State of Minnesota, Respondent, vs. Dorutha Nichallos Foster, Jr. a/k/a Dorutha Richardson, Appellant.

State of Minnesota, Respondent, vs. Dorutha Nichallos Foster, Jr. a/k/a Dorutha Richardson, Appellant. A06-818, Court of Appeals Unpublished Decision, October 16, 2007.

This opinion will be unpublished and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

A06-818

 

State of Minnesota,
Respondent,
 
vs.
 
Dorutha Nichallos Foster, Jr.
a/k/a Dorutha Richardson,
Appellant.

 

Filed October 16, 2007

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 05035495

 

 

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

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Chief Judge Toussaint, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of fifth-degree controlled-substance crime, arguing that the district court erred by denying his motion to suppress evidence because the search warrant was not supported by probable cause.  We affirm.

FACTS

 

On June 6, 2005, Officer Blayne Lehner obtained a no-knock search warrant for appellant Dorutha Foster's apartment at 2908 16th Avenue South.  Officer Lehner stated in the search-warrant affidavit that he

received information from a Confidential Reliable Informant (CRI) that the occupant, Dorthua Foster, who lives inside 2908 16th [A]venue [S]outh Apt. #4, which is a multistory apartment building, was seen dealing large amounts of suspected crack cocaine and was in the possession of a 32 caliber silver revolver handgun within the last 72  hours. 

 

He also attested that the confidential informant "has a broad knowledge of narcotics and the illicit drug trafficking trade" and has provided information to Officer Lehner in the past that "has proven to be reliable and factual" and has resulted in the seizure of controlled substances.  In addition to giving Foster's physical description to Officer Lehner, the confidential informant stated that "Foster is the primary dealer of the illegal narcotics out of the address."  According to the search-warrant affidavit, during surveillance conducted on Foster's apartment building, Officer Lehner observed heavy pedestrian and vehicle traffic consistent with drug trafficking.  "[P]eople approach the front door of the apartment complex and get let into the complex[,] . . . return and exit the apartment complex minutes later and then leave the area."  Officer Lehner also checked a law-enforcement computer system and determined that Foster was an arrested party in five cases between 1998 and 2005, all of which involved the recovery of either controlled substances, firearms, or both.  Based on the information contained in the affidavit, Officer Lehner believed that illegal controlled substances were being stored, packaged, and distributed from Foster's apartment. 

            Officers executed the search warrant on June 9, 2005, and seized crack cocaine, marijuana, and a firearm.   Foster was arrested and subsequently charged by complaint with fifth-degree controlled substance crime, a violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2004).

            Foster moved to suppress the evidence seized during the search of his apartment, arguing that the search warrant was not supported by probable cause.  The district court denied this motion, and Foster subsequently was convicted of the charged offense.  This appeal followed. 

D E C I S I O N

 

            When we review a pretrial order on a motion to suppress evidence, we independently review the facts and determine whether the district court erred as a matter of law in admitting the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  We give great deference to a magistrate's evaluation of the sufficiency of an affidavit in support of a search warrant.  State v. Martinez, 579 N.W.2d 144, 146 (Minn. App. 1998), review denied (Minn. July 16, 1998).  On review, resolution of a doubtful or marginal case should be determined in favor of the decision to issue the search warrant.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).

Both the United States and Minnesota constitutions provide that a warrant shall not issue absent 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.  Albrecht, 465 N.W.2d at 108.  On a finding of probable cause, a neutral and detached magistrate may issue a search warrant.  Minn. Stat. §§ 626.08, .11(a) (2004); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).  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.  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 [the magistrate], 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 district court's determination of probable cause to issue a search warrant to determine whether there is a substantial basis to conclude that probable cause exists.  State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005); Harris, 589 N.W.2d at 788.  "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).  To conduct our review, "[w]e must not look to the information that the police actually had, but rather to the information presented in the affidavit to the magistrate who issued the search warrant."  State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996).  We do not review each component of the search-warrant application and affidavit in isolation.  Id. Rather, we determine the sufficiency of the application from its totality without "engaging in a hypertechnical examination of the affidavit."  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quotation omitted).    

Foster first argues that the search-warrant affidavit did not establish a time frame for illegal activity.  The Minnesota Supreme Court has expressed "strong disapproval of the omission of time from an affidavit in support of a search warrant application," but under the totality-of-the-circumstances test, "such an omission is not per se fatal."  Harris, 589 N.W.2d at 789 (quotation omitted) (holding that approximate timing of actions could reasonably be inferred from context of affidavit).  

The search-warrant affidavit at issue here states that Foster was seen "dealing large amounts of suspected crack cocaine and was in the possession of a 32 caliber silver revolver within the last 72 hours."  It further states that "the [confidential informant] told [Officer Lehner] that when they had been inside Foster's apartment within the last 72 hours, the [confidential informant] observed Foster in possession of a 32 caliber silver handgun."  Foster asserts that only the possession of the firearm was observed "within the last 72 hours," not any illegal activity.  But the district court concluded that the search-warrant application "contained information from a [confidential informant] who recently saw crack cocaine and a gun inside [Foster's] apartment."

The reference to "within the last 72 hours" is capable of two reasonable interpretations, one of which is that this is the time frame during which the confidential informant observed Foster both selling crack cocaine and in possession of a firearm.  This interpretation of the affidavit's language provides a substantial basis for the issuing magistrate to conclude that probable cause exists, a conclusion to which we afford great deference.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); see State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (suggesting "that the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants" (quotation omitted)).  Although more precise language in the affidavit would be preferable because it would eliminate any ambiguity, the district court's interpretation of the search-warrant affidavit was reasonable.  When considered in its totality, the information in the affidavit establishes a time frame for the illegal activity.     

Foster also argues that the search warrant is deficient because it did not establish the confidential informant's reliability.  All facts relating to the confidential informant should be considered in weighing reliability.  State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).  A confidential informant's reliability may be demonstrated if the confidential informant previously has given officers correct information, but the affidavit must explicitly state this to be the case.  Wiley, 366 N.W.2d at 269 n.1.  The level of detail in a confidential informant's report and whether the information provided is independently corroborated by law-enforcement officers are important factors in evaluating a confidential informant's reliability.  State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000), review denied (Minn. July 25, 2000); see also Wiley, 366 N.W.2d at 269 (stating that corroboration of even minor details can "lend credence" to confidential informant's information).  "Recent personal observation of incriminating conduct" is a preferred basis for a confidential informant's knowledge.  Wiley, 366 N.W.2d at 269. 

The district court concluded that the confidential informant "has an established track record of reliability based on the [confidential] informant's past successful dealings with law enforcement personnel."  The affidavit states that the confidential informant "has broad knowledge of narcotics and the illicit drug trafficking trade" and has "provided information to [Officer Lehner] in the past that has proven to be reliable and factual" and has "resulted in the seizure of amounts [of] narcotics."  This is precisely the type of information that the Minnesota Supreme Court has favorably acknowledged to establish reliability.  See id. at 269 n.1 (observing that while more detail is preferable, statement that informant "has been used over several years successfully" was sufficient to permit an inference that informant provided reliable information in the past).  Contrary to Foster's argument, Wiley does not limit what may be considered reliable information to that which leads to an arrest or conviction; rather, Wiley cites an arrest or conviction as an example of what may prove the accuracy of a confidential informant's previously supplied information.  Id.  Information contained in the instant search-warrant affidavit supplies an ample basis for establishing the reliability of the confidential informant.

Foster also argues that the search-warrant affidavit does not establish the confidential informant's basis of knowledge.  But the affidavit explicitly states how the information supplied by the confidential informant was obtained.  The confidential informant was in Foster's apartment no more than 72 hours before Officer Lehner received the search warrant.  There, the confidential informant observed Foster selling "large amounts of suspected crack cocaine."  The confidential informant's personal observation, along with his or her familiarity with the drug trade, supplies a solid basis of knowledge that controlled substances were inside Foster's apartment. 

Notwithstanding Foster's claim that the confidential informant's information was not corroborated, the district court found that Officer Lehner "performed an[ ] independent investigation" that "corroborated aspects of the [confidential informant's] information."  This determination is supported by the search-warrant affidavit, which states that Officer Lehner conducted surveillance on Foster's residence and observed heavy foot and vehicle traffic.  In Officer Lehner's experience, the activities he observed were consistent with the illegal sale of controlled substances.  Although Foster argues that the traffic to and from his eight-unit apartment building is not indicative of illegal activity in his apartment, we have held that observation of heavy traffic to and from a multiunit residential building is corroborative information that may assist in establishing probable cause to search a unit within the building.  State v. Krech, 399 N.W.2d 203, 206 (Minn. App. 1987), aff'd as modified, 403 N.W.2d 634 (Minn. 1987). 

Officer Lehner also checked Foster's criminal history and discovered that Foster had been arrested five times between 1998 and 2005, all of which involved controlled substances, guns, or both.  An arrest that does not result in a conviction can corroborate a confidential informant's information when the arrest involves an offense of the same general nature as the offense that the search warrant is seeking to uncover.  Carter, 697 N.W.2d at 205; State v. Conaway, 319 N.W.2d 35, 41 (Minn. 1982) (stating that criminal record can be corroborative of information to establish probable cause); State v. Lieberg, 553 N.W.2d 51, 56-57 (Minn. App. 1996) (finding defendant's entire history of criminal behavior helpful and properly considered as one factor in totality of relevant circumstances for finding probable cause).  Here, the number of Foster's arrests, the nature of those arrests, and their recency are corroborative of the information supplied by the confidential informant.

Taken as a whole, the search-warrant affidavit establishes a substantial basis to conclude that there was probable cause to search Foster's apartment.  Accordingly, the district court properly denied the motion to suppress evidence seized during the search authorized by the search warrant. 

Affirmed.