State of Minnesota, Respondent, vs. Frederick Peterson, Appellant.

State of Minnesota, Respondent, vs. Frederick Peterson, Appellant. A06-0338, Court of Appeals Unpublished, August 7, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-338

 

State of Minnesota,

Respondent,

 

vs.

 

Frederick Peterson,

Appellant,

 

Filed August 7, 2007

Affirmed

Randall, Judge

 

Wadena County District Court

File No. K5-03-623

 

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jon Edin, Wadena County Attorney, 415 Jefferson Street South, Wadena, MN 56482 (for respondent)

 

John M. Stuart, Minnesota State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant Frederick Peterson challenges his conviction of two counts of first-degree controlled-substance offense, including possession and aiding and abetting in the manufacture of methamphetamine, and possession of a firearm by an ineligible person.  Appellant argues (1) that the search warrant was not supported by probable cause; and (2) because his prior drug conviction was a misdemeanor, which is not a "crime of violence" disqualifying a person from possessing a firearm, he should not have been convicted of that offense.  We affirm.

FACTS

            On November 22, 2003, Lois Nelson met with appellant Frederick Peterson in his garage; Nelson testified that she went to appellant's residence in order to find her former boyfriend, Jim Grewing, who regularly used methamphetamine.  Nelson testified that she had previously used methamphetamine regularly but that she had not used in more than two years.  She also testified that based on her prior experiences in seeing the manufacturing process, it looked like appellant "was filtering methamphetamine."  She stated that she talked to appellant about how manufacturing methamphetamine would catch up to him.  And Nelson testified that appellant replied that "he plays for life.  Or keeps" and that she felt scared; "[appellant] said thatsaid something aboutlike a threat to me against my life."  Later that evening, Nelson called law enforcement to report that she believed appellant was filtering methamphetamine inside his garage.  At trial, Nelson articulated her reasons for reporting appellant to the police: "For my protection.  Plus, to help stop the production of [methamphetamine]." 

            The chief deputy sheriff, Steve Young, interviewed Nelson on November 22, 2003, and based on the information she provided, Young secured a search warrant for appellant's residence and garage.  On November 23, law enforcement executed a search warrant at appellant's residence and detached garage, finding items consistent with the manufacture of methamphetamine and two firearms.  In appellant's residence, the police found smoking pipes commonly used for inhaling marijuana or methamphetamine; a receipt from November 1, 2003, for the purchase of three 48-packs of Sudafed; two Ziploc bags with white powder residue (which tested positive for methamphetamine); and a .22-caliber semiautomatic Winchester rifle in the bedroom of appellant's son.  In appellant's garage, the following was recovered:  Articles consistent with the manufacture of methamphetamine, including various chemicals, solvents, glassware, and coffee filters; and a Winchester 30-30 lever-action Ranger rifle.  

In an amended complaint, appellant was charged with two counts of first-degree controlled-substance offense, including possession of methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 2(1)(a), 3(b), 609.11, subd. 5 (2002); and manufacture of methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 2a(a), 3, 609.05, 609.11 (2002).  Appellant was also charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 609.165, subd. 1b(a) (Supp. 2003).  Appellant moved to suppress evidence, arguing that the search warrant was deficient.  The district court denied appellant's motion. 

            Respondent introduced Spreigl evidence that on January 9, 1998, appellant possessed methamphetamine at his residence and was convicted of felony fifth-degree controlled-substance crime.  Additionally, respondent introduced Spreigl evidence of a 2004 incident:  As a result of a report from a Wal-Mart employee regarding appellant's excessive purchases of Sudafed, law enforcement searched appellant's car and residence, finding numerous items used to manufacture methamphetamine. 

            After the jury trial, appellant was found guilty of all three counts.  The district court sentenced appellant to 86 months for aiding and abetting the manufacture of methamphetamine and to a consecutive 60-month sentence for possession of a firearm by an ineligible person.      This appeal follows.

D E C I S I O N

I.

            Appellant argues that the district court erred by approving the search warrant for his residence and garage because the affidavit in support failed to aver the reliability of the informant or to corroborate the information provided by the informant.  In reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in suppressingor failing to suppressthe evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  We review the district court's factual findings under the clearly erroneous standard, but the district court's legal determinations are reviewed de novo.  State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).

A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.  See U.S. Const. Amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2002); see also State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).  "A magistrate's determination of probable cause should be paid great deference by reviewing courts and a reviewing court should not review that determination de novo."  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)).  We review the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  Substantial basis in this context means 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) (quotation omitted).  Whether probable cause exists is determined under the totality-of-the-circumstances test:

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 . . . 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 Gates, 462 U.S. at 238, 103 S. Ct. at 2332).  Our review is limited to information contained in the affidavit in support of the warrant presented to the district court.  See Novak v. State, 349 N.W.2d 830, 831 (Minn. 1984).

            Here, appellant challenges the reliability of the informant, arguing that the informant, Nelson, was a member of the criminal sub-culture, rather than a citizen witness, due to the reference made to informant's past methamphetamine use and exposure to its manufacture. 

In a search-warrant application based on an informant's tip, the informant must be credible and the reliability of an informant cannot be assumed.  State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978).  "[S]tatements from citizen witnesses, as opposed to criminal informants, may be presumed to be credible."  State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999).  In contrast, if an informer is considered a member of the criminal sub-culture, her information must be corroborated.  See Siegfried, 274 N.W.2d at 114-115.  However, "[t]he fact that the informant . . . did not qualify as a citizen informant of presumed reliability does not mean that the informant was an informant of doubtful reliability from the criminal subculture."  State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).  That is, "each informer is different" and "all of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis."  Id. 

Here, the search warrant was based on recent (within a day), first-hand observations, related by Nelson in a face-to-face interview with Chief Deputy Young.  The affidavit asserted that informant Nelson was known to affiant, and Nelson was repeatedly named in the affidavit.  In his affidavit, Chief Deputy Young did not specifically describe Nelson as a concerned citizen or a reliable informant.  However, the affidavit does state the following: "Affiant is aware that in the past, Lois Nelson used methamphetamine drugs.  Affiant is aware that Lois Nelson had been exposed to the processes, equipment, and supplies used in the manufacturing of methamphetamine."  Appellant argues that Nelson's drug use and familiarity with the manufacturing process render her a member of the criminal sub-culture, and thus her information needs corroborating.  However, a reasonable magistrate could perceive these circumstances (her familiarity with the manufacturing process) as having the effect of enhancing her knowledge and therefore her credibility. 

There are other factors that support Nelson's credibility, such as her motive in reporting appellant's activities to the police.  "[A]ny circumstances which suggest the probable absence of any motivation to falsify and an apparent motive for supplying the information are relevant facts."  McCloskey, 453 N.W.2d at 704 (citation and quotation omitted).  "Where an informant voluntarily comes forward (without having first been arrested) to identify a suspect, and in the absence of a motive to falsify information, the informant's credibility is enhanced."  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  Here, the affidavit suggests that Nelson's motive included protection from harm; she indicated that she felt threatened by appellant's cautionary response that "he plays for keeps."  Furthermore, Nelson was a named informant who could be held accountable and suffer legal consequences if she falsely reported this crime.  As respondent notes, "[B]y allowing law enforcement to name her in the warrant, Nelson exposed herself to retaliation by the defendant and his associates, in addition to the criminal sanctions that she could face if she provided false information." 

Respondent argues that "[i]t is this threat of criminal or other sanctions that affords [Nelson] more credibility than an informant providing the information anonymously without the possibility of any recourse by law enforcement."  See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) ("One who voluntarily comes forward and identifies herself is more likely to be telling the truth because she presumably knows that the police could arrest her for making a false report.").  Under Minnesota law, a person who informs a law-enforcement officer that a crime has been committed or "otherwise provides information to an on-duty peace officer . . . regarding the conduct of others, knowing that it is false and intending that the officer shall act in reliance upon it" is guilty of falsely reporting a crime.  Minn. Stat. § 609.505, subd. 1 (2002).  By reporting information about appellant's illegal activities, Nelson's intention was clearly to induce reliance on that information by law enforcement.

Appellant argues that there was not sufficient corroboration of Nelson's statements to bolster her credibility as an informant; he relies on State v. Gabbert, 411 N.W.2d 209 (Minn. App. 1987), and State v. Albrecht, 465 N.W.2d 107 (Minn. App. 1991).  Unlike the facts in Gabbert and Albrecht, in this case the informant was not anonymous or unnamed in the warrant.  Also, Nelson's information did not likely require corroboration, because she was not a "criminal."  See McCloskey, 453 N.W.2d at 703 (stating that just because an informant does not quality as a citizen informant of presumed reliability does not mean that the informant's reliability was doubtful or that she was from the criminal subculture). 

Assuming, without deciding, that corroboration was required here, the affiant was able to corroborate some information, such as details concerning the location of appellant's residence, including the fact that there was a house and an unattached garage on the property.  "[C]orroboration of even minor details can ‘lend credence' to the informant's information where the police know the identity of the informant."  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quotation omitted).  Nelson named the appellant and identified his property:  "22396 270th Street and located one mile south and about three fourths mile west of Nimrod, Minnesota."  Chief Deputy Young confirmed this with his knowledge that the location Nelson described was actually where appellant (the person that Nelson named) lived.  Nelson also told the chief deputy that the land had a residence and a garage, which the deputy knew to be true. 

In viewing the totality of the circumstances, the district court's decision to issue the warrant was supported by probable cause:  Nelson cannot really be called a member of the criminal subculture; Nelson did not have to go to the police, i.e., she was not receiving any kind of benefit from this; Nelson stated that she was reporting appellant because she felt threatened; Nelson was not anonymous and was named in the warrant (which means that retaliation is a factor and also that she could be subject to false reporting of a crime); Nelson knew what manufacturing meth looked like; and Nelson observed appellant's activities first-hand the day before her interview (close in time).  See McCloskey, 453 N.W.2d at 704 (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)) (stating that "the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants").

II.

Appellant argues that the district court erred under Minn. Stat. § 609.165, subd. 1b (Supp. 2003), by determining that appellant was subject to a firearm restriction due to a prior felony drug conviction.  Appellant argues that the conviction was later converted to a misdemeanor drug conviction.  Statutory construction is a question of law, which this court reviews de novo.  State v. Stewart, 624 N.W.2d 585, 588 (Minn. 2001).  The purpose of all statutory interpretation is to discern the intention of the legislature.  Minn. Stat. § 645.16 (2002).  Words and phrases must be construed according to their common meaning unless they have otherwise acquired a technical or special meaning.  Id. § 645.08(1) (2002).

Appellant was convicted of being a felon in possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b, which provides:  "Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony . . . ."  (Emphasis added.)  A "crime of violence" includes violations of "chapter 152 (drugs, controlled substances)."  Minn. Stat. § 624.712, subd. 5 (Supp. 2003).

            In 1998, appellant was convicted of a felony fifth-degree controlled-substance crime.  Appellant successfully completed his probation and was discharged on July 11, 2000.  The discharge order deems the offense, once discharged successfully from probation, a misdemeanor pursuant to Minn. Stat. § 609.13.  The order also tells appellant not to "ship, transport, possess, or receive a firearm until 10 years have elapsed since you have been restored to civil rights and during that time you are not to have been convicted of any other crimes of violence."  Appellant failed to follow the discharge order, as law enforcement found two firearms on his property on November 23, 2003.   Appellant was then charged and convicted of ineligible person in possession of firearms (based upon his 1998 "crime of violence" conviction), in violation of Minn. Stat. § 609.165, subd. 1b(a).

Appellant argues that in 1998 he did not commit a "crime of violence" for purposes of Minn. Stat. 609.165, subd. 1b, because the definition is limited to felony convictions.  Appellant claims that his conviction was not a "felony conviction," because his drug conviction was later deemed a misdemeanor.  This court has already decided this issue in State v. Anderson, which rejected the argument that appellant makes here.  720 N.W.2d 854 (Minn. App. 2006), aff'd (Minn. Jun. 14, 2007).  In Anderson, this court based its reasoning on the Minnesota Supreme Court's decision in State v. Moon, 463 N.W.2d 517 (Minn. 1990).

This court determined in Anderson that the defendant, who had previously been convicted of second-degree burglary, had committed a "crime of violence" for purposes of the statute, even though it later was converted to a misdemeanor.  Anderson, 720 N.W.2d at 860.  The Andersondecision first examined the plain language of Minn. Stat. § 624.712, subd. 5, concluding that "the plain language of the firearm prohibition statute supports its application to appellant:

[T]he statute proscribes possession of firearms by "[a]ny person who has been convicted of a crime of violence," including a felony conviction of second-degree burglary.  Here, appellant "has been convicted" of felony second-degree burglary.  His conviction was later deemed a misdemeanor, but that does not change his underlying conviction for the purposes of the statute.

 

Anderson, 720 N.W.2d at 860-61 (citations omitted).  The Moon court held that "the definitions of the offenses listed as crimes of violence in section 624.712, subdivision 5, relate to the elements of the offense for which the defendant was originally convicted rather than the disposition subsequently imposed by the trial judge."  Moon, 463 N.W.2d at 521.  The same reasoning applies to this case, except appellant's crime was a section 152 drug offense, rather than burglary.  Both crimes are listed under the statute defining crimes of violence.  Minn. Stat. § 624.712, subd. 5. 

            The court in Anderson also addressed the legislative intent underlying the firearm prohibition statute and rejected appellant's argument that the 2003 amendments altered the holding in Moon.[1]  The court noted that the supreme court has determined that the statute is "designed to protect the public safety by keeping firearms out of the hands of convicted criminals who have committed crimes which, in the legislature's judgment, are indications of future dangerousness" and stated that the revised definition of "crime of violence" does not suggest a change in this policy.  Anderson, 720 N.W.2d at 861 (quoting Moon, 463 N.W.2d at 520).  The Andersoncourt reasoned,

[i]f the legislature intended to override Moon, it could have included a provision in its 2003 amendments to expressly indicate that it did not intend for those convicted of felonies which are later deemed to be misdemeanors to be prohibited from possessing firearms.  In light of the supreme court's holding in Moon, and the plain language and purpose of the firearm prohibition statute, we conclude that appellant was subject to prosecution under the statute.

 

Anderson, 720 N.W.2d at 861. 

            Appellant acknowledges that his argument was rejected by the Anderson court but states that he "respectfully disagrees with the Anderson decision" and notes that the Minnesota Supreme Court has granted petition for review in Anderson.  On June 14, the Minnesota Supreme Court affirmed this court's Anderson decision.  State v. Anderson, ___ N.W.2d ___, 2007 WL 1704119 (Minn. 2007). 

            The district court did not err when issuing the warrant.  The district court properly applied the firearm prohibition statute.

Affirmed.

 

 

[1] In 2003, the Minnesota Legislature amended Minn. Stat. § 624.712, subd. 5 (2002).  2003 Minn. Laws, ch. 28, art. 3, §§ 7, 12.  Under the amended statute, all the crimes listed are felony convictions whereas under the previous version, only some of the crimes were felonies.  Compare Minn. Stat. § 624.712, subd. 5 (2002) with Minn. Stat. § 624.712, subd. 5 (Supp. 2003).