State of Minnesota, Appellant, vs. Michael B. Waino, 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This opinion will be unpublished and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

A03-516

 

State of Minnesota,
Appellant,
 
vs.
 
Michael B. Waino,
Respondent.

 

Filed December 2, 2003

Affirmed

Wright, Judge

 

St. Louis County District Court

File No. K7-02-600497

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Alan L. Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802-1298 (for appellant)

 

Mark D. Nyvold, Special Assistant State Public Defender, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for respondent)

 

 

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

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appealing from a pretrial order suppressing evidence obtained pursuant to a search warrant and dismissing the complaint charging first-degree controlled substance crime, appellant State of Minnesota argues that the district court clearly erred in ruling that the search-warrant affidavit failed to establish the reliability of the informants and that the information was too stale to support a probable-cause finding.  We affirm.

FACTS

 

On May 6, 2002, a search warrant was executed at respondent Michael Waino's residence in Duluth.  Numerous items were seized from the residence pursuant to the search warrant.  Waino was subsequently charged with first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 2a (2002). 

Waino challenged the validity of the search warrant at a contested omnibus hearing.  The district court ruled that the search warrant was invalid for lack of probable cause because (1) the search-warrant affidavit did not contain sufficient evidence of the confidential informants' reliability and (2) the information contained in the search-warrant affidavit was stale.  The district court granted Waino's motion to suppress the evidence obtained pursuant to the search warrant and dismissed the complaint for lack of probable cause.  This appeal followed.

D E C I S I O N

 

The United States and Minnesota constitutions provide that no warrant shall issue without a showing of probable cause.  U.S. Const. Amend. IV; Minn. Const. art. I, § 10.  With limited exceptions, a search is lawful only if it is conducted pursuant to a valid search warrant issued by a neutral and detached magistrate upon a finding of probable cause.  Minn. Stat. § 626.08 (2002); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999); State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991).  Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched.  Harris, 589 N.W.2d at 787-88; State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970). 

The 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 [or her], 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.

 

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)). 

We review the issuing judge's determination of probable cause to issue a search warrant to determine whether there is a substantial basis to conclude that probable cause exists.  In this context, "substantial basis" means a "fair probability," given the totality of the circumstances, "that contraband . . . will be found in a particular place."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995).  In determining whether a warrant is supported by probable cause, we do not review the issuing judge's decision de novo.  Harris, 589 N.W.2d at 787-88.  Rather, we give great deference to the issuing judge's probable-cause determination.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).

Minnesota courts require "a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence, for evidence of drug activity."  State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998).  "When the request of the court is for the issuance of a warrant to search a particular location, there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched."  Id. at 749.

The state contends that the district court erred in concluding that the search warrant was not supported by probable cause.  The state specifically argues that the confidential informants were reliable and that the information in the search-warrant affidavit was not stale. 

            When a search-warrant application is based on an informant's tip, we examine the informant's veracity and the basis for the informant's knowledge, among other factors, to determine whether probable cause exists.  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  "Minnesota courts have identified six considerations bearing on the reliability of an informant who is confidential but not anonymous to police."  Id.  The reliability of an informant may be demonstrated when the informant has previously given police correct information, but the affidavit must explicitly state that the informant has provided reliable information in the past.  Id.  A first-time citizen informant who has not been involved in criminal activity is presumed to be reliable, but the affidavit must specifically state that the informant does not have a history of criminal activity.  Id.  In the absence of a motive to falsify information, an informant who voluntarily comes forward without having first been arrested enjoys enhanced credibility because the informant is presumably aware that he or she could be arrested for making a false report.  Id.  Similarly, an informant making a statement against his or her penal interest may be considered reliable when the statement is provided in combination with another factor, such as corroboration or coming forward voluntarily.  Id. at 72; see also State v. Meizo,297 N.W.2d 126, 127 (Minn.1980) (finding "deficient on its face" affidavit that stated only that four informants had admitted purchasing marijuana from defendant); State v. Wiberg,296 N.W.2d 388, 396 (Minn. 1980) (concluding that informant's veracity was established by a declaration against penal interest coupled with partial corroboration).  An informant's reliability may also be demonstrated by sufficient police corroboration of the information supplied; and such corroboration of even minor details can enhance the credibility of the informant's information where the police know the informant's identity.  Wiberg,296 N.W.2d 388 at 396.

The state asserts that the confidential informants in the affidavit are either known citizen informants, thus presumptively reliable, or cooperating codefendants who gave statements that were sufficiently corroborated to establish reliability.  But our review of the affidavit establishes that information provided by only two of the six confidential informants, namely confidential informants 2 and 5, was corroborated to the degree necessary to establish reliability.

Confidential informant 1 was not shown to be reliable because the affidavit neither specifically avers (1) that the informant has previously provided reliable information to police in the past nor (2) that the officers independently corroborated the informant's statements with anything other than the statements of confidential informant 2.  Thus, the information contained in the affidavit does not establish this informant's reliability. 

The affidavit also fails to establish the reliability of confidential informant 3.  The record is silent as to whether this informant either voluntarily came forward with the information or has previously provided reliable information to the officers.  The affidavit also does not indicate whether the officers attempted to independently corroborate the information from confidential informant 3. 

Confidential informant 6 is best characterized as an informant who supplied statements against his or her penal interest.  Thus, the statements of confidential informant 6 must be independently corroborated in order to establish the informant's reliability.  Although the affidavit indicates that the officers attempted to independently corroborate the information provided by confidential informant 6 through surveillance of the residence of David Bolander, another alleged supplier of methamphetamine, and a search of the garbage from Bolander's residence, the officers' attempts failed.  Accordingly, the information supplied by confidential informants 1, 3, and 6 is not reliable. 

Because the affidavit establishes that the officers independently corroborated information from confidential informant 2's statements after conducting surveillance and a garbage search at Bolander's residence, confidential informant 2 is a reliable source.  Although the corroborating evidence does not relate to Waino's residence, it does lend credence to the confidential informant's statements about Waino's involvement in methamphetamine production at Waino's residence.  See Ward, 580 N.W.2d at 71. 

Similarly, the affidavit establishes confidential informant 5's reliability.  Confidential informant 5, whose identity is known to the police, voluntarily reported to Duluth Crime Stoppers information about Waino's distribution and use of methamphetamine.  This informant's credibility is enhanced because he or she came forward voluntarily and not anonymously, making the informant vulnerable to the consequences of providing a false report. 

Having concluded that confidential informants 2 and 5 are reliable, we next examine the information provided by these informants to determine whether it establishes probable cause to conclude that contraband would be found in Waino's residence.  Zanter, 535 N.W.2d at 633.  The state argues that the district court erred in concluding that information contained in the affidavit was stale because, according to the state, the information established a pattern of ongoing criminal activity at Waino's residence.   

When an affidavit establishes a pattern of ongoing criminal activity, probable cause is not lacking due to staleness.  Souto, 578 N.W.2d at 750.  To demonstrate ongoing criminal activity, the affidavit must include "facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."  Id. (holding that warrant was based on stale information where ten months had elapsed between attempted delivery of a package containing drugs and execution of the search warrant and telephone calls between suspects were inadequate to show the continuation of a drug-trafficking conspiracy) (citation omitted).  "When an activity is of an ongoing, protracted nature, the passage of time is less significant."  Id. (citing 2 LaFave, Search and Seizure, § 3.7(a) at 344-46).

Here, the affidavit states that four years prior to the execution of the search warrant, confidential informant 2 informed police that Justin Monchamp's girlfriend disclosed that Monchamp was manufacturing and selling methamphetamine at several locations, including Waino's residence.  Having been convicted of manufacturing methamphetamine and imprisoned in 2002, Monchamp, Waino's alleged accomplice in August 1998, remained in prison when the warrant was executed in May 2002.  The affidavit provides no basis to conclude that Monchamp was involved in any criminal activity at Waino's residence after 2000. 

In February 2001, 15 months before the search, confidential informant 5 reported to Duluth Crime Stoppers that Waino was consuming and selling eight balls of methamphetamine.  The affidavit lacks any information as to when, where, or how frequently these activities occurred.[1]  Without more, we cannot conclude that the activities described by confidential informant 5 in February 2001 were ongoing in May 2002.  The information provided by confidential informant 5, when combined with that provided by confidential informant 2 and the other confidential informants previously determined to be unreliable, fails to establish ongoing criminal activity in May 2002.  As such, the information contained in the affidavit was stale. 

The district court correctly concluded that, under the totality of the circumstances, the affidavit did not provide the issuing judge a substantial basis for finding probable cause to believe that evidence of criminal activity would be found at Waino's residence.  In the absence of reliable information as to ongoing criminal activity, the information contained in the search-warrant affidavit was stale.

Affirmed.

 

[1]  Even the most recent information contained in the affidavit, which was provided by confidential informant 6, whom we previously determined to be unreliable, indicates that the informant received drugs through Bolander, not Waino, approximately three weeks prior to speaking with the officers.  The information provided by confidential informant 6 that pertains to Waino provides no information as to when or how often Waino manufactured or sold methamphetamine at his residence.  Thus, were we to conclude that confidential informant 6 was reliable, the information provided by confidential informant 6, when viewed alone or in combination with that of confidential informants 2 and 5, nevertheless fails to provide a substantial basis for establishing probable cause.