) Arnold's confidential informant also related that a woman, Jamie Piper, had been seen inside respondent's home many times; 6) respondent had five dogs and the windows of respondent's house were boarded shut; 7) Arnold's confidential informant had made previous controlled and verified purchases for methamphetamine and had previously provided other verified information; 8) equipment and supplies for making methamphetamine were most likely outside the residence in abandoned vehicles or outbuildings because methamphetamine is so toxic; 9) Arnold's confidential informant said that respondent was very paranoid and used methamphetamine heavily; 10) respondent had been caught and charged with transporting anhydrous ammonia in 2000; and 11) Harig had arrested Piper in Owatonna in a methamphetamine laboratory.

            The affidavit further requested an unannounced entry "[b]ecause of the danger involved in methamphetamine production [sic] the Officers [sic] safety and the suspect safety are at risk.  If the subject tries to dispose of the material in an unsafe manner it could cause a public safety issue."  The affidavit stated that Golbuff expected to find drugs, drug paraphernalia, lists of associates, cash, weapons, surveillance equipment, and materials for making methamphetamine.  The unannounced entry search warrant was issued and executed, and methamphetamine and material for making methamphetamine were found at respondent's home.

            In his omnibus hearing memorandum, respondent argued that the affidavit did not support a finding of probable cause because it was based on hearsay and was vague.  Respondent argued that the search warrant was also invalid because it allowed for an unannounced entry without a strong showing of particularized facts justifying an unannounced entry.  The state argued that there was probable cause to support the warrant and that there were particularized facts supporting the unannounced entry provision. 

            The district court suppressed the seized evidence, holding that there was not probable cause supporting the search warrant and that there were not particularized facts supporting the unannounced entry.  This appeal followed.

D E C I S I O N

 

            If the state appeals pretrial suppression orders, it "must ‘clearly and unequivocally' show both that the trial court's order will have a ‘critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).

            As a threshold matter, the parties agree the suppression order has a critical impact on the case because the evidence gained from the search provided the basis for the charges.

            Both the United States and Minnesota constitutions specifically forbid unreasonable searches and require that warrants only be issued for probable cause.  U.S. Const. Amend. IV; Minn. Const. Art I, § 10.  Thus, a search typically is lawful "only if it is conducted pursuant to a valid search warrant."  State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991).  "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).   "[E]vidence recovered during an unlawful search may not be introduced at trial."  State v. Martinez, 579 N.W.2d 144, 148 (Minn. App. 1998), review denied (Minn. July 16, 1998).

            Reviewing courts should give a great deal of deference to the issuing magistrate's determination of probable cause.  State v. Barnes, 618 N.W.2d 805, 809 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  Typically, "[a]ppellate review is limited to ensuring that the issuing magistrate had a ‘substantial basis' for concluding that probable cause existed."  Id. at 809-810.  Additionally, the reviewing court is not to engage "in a ‘hypertechnical examination of the affidavit.'"  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quoting State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996)).

            When examining affidavits, courts are to look at the totality of the circumstances and "‘to make a practical, common-sense decision'" whether there is probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462, U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  Probable cause is to be determined solely by the information contained in the affidavit.  Ward, 580 N.W.2d at 71.  But "reasonable inferences" are permissible to determine if there is probable cause.  Id. at 71.  One definition of probable cause is "a fair probability that contraband or evidence of a crime will be found in a particular place."  Id. at 70 (quoting State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).

            The state argues that the information contained in the search warrant was sufficient to provide the issuing judge a substantial basis for finding probable cause because information from a confidential informant with first-hand knowledge was included as well as other evidence tending to indicate drug involvement on the part of respondent.  Respondent counters that the affidavit was impermissibly based on hearsay, the information contained in the affidavit was conclusory and easily obtained, and the affidavit mentioned neither that an earlier charge against appellant was dropped nor the date of Piper's arrest.

            The reliability of a confidential informant is determined, in part, by examining the circumstances surrounding the informant in light of several non-exclusive factors: 1) a first-time citizen informant is presumably reliable; 2) an informant who has given reliable information in the past is likely also currently reliable; 3) an informant's reliability can be established by police corroboration of the information; 4) the informant is presumably more reliable if the informant voluntarily comes forward; 5) in narcotics cases, "controlled purchase" is a term of art that indicates reliability and that the police conducted a search of the informant immediately before and after the purchase and conducted surveillance; 6) an informant is at least marginally more reliable if the informant makes a statement against the informant's interests.  Ward, 580 N.W.2dat 71-72.  An informant's reliability is not enhanced when the informant merely provides easily obtained information.  Albrecht, 465 N.W.2d at 109 (Minn. App. 1991).

            A police officer need not have personal knowledge of the facts averred so long as someone participating in the investigation has the knowledge.  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  An affidavit sets forth probable cause if it contains "sufficient collective information to establish probable cause."  State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982) (emphasis added).  An affidavit may rely on information gathered from an officer in a different agency.  Barnes, 618 N.W.2d at 810.

            In light of these well-established principles, respondent's argument that the information from the confidential informant is automatically suspect because the affiant did not speak directly with the confidential informant fails; further, respondent offers no support, factual or otherwise, for the argument that the affidavit is defective because of the use of hearsay statements.

            The affidavit supplies a wealth of information supporting the reliability of the confidential informant and therefore the issuance of the search warrant. The affidavit clearly establishes that the confidential informant had provided Arnold with reliable information in the past.  At least some of the information, dealing with respondent's methamphetamine practices, had been independently corroborated by the detectives.  The affidavit clearly outlines that the informant had previously made controlled purchases.  Additionally, the confidential informant supplied information that was not easily obtained including identifying Piper as someone spending a great deal of time at respondent's home and the presence of surveillance equipment both inside and outside the home.  Respondent's challenge to his characterization in the affidavit as paranoid also fails; the affidavit provides more than a little information about respondent's paranoid behavior including boarded up windows, multiple dogs, and surveillance equipment at his house.  

            We conclude that the confidential informant was reliable and that the district court erred in its determination that there was not probable cause to believe that there would be evidence of methamphetamine production at respondent's home.

            We turn next to the unannounced entry, or "no-knock," portion of the search warrant. "Inquiry into the need for an unannounced entry is included in the reasonableness inquiry into the warranted search under the Fourth Amendment of the U.S. Constitution."  Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001).  "[E]vidence should be suppressed when the circumstances do not warrant an unannounced entry."  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).  "Where the material facts are not in dispute, this court independently reviews whether a no-knock entry was justified."  Barnes, 618 N.W.2d at 810.

            An unannounced entry is justified if the police "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence."  Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997).  "This showing is not high."  Id. at 394, 117 S. Ct. at 1422.  Law enforcement officials are merely required "to inform the issuing magistrate of the circumstances that they believe justify the unannounced entry and to obtain specific advance authorization for an unannounced entry."  Wasson, 615 N.W.2d at 320.  Reasonable suspicion is defined "as something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue."  Id.

            In Richards, the U.S. Supreme Court concluded that an unannounced entry was justified when the police knocked on the door of a drug suspect and announced themselves as maintenance workers, the suspect opened the door, recognized the officers as police officers, and slammed the door.  Richards, 520 U.S. at 388-96, 117 S. Ct. at 1419-22.  The Court said, "These actual circumstances [the suspect's] apparent recognition of the officers combined with the easily disposable nature of the drugs justified the officers' ultimate decision to enter without first announcing their presence and authority."  Id. at 396, 114 S. Ct. at 1422.

            Here, the recent observation of surveillance equipment, boarded up windows, and five dogs are particularized facts, as Richards requires.  Not only does the record support the reliability of the confidential informant, the affidavit, examined in its entirety, clearly supports the issuance of a "no-knock" warrant.  See Wasson 615 N.W.2d at 320-21.  Richards and Wasson require only that there be at least one other particularized fact in addition to the presence of illegal drugs to support the suspicion that knocking and announcing would be dangerous or futile.  See Richards 520 U.S. at 396, 117 S. Ct. at 1422 (considering "the easily disposable nature of the drugs" in considering the reasonableness of the search); see also Wasson 615 N.W.2d at 321 (allowing consideration of the fact that there was "ongoing drug activity" at the residence in considering the reasonableness of the suspicion).  The particularized facts that respondent had surveillance equipment and a large number of dogs combined with the more general facts that respondent was suspected of dealing with very dangerous equipment and products in making illegal drugs, created a reasonable suspicion that knocking and announcing their presence before entering would not be conducive to either effective law enforcement or officer safety.  The "no-knock" warrant was properly issued.

Because we conclude that the district court erred in finding the search warrant and supporting affidavit to be deficient, we need not address the state's contention that this court should recognize a good-faith exception to the warrant requirement.

            Reversed.