State of Minnesota, Respondent, vs. Jon Wesley Geurkink, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-309

 

State of Minnesota,

Respondent,

 

vs.

 

Jon Wesley Geurkink,

Appellant.

 

Filed November 4, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Mille Lacs County District Court

File No. K6-02-500

 

 

 

 

Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janice Kolb, Mille Lacs County Attorney, Courthouse Square Building, 525 Second Street S.E., Milaca, MN 56353 (for respondent)

 

Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101 (for appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            On this appeal from a conviction of first-degree controlled substance crime, appellant argues that the application for a warrant to search his residence for evidence of methamphetamine production did not provide probable cause to issue the warrant.  Appellant argues that (1) the information was too stale to provide corroboration, (2) the information was hearsay, (3) the most recent informant was not reliable, and (4) the police investigation was not sufficiently corroborative of the information.  Viewed within the totality of the circumstances, the warrant application contained sufficient evidence to show probable cause, and we affirm.

FACTS

            On May 2, 2002, the district court issued a search warrant for appellant Jon Wesley Geurkink's residence, vehicle, and person.  The warrant was based on the following relevant facts as stated in the warrant application:

On 04/30/02 your Affiant[] received a telephone call from Investigator Jeff Baker of the Sherburne County Sheriff's Office.  Investigator Baker stated that he met face to face with a confidential reliable individual (CRI), who informed him that with in the last seven days CRI has personally observed a methamphetamine laboratory at the Jon Geurkink residence.  CRI is aware of what a methamphetamine laboratory is as CRI explained the ingredients to Investigator Baker.  CRI also provided the address for Jon Geurkink as being, 203 East Main St. Pease, Mn.  CRI has stated that there are 20lb tanks that contain anhydrous ammonia in the shed.  CRI provided this information voluntarily.

            Your Affiant knows from past experiences that Jon Geurkink does live at 203 East Main Pease, Mn.  Also 203 East Main Pease is right across the street from Pease Christian School.  Your Affiant checked the Mille Lacs County Sheriff computers system, it show[s] that Jon Geurkink lives at 203 East Main Pease, Mn.  The computer system indicated that Jon Geurkink received a permit to acquire a gun in January of 2002.  The computer also shows that Jon Geurkink has been arrested for warrants from Hennepin County.  Jon Geurkink has been arrested on a warrant for disorderly conduct.  Jon Geurkink was arrested on a warrant for a loaded gun in a motor vehicle.  He was also arrested for 5th degree assault.

            Your Affiant has done surveillance on 203 East Main Pease, Mn.  And did observe a black Ford truck in the yard with License plate number ADE225.  Inquiring license plate ADE225 through the Minnesota Department of Public Safety, Motor vehicle Division, this vehicle registers to Jon Geurkink at 203 East Main Pease, Mn.

            In June of 1997 your Affiant received information from a concerned citizen (CC), who supplied your Affiant with CC's name, address.  Your Affiant checked the Mille Lacs County records, NCIC, and State BCA records and found nothing of either arrest or convictions to indicate that CC had been involved in any criminal activity.  Your Affiant has personally known CC for the last 12 years, and knows CC to be truthful.  CC informed your Affiant that CC had found a white powder substance on Jon Geurkink. When confronted with the white powdery substance, Jon Geurkink denied any involvement.  CC destroyed the white powdery substance.

            In December of 1998 your Affiant received information from another concerned citizen (CC), who supplied your Affiant with CC's name, address.  Your Affiant checked the Mille Lacs County records, NCIC, and State BCA records and found nothing of either arrest or convictions to indicate that CC had been involved in any criminal activ[ity].  CC informed your Affiant that Jon Geurkink is involved in selling methamphetamine in the ISANTI County area.  CC also stated that Jon Geurkink was driving with a meth lab in his truck, that Geurkink had no insurance and was revoked.  Your Affiant checked with the Department of Public Safety, Driver License Division and found that Jon Geurkink's driving privilege was revoked.  This information was relayed to ISANTI County Sheriff Office.

            In November of 2000, your Affiant received a telephone call from Officer Lynn Moraw of the Eden Prairie Police Department, stating that she had information that a Jon Geurkink, who lives in Pease, Mn., is selling Methamphetamine.  Officer Moraw stated that Jon Geurkink drives a pickup truck with some type of landscaping sign on the side.  Officer Moraw would call back if she obtain[ed] any other information.  I never received a telephone call back from Officer Moraw.  Your Affiant did surveillance on Jon Geurkink and found that he did live at 203 East Main, Pease.

            Your Affiant requests that the identity of the CRI mentioned in this affidavit remain confidential as Affiant believes the CRI may be in danger of great bodily harm if the CRI true identities were known.

 

            The affiant was Investigator Alan Marxhausen, whose 22 years of experience in law enforcement, which involved investigating controlled-substance crimes and considerable training in the detection of drug-related criminal activity, also formed the basis for the search warrant.

            While searching Geurkink's residence, the officers found a complete, portable clandestine methamphetamine laboratory, also known as a "box lab."  In a silo on the premises, the officers also found anhydrous ammonia in a propane tank with altered valves.

            The state charged Geurkink with (1) controlled substance crime in the first degreemanufacture of methamphetamine, and (2) unlawful containment, tampering, theft, or transport of anhydrous ammonia.  Geurkink moved for a contested omnibus hearing to suppress the evidence found at his residence, arguing that the facts in the search warrant application were insufficient to justify the issuance of the warrant.  The district court denied Geurkink's motion, finding that the informant was reliable, that there was sufficient corroboration from other sources, and that the warrant was supported by probable cause.

            Indicating that he intended to follow the Lothenbach procedure, Geurkink pleaded guilty, waived his right to a trial, and his attorney presented a factual basis to support Geurkink's plea on stipulated facts.  The court stated it would enter a "verdict" after the state filed police reports to provide a further factual basis for the conviction.  The district court later adjudged Geurkink guilty of controlled substance crime in the first degreeattempted manufacture of methamphetamine in violation of Minn. Stat. §§ 152.021, subd. 2a, 609.17 (2002).  Geurkink appeals from the district court's November 12, 2002 order denying his motion to suppress the evidence obtained in response to the search warrant.

D E C I S I O N

1.         Lothenbach Plea

            The first issue is whether Geurkink preserved his right to appellate review under State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).

            In Lothenbach, the defendant entered a negotiated plea of guilty but, with the prosecutor's acquiescence, expressly preserved for appeal certain Fourth Amendment issues.  Id. at 856-57.  The supreme court viewed Lothenbach's plea as conditional, noted that conditional pleas of guilty are not permitted, and described the appellate waiver that results from a plea of guilty: "The traditional viewpoint in Minnesota, as well as elsewhere, has been that a guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects, including Fourth Amendment claims."  Id. at 857.  Despite the waiver rule, the supreme court observed that the defendant, defense counsel, the prosecutor, and the trial court all believed that by pleading guilty Lothenbach would not waive his right to appeal.  Id. at 858.  Although the supreme court did not approve the procedure Lothenbach used, it "decided to put substance over form and treat this as an appeal from a finding of guilty based on stipulated facts."  Id.

            A procedure the Lothenbach court recognized as proper and as effective to preserve issues for appellate review has four components: (1) the defendant pleads not guilty; (2) the defendant waives his right to a jury trial; (3) the defendant stipulates to facts the prosecution would present to prove the defendant's guilt; (4) the trial court finds the defendant guilty on the stipulated facts.  Id. at 857.  If these four components are satisfied, the defendant adequately preserves alleged errors for appellate review.

            Geurkink did not satisfy the first component of the Lothenbach procedure because he pleaded guilty.  Nevertheless, like the defendant in Lothenbach, Geurkink did not intentionally relinquish his right of appeal, but rather expressly reserved it.  Thus, we hold that, despite his failure to comply fully with the approved Lothenbach procedure, Geurkink did not waive his right to appeal.

2.         Probable Cause

            The second issue is whether the application contained sufficient evidence to support a finding of probable cause to issue a search warrant.  A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.  U.S. Const. Amend. IV, Minn. Const art I, § 10; Minn. Stat. § 626.08 (2002).  In determining whether a warrant is supported by probable cause, we do not review the district court's decision de novo.  Rather, we afford "great deference" to the issuing court's finding of probable cause.  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  Review is limited to ensuring "that the issuing judge had a ‘substantial basis' for concluding that probable cause existed."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).

            The court determines probable cause to issue a search warrant under a "totality of the circumstances" test.  Gates at 238, 103 S. Ct. at 2332.  The task of the issuing judge

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.

 

Id.

            When reviewing the sufficiency of an affidavit under the totality of the circumstances test, issuing judges must be careful not to review the components of the affidavit in isolation.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  "Even 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. (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085, 2089 (1984)).  Doubtful or marginal cases should be "largely determined by the preference to be accorded warrants."  Id. (quoting Upton, 466 U.S. at 734, 104 S. Ct. at 2089. 

The evidence necessary to support a finding of probable cause sufficient for the issuance of a search warrant is significantly less than that required to support a conviction.  State v. Harris, 589 N.W.2d 782, 790 (Minn. 1999) (citing Gates, 462 U.S. at 235, 103 S. Ct. at 2330).  "Unlike proof beyond a reasonable doubt or preponderance of the evidence, ‘probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'"  Id. at 790-91 (quoting Gates, 462 U.S. at 244 n.13, 103 S. Ct. at 2335).

            Geurkink argues that the informant, with whom Officer Baker spoke on April 30, 2002, was unreliable.  The relevant factors to consider when evaluating an informant's reliability for purposes of probable cause to support a search warrant include lack of anonymity, giving information voluntarily, and personal observation.  See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (determining that an informant who is not anonymous is more likely to be telling the truth because he or she presumably knows that the police could arrest him or her for making a false report); Wiley, 366 N.W.2d at 269 (determining that the informant's reliability is enhanced by a history of providing accurate information, personal observation, and giving information voluntarily).

            In addition, when an officer meets face-to-face with an informant, there is a high degree of credibility.  State v. Vereb, 643 N.W.2d 342, 347 (Minn. App. 2002).  Officer Baker told Marxhausen that he had met face to face with a confidential informant who voluntarily told him that he had personally observed a methamphetamine laboratory in Geurkink's residence within the last seven days.  The informant demonstrated familiarity with the process of manufacturing methamphetamine and accurately described the ingredients.  The informant stated that there were 20-pound tanks of anhydrous ammonia in a shed on Geurkink's property.  The informant also provided Geurkink's address.  Under Lindquist and Wiley, this information has indicia of reliability because it was voluntarily conveyed to a police officer and was based on the informant's personal observation.  In addition, Marxhausen verified the address by conducting surveillance of Geurkink's residence.  This information also corroborated the information Marxhausen received in November 2000 from an officer in the Eden Prairie Police Department, who stated that Geurkink was selling methamphetamine, drove a pickup truck, and lived in Pease, Minnesota.

            Geurkink argues that this information is unreliable because Marxhausen never heard the corroborating information firsthand.  Hearsay evidence may be a component of the evidence that establishes probable cause to issue a warrant, provided there is a substantial basis for crediting its validity.  Ventresca, 380 U.S. at 108, 85 S. Ct. at 745-46.  Here, the affidavit does not entirely reflect Marxhausen's personal observations, but shows the underlying circumstances supporting Marxhausen's conclusions and that the informant was credible and reliable.

            Geurkink argues that some of the information in the warrant application was too stale to corroborate the more recent evidence.  "Appellate courts have refused to set arbitrary time limits in obtaining a warrant or to substitute a rigid formula for the judge's informed decision."  State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985).  In determining whether information supporting a search warrant is stale, magistrates must apply "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."  Id. at 194 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949)).  "The court's approach should be one of flexibility and common sense." Id

In 1997, a concerned citizen informed Marxhausen that he had personally found a white powder substance in Geurkink's possession.  Marxhausen had known the citizen for 12 years and knew him to be truthful.  In 1998, another concerned citizen informed Marxhausen that Geurkink was selling methamphetamine and had a methamphetamine lab in his house.  This citizen also stated that Geurkink did not have automobile insurance and that his driver's license had been revoked.  While this information alone would not have supported probable cause to issue a warrant, in context with the other evidence, it is not too stale to corroborate the other information.

In addition, information supporting probable cause for a search warrant "has been held not stale even after the passage of several months where the items sought are of ‘enduring utility to their taker.'"  State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (quoting State v. Flom, 285 N.W.2d 476, 477 (Minn. 1979)).  The items listed in the search warrant, such as the materials necessary to manufacture methamphetamine, were items that Geurkink would likely retain for ongoing and continuous methamphetamine possession and manufacture.

Also important in evaluating an informant's reliability is the amount of corroborating evidence the search-warrant application contains.  Lindquist, 295 Minn. at 400, 205 N.W.2d at 335.  Police corroboration of a key detail of an informant's statement lends credence to the remaining portions of the statement.  Id.  And "[t]he independent corroboration of even innocent details of an informant's tip may support a finding of probable cause."  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  Here, Marxhausen engaged in surveillance and independent investigation of Geurkink and was able to confirm Geurkink's address and verify that the description of Geurkink's vehicle was accurate and reliable.  The record also shows that the informant's information was corroborated by the previous reports from the concerned citizens.

We find that the issuing judge had a sufficient basis under a totality-of-the-circumstances analysis for concluding that probable cause existed to support a search warrant.  See Wiley, 366 N.W.2d at 268 (requiring issuing judges to view the evidentiary components together).  The application for the search warrant contained probable cause to issue the warrant, and the district court properly admitted the evidence obtained in response to the search warrant.

Affirmed.