State of Minnesota, Respondent, vs. Lisa Jenny Guy, Appellant (A05-1002), Vincent John Guy, Appellant (A05-1165).

State of Minnesota, Respondent, vs. Lisa Jenny Guy, Appellant (A05-1002), Vincent John Guy, Appellant (A05-1165). A05-1002, A05-1165, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1002

A05-1165

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lisa Jenny Guy,

Appellant (A05-1002),

 

Vincent John Guy,

Appellant (A05-1165).

 

 

Filed May 9, 2006

Affirmed; motion denied

Lansing, Judge

 

Olmsted County District Court

File Nos. K3-04-495, K5-04-496

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Assistant County Attorney, Jeffrey D. Hill, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

James McGeeney, McGeeney Law Office, 18 Third Street Southwest, Suite 303, Rochester, MN 55902 (for appellant Lisa Guy)

 

John Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant Vincent Guy)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In consolidated appeals from convictions of first-degree controlled-substance crimes, Lisa and Vincent Guy raise three challenges to the validity of the warrant issued for the search of their home, arguing that it fails to establish the veracity of an informant, relies on stale information, and omits and misrepresents material facts.  Because the affidavit establishes the credibility of the primary information source who reported continuous criminal activity in the Guys' home and the affidavit does not omit or misrepresent material facts, we affirm.

F A C T S

            In a warranted search of Lisa and Vincent Guy's home in February 2004, the Olmsted County Sheriff's Department seized forty-eight grams of methamphetamine.  The deputy who submitted the affidavit supporting the warrant application stated in the affidavit that he had received information from two sources indicating drug activity in the Guys' home.  First, in December 2003 he learned from a commander of the gang strike force that an informant reported that the Guys were selling methamphetamine from their home.  The deputy performed a controlled garbage pull at the Guys' home but found no evidence of drug use. 

Second, and principally, the affidavit recounted specific information that the deputy obtained in February 2003 from an identified Rochester police officer.  The officer received the information from the Guys' daughter, JRG.  JRG stated that people came and went from the residence starting at 6:00 in the morning and continuing until 12:00 at night.  According to JRG, when people came to the residence, Vincent and Lisa Guy went into their bedroom, returned, and shook hands with the people, who then left. 

The affidavit stated that over the past seven years, JRG had also observed items in their home, mostly in her parents' bedroom, related to the use and sale of narcotics.  She reported that approximately eight months ago she found an envelope in the living room containing a white sugar- or salt-like substance.  The affidavit also stated that, in a desk drawer in her parents' bedroom, she saw about a hundred small baggies with a green substance in them that she believed was marijuana.  On top of the desk, she saw a mirror, a gram scale, and a razor blade.  She had previously seen half of a straw and razor blades in her mother's compact mirror, and, two months earlier, she had seen a suitcase in the attic of their house that had several pipes in it that she believed were marijuana pipes.  The garage is locked at all times, and she is not allowed to go into it. 

Two days before the date of the affidavit, JRG went into her parents' bedroom and saw a digital scale with a handwritten note on the wall saying, "[B]ring sample with me to work, am."  The same day a friend of JRG's parents called the house and left a message on the answering machine saying, "Well, maybe you're not home, but I think I may come over and smoke a bowl or two in your driveway."

Based on this information and his training and experience obtained by working for two years with the Southeast Minnesota Narcotics Task Force, the deputy drew two inferences, which he stated in his affidavit:  that the razor blades and straw that JRG saw in her mother's compact mirror were used to ingest drugs and that the Guys' home contained items associated with buying and selling narcotics.  A district court judge issued the search warrant, and the deputy, assisted by other officers, executed the warrant and seized forty-eight grams of methamphetamine from a lock box in the Guys' bedroom.

Lisa and Vincent Guy each moved to suppress the evidence obtained in the search, and, following a hearing, the district court denied the motions.  In a consolidated proceeding, the Guys submitted their cases to the district court based on stipulated facts, preserving their right to appeal the denial of their suppression motion. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (outlining procedures for stipulated-facts trial).  The court found them both guilty of first-degree controlled-substance crime for possession of methamphetamine.

On appeal, the Guys challenge the validity of the search warrant on three grounds:  that the affidavit accompanying the warrant application is insufficient because it fails to establish the credibility of the informant, relies on stale information, and omits and misrepresents material facts.  The state has moved to strike two pages from the appendix to Lisa Guy's appellate brief.

D E C I S I O N

I

            A search warrant may not issue unless it is supported by probable cause.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  When reviewing a determination of probable cause, we consider whether the issuing judge had a substantial basis to conclude that probable cause existed.  State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005).  A substantial basis exists when the search-warrant application establishes a "fair probability that contraband or evidence of a crime will be found in a particular place."  Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  For purposes of establishing probable cause, courts rely on the totality of the circumstances, recognizing that "a collection of pieces of information that would not be substantial alone can combine to create sufficient probable cause."  State v. Jones, 678 N.W.2d 1, 11 (Minn. 2004).  We accord significant deference to the issuing judge's determination of probable cause and will not invalidate a warrant by applying a hypertechnical, rather than a common-sense evaluation.  Gates, 462 U.S. at 236, 103 S. Ct. at 2331; see also State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) (stating that appellate courts give great deference to probable cause determinations).

The Guys argue that the warrant lacked probable cause because the affidavit referred to a confidential reliable informant but failed to establish the informant's credibility or reliability.  An informant's veracity and basis of knowledge are factors to be considered as part of the totality of the circumstances when determining the validity of a search warrant.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985); see also State v. Siegfried, 274 N.W.2d 113, 114-15 (Minn. 1978) (providing that affidavit must include more than conclusory statement that informant is credible and reliable).  We agree that the failure to explain the basis for an informant's credibility and reliability would cast doubt on the substantial basis for probable cause supporting the warrant's issuance.  But we must view this reference in its proper context.  The information provided by the informant was, at most, a corroborative detail, not the primary basis for the issuance of the warrant.

The affidavit relied primarily on the highly detailed and extensive information provided by JRG, whose credibility and basis for knowledge is established in the warrant.  Seventeen-year-old JRG lived in the residence to be searched, and, as stated in the affidavit, she was "not known to be involved in any criminal activity."  JRG's statements provided affirmative evidence of ongoing drug activity in the Guy home.  She related specific details about what she saw over an extended time, and the district court could reasonably conclude from this information that a fair probability existed that contraband or evidence of a crime would be found in the Guy residence.  The information attributed to the unnamed informant added slightly to the totality of the circumstances that established the substantial basis for probable cause, but it was only an incidental, not primary, basis for the warrant's issuance.

II

The Guys argue that the affidavit contained stale information because it did not provide time frames for events and referred to events that occurred several months earlier.  An affidavit must set forth "facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."  State v. Souto, 578 N.W.2d 749, 750 (Minn. 1998).  Although the failure to specifically identify a time period may lessen the probative value of some of the information, under the totality-of-the-circumstances test, an omission of time does not necessarily preclude a finding of probable cause.  Harris, 589 N.W.2d at 789.  "When an activity is of an ongoing, protracted nature, the passage of time is less significant."  Souto, 578 N.W.2d at 750.  The question of staleness is a factual determination that varies based on the circumstances of each case.  State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005), review denied (Minn. Mar. 29, 2005).  Courts must approach this issue with "flexibility and common sense" and take into consideration the character of the offense, the offender, the items to be seized, and the place to be searched.  Id. (quotation omitted).

The deputy's affidavit set forth probable cause of ongoing drug activity in the Guy home.  JRG's description of the stream of visitors to the house and the pattern of interaction between the Guys and their visitors presents strong evidence of an ongoing enterprise.  Coupled with JRG's multiple observations of implements used to ingest and distribute drugs and observations of actual controlled substances, these reports provide evidence of continuing illegal activities. 

The Guys' staleness argument points primarily to the affidavit statements that eight months earlier JRG found an envelope with a white substance in it and that two months earlier she found a suitcase with pipes in it.  This information alone may not be sufficiently specific or recent to support a determination of probable cause.  See Souto, 578 N.W.2d at 750 (finding information too stale when events supporting warrant last occurred ten months before issuance of warrant).  But appellate courts do not review affidavit components in isolation because, "[e]ven if each component is judged unsubstantial, the components viewed together may reveal . . . an internal coherence that gives weight to the whole."  Wiley, 366 N.W.2d at 268 (quotation omitted).  Two days before the warrant issued JRG observed that her parents still had the gram scale and mirror in their room.  She also described the unique pattern of frequent visitors and the interaction between the Guys and the visitors as current and ongoing.  Viewed as a whole, the information is not stale and establishes probable cause of ongoing drug activity.

III

The Guys' final challenge to the search warrant is that the deputy's affidavit omitted and misrepresented material facts and parts of the affidavit must therefore be excised.  This argument relies in part on a two-page, handwritten document that is included in the appendix of Lisa Guy's appellate brief.  The state has moved to strike these two pages as extra-record material.  The two-page document lists incidents of drug activity JRG witnessed in her parents' home and was apparently compiled by JRG after she spoke with the Rochester police officer.  The record on appeal consists of the "papers filed in the [district] court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. P. 110.01.  During the hearing at which the Guys submitted their cases to the district court, the court granted the state permission to submit additional documents to the court following the hearing.  The state submitted a packet of materials that included JRG's handwritten notes.  The document was therefore filed with the district court and is part of the record on appeal, and we deny the motion to strike.

Although an affidavit supporting a search-warrant application carries a presumption of validity, a search warrant may be voided, and any evidence obtained under the warrant suppressed, if the court finds that the affiant knowingly, or with reckless disregard for the truth, omitted material facts from the affidavit.  State v. Doyle, 336 N.W.2d 247, 250 (Minn. 1983); see also Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978) (holding that inclusion of false statement in affidavit may invalidate warrant).  If the affidavit makes a knowing or reckless omission of material facts, the court must supply the omitted facts and decide whether the modified affidavit establishes probable cause.  Doyle, 336 N.W.2d at 250.

The Guys argue that the deputy omitted material information because the affidavit failed to state that JRG did not see drugs when she was in her parents' bedroom two days earlier.  We disagree that the exclusion of this information constitutes an omission.  The affidavit provides affirmative evidence of ongoing drug activity and accurately states that JRG observed items believed to be used for selling or ingesting drugs that were still present in the bedroom two days before issuance of the warrant.  The deputy was not required to add negative evidence of drug use or to list what JRG did not see.  Further, even if the exclusion amounted to an omission, adding the designated statement to the affidavit would not negate the finding of probable cause.

The Guys also argue that the deputy's affidavit misrepresented material information that JRG provided to the Rochester police officer.  A defendant may challenge the validity of an affidavit supporting a search warrant by showing that an affiant intentionally or recklessly misrepresented information material to establishing probable cause.  Franks, 438 U.S. at 155-56, 98 S. Ct. at 2676;State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989).  A misrepresentation is material if probable cause no longer exists without the statement, but an innocent or negligent misrepresentation is insufficient to invalidate a search warrant.  Moore, 438 N.W.2d at 105.

We conclude that the deputy did not misrepresent material information in his affidavit.  The Guys' attorney submitted an affidavit to the district court stating that he spoke to JRG, and she said that she did not tell the officer that she had observed "hundreds" of bags of marijuana in her parents' bedroom, as stated in the affidavit, but that she believed she had told the officer that she had seen "lots of empty bags" in her parents' bedroom the week before she gave her statement.  The district court found that the Guys failed to establish a material difference between the information in the affidavit and the information provided by JRG.  The record supports the determination.  JRG's handwritten document includes the "baggies of marijuana" that were still in the Guys' bedroom a week before issuance of the search warrant.  Although the specific number of baggies was not stated, the district court received the list into evidence following the stipulated-facts trial, and could consider that evidence in determining the validity of the warrant.  At best, the evidence suggests that the deputy overstates JRG's comments by linking and quantifying her report of "lots of empty bags" and "the baggies with marijuana" that she saw in her parents bedroom.  But in the context of the extensive and detailed information in the affidavit supporting the warrant, an overstated quantification of the number of bags of marijuana is not a material misrepresentation.

Affirmed; motion denied.