State of Minnesota, Respondent, vs. Nic Sean Rinde, 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This opinion will be unpublished and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

A03-946

State of Minnesota,

Respondent,

vs.

Nic Sean Rinde,

Appellant.

Filed June 8, 2004

Affirmed

Lansing, Judge

Stearns County District Court

File No. K9-02-1175

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

Janelle P. Kendall, Stearns County Attorney, Sam D. Young, Assistant County Attorney, 705 Courthouse Square, Administration Center, RM 448, St. Cloud, MN 56303-4701 (for respondent)

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Nic Rinde challenges the district court's denial of his motion to suppress all evidence obtained from the execution of a search warrant at a residence in which he was involved in the manufacture of methamphetamine.  Rinde maintains that the search warrant application was insufficient because it contained information provided by an informant who was later determined to have a conviction related to credibility and that the application failed generally for lack of probable cause.  In a pro se brief, Rinde argues that factual errors at trial substantially affected the determination of his guilt.  Because the warrant application provided probable cause for the issuance of a search warrant and the minor factual error in the district court's findings is inconsequential, we affirm.

F A C T S

            St. Cloud police officers obtained and executed a search warrant for a residence and an attached garage, the other structures on the property, the person who identified the residence as his home address on his driver's license and that person's car, another car that appeared to be stored on the property, and the person of Nic Rinde.  The officers were acting on an ongoing investigation of Rinde for the manufacture and distribution of methamphetamine.  In the garage and house of the residence, officers found a variety of materials necessary to the manufacture of methamphetamine.  Rinde was also found at the residence, along with his nine-year-old son and the person who listed the house as his residence.  The officers arrested Rinde, and the following day he was charged with first-degree manufacture of methamphetamine.  The charge was later amended to include aiding and abetting the manufacture of methamphetamine and child endangerment.

            On the day before the execution of the search warrant, police had applied to the Stearns County District Court for the warrant.  The affidavit supplied in support of the warrant application detailed the ongoing investigation of Rinde by various Stearns County law enforcement agencies for the manufacture of methamphetamine.  Included in this affidavit were reports of Rinde's methamphetamine-related activities made by a variety of informants. 

These informants provided several distinct categories of information relevant to the issuance of the search warrant.  The first category established Rinde's involvement in the sale and manufacture of methamphetamine.  Rinde's neighbors and multiple other informants described activity consistent with the sale of controlled substances, including direct testimonials to Rinde's reputation as a methamphetamine dealer, information that he used various individuals to obtain the constituent materials, his previous conviction on a methamphetamine charge, and reports of the smell of anhydrous ammonia coming from a previous residence.  The second category consisted of evidence of methamphetamine manufacture and sales at the residence, and included observation by neighbors of frequent short stops at the residence by a variety of vehicles, details about disposal of household refuse, and eyewitness accounts establishing that persons whose vehicles were seen parked at the residence had purchased toluene.  The final category was information that placed Rinde at the residence, which included both informant knowledge and the presence of automobiles which indicated his presence.

Based on the affidavit, the district court issued a search warrant for the residence, the other structures on the property, two cars, Rinde's person, and that of the person believed to be the primary resident.  Following Rinde's arrest, the district court denied his motion to suppress all evidence obtained as a result of the search warrant.  The district court reopened the evidentiary hearing after learning that one informant had a gross misdemeanor conviction for providing false information to a peace officer.  Reconsidering the application in light of the new information, the district court again denied Rinde's motion to suppress.  Rinde waived his right to a jury, and, following trial, the district court found him guilty of manufacture of methamphetamine, aiding and abetting the manufacture of methamphetamine, and child endangerment.  Rinde appeals, challenging the validity of the search warrant and the district court's factual findings.

D E C I S I O N

I

We will uphold a district court's decision to issue a search warrant if the record contains a substantial basis to conclude that the application provided probable cause.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  In this context, a substantial basis is indicated by 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) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  The reviewing court should give great deference to the issuing judge's determination of probable cause, and not subject that determination to a rigorous de novo review.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  Cases that are doubtful should be resolved in favor of the issuance of a warrant.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).

Rinde contends that the information provided in the affidavit was insufficient to support a determination of probable cause for the issuance of a search warrant for the residence and the associated buildings, cars, and people.  He attacks each piece of information individually, stating that the informant lacked a personal basis for one item of information and did not have current information to assert another.  But Rinde's line-item scrutiny of the affidavit fails to recognize that the law requires a "fair probability," not certainty, that the search warrant would result in evidence relevant to Rinde's criminality, and that the totality of the circumstances contributing to that probability must be considered.  Zanter, 535 N.W.2d at 633; see also Wiley, 366 N.W.2d at 268 (in determination of probable cause, court "must be careful not to review each component of the affidavit in isolation").

The affidavit provided the district court with three essential categories of information:  (1) that Rinde was involved in methamphetamine manufacture and distribution; (2) that methamphetamine-related activity was occurring at the residence; and (3) that Rinde was to be found there.  Every category of information was corroborated at least once by other information compiled in the affidavit.  Given the totality of the circumstances, the district court had a substantial basis to believe that Rinde and methamphetamine-related contraband would be found at the residence.  Indeed, we find it difficult to imagine how the district court could have read the affidavit and concluded otherwise.

Rinde also argues that the district court's determination of probable cause was undermined by the revelation that one informant had a gross misdemeanor conviction for providing a false name to a peace officer.  While the officer truthfully stated in the affidavit that this informant had no felony convictions, Rinde successfully moved the district court to reopen the omnibus hearing and consider the relevance of the informant's gross misdemeanor conviction.  The district court found that this factual omission was negligent, and found further that sufficient indicia of the reliability of the informant existed to sustain the issuance of a search warrant even if the affidavit had listed the gross misdemeanor conviction.

A search warrant may be voided, and any evidence obtained under the warrant suppressed, if the court finds that material facts were knowingly, or with reckless disregard for the truth, omitted from the affidavit.  State v. Doyle, 336 N.W.2d 247, 250 (Minn. 1983) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978)).  If the district court finds knowing or reckless omissions, it must supply the omissions and then determine whether the affidavit still establishes probable cause.  Id.  In this respect, our analysis diverges from the district court's.  The district court applied the framework provided by State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977), which is designed for material misrepresentations of fact in an affidavit, rather than Doyle, which extended the rule to material omissions.  In applying the Causey analysis, the district court characterizes all of the informant's statements as material misrepresentations subject to its analysis.  But it was a material omission, the informant's gross misdemeanor conviction, that is the subject of the court's analysis, not material misrepresentations of fact.  Because the district court's ruling is correct, we need not reverse its judgment.  See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (appellate court has responsibility to decide cases in accordance with the law and thus a ruling may be upheld on an alternative legal theory).

Under a strict application of the rule in Doyle, because the district court found that the material omission was negligent, its inquiry could have ended there.  Nonetheless, the court reconsidered the affidavit in light of the gross misdemeanor conviction and found that probable cause remained for the issuing court's search warrant.  Primary among the reasons why probable cause remained following Rinde's pretrial challenge of the informant's credibility were two facts: law enforcement had relied on the informant in the past, and the informant's contributions to this investigation were corroborated by other information in the affidavit.  See Wiley, 366 N.W.2d at 269 (past successful collaboration with informant and corroboration of statements contributes to informant's reliability).

We are confident that, even subtracting the informant's contributions from the affidavit, probable cause for the issuance of the search warrant remained.  While the informant's statements led the investigation to the residence, the information acquired during the subsequent surveillance of the residence and prior to the application for the search warrant formed the basis for the probable cause determination.  This information included documentation that an automobile registered to Rinde's father had been seen at the property, that automobiles seen at the residence were transporting persons for the acquisition of materials used in the manufacture of methamphetamine, and that one of those automobilesowned by a resident of the subject propertywas used by a person identified as Rinde when he was purchasing toluene.  The failure to include one informant's gross misdemeanor conviction in the search-warrant affidavit does not in any way disqualify the use of the information in developing the investigation leading up to application for the warrant.  The product of that investigation was sufficient, without the information from the informant in question, to provide probable cause for the issuance of the warrant.

Finally, Rinde argues that the district court improperly sustained objections on grounds of relevance to defense counsel's questions about the informant at the reopened evidentiary hearing.  We will reverse a district court's evidentiary rulings only if the court clearly abused its discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Even if the district court has committed error in excluding defense evidence, that error is harmless when the evidence would not have affected the determination of guilt.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  While these cases contemplate a district court's discretion in a trial context, we find them analogous to our review of the court's conduct of an evidentiary hearing.  Counsel's line of questioning went to the issue of the informant's credibility, seeking to cast doubt by revealing a motive for sharing information.  But the informant's credibility, as we have already concluded, was confirmed by corroboration, previous successful collaboration, and admissions against penal interest.   See McCloskey, 453 N.W.2d at 704 (stating that informant's admission against interest is relevant to an analysis of the totality of the circumstances).  For all of the foregoing reasons, we conclude that the district court correctly ruled that the search warrant issued for the residence was based on probable cause.   

II

In an argument advanced in his supplemental pro se brief, Rinde attributes factual errors to the district court in its role as factfinder.  In general, an appellant forfeits his right to have an alleged error reviewed on appeal if he has failed to object to the error at trial, but the appellate court has discretion to review any issue if it is plain error.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  Plain error exists when the district court's error affected the substantial rights of the appellant.  Id.  However, any error that does not affect the substantial rights of the appellant is harmless and will be disregarded.  Minn. R. Crim. P. 31.01.

Rinde argues that the district court committed two errors that substantially affected the verdict.  In the district court's finding of fact number seven, the court states that "a receipt from Sherwin-Williams store for one gallon of ‘tolu[e]ne' dated March 14, 2002 at 3:37 p.m." was found in the basement bedroom of the residence.  Rinde correctly points out that the transcript indicates that police found the receipt in a vehicle parked outside the house.  The district court's finding of fact number nine states that police observed Rinde carry what appeared to be paint thinner into the house soon after the time of purchase indicated on the receipt.  Rinde states in his brief that no testimony supports this statement, but the transcript confirms that a police officer described precisely that circumstance to the district court during direct examination.

Thus the sole error is in identifying the location of a receipt for a substance used in the manufacture of methamphetamine.  The search warrant covered both the residence and the vehicle, and Rinde was seen carrying two cans of "paint thinner or toluene" from the vehicle to the garage of the residence.  Rinde does not explain how the court's mistake on the location of the receipt substantially affected the determination of guilt.  In light of the eyewitness identification of Rinde as the person who carried the paint thinner into the house shortly after the time of purchase, the error in the findings on the location of the receipt is inconsequential.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.