State of Minnesota, Respondent, vs. Juan Manuel Sevilla, Appellant.

State of Minnesota, Respondent, vs. Juan Manuel Sevilla, Appellant. A06-833, Court of Appeals Unpublished, June 26, 2007.

This opinion will be unpublished and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

A06-833

 

State of Minnesota,

Respondent,

 

vs.

 

Juan Manuel Sevilla,

Appellant.

 

Filed June 26, 2007

Affirmed

Harten, Judge*

 

Dakota County District Court

File No. K3-05-803

 

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

 

James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges his conviction of first-degree controlled substance crime, arguing that the district court erred by denying his motion for an in camera inquiry of the concerned citizen whose evidence led to appellant's conviction.  Because we see no error in the denial of the motion, we affirm.

FACTS

 

In March 2005, a police investigator contacted a drug task force agent (DTFA) and stated that a "concerned citizen" (CC) known to the investigator wanted to meet to discuss drug activity.  The CC provided his/her full name and date of birth but asked that identity be withheld for the safety of his/her family.  The CC reported that a person living alone in an apartment was dealing large amounts of cocaine, that this person drove a white pickup, and that, within the previous 72 hours, two kilos of cocaine were in the apartment.   The DTFA established the identity, residence, and vehicle of appellant Juan Sevilla.  A drug detection dog then indicated the presence of narcotics within the apartment.  Based on this information, the police obtained and executed a search warrant for the apartment.  The police found more than 25 grams of cocaine in appellant's apartment.[1]

Appellant was charged with first-degree controlled substance crime.  He moved for disclosure of the CC's identity or for an in camera inquiry of the CC; the district court denied his motion.  A jury found appellant guilty; he was sentenced to the presumptive 91 months' imprisonment.  He challenges his conviction, arguing that the district court erred in denying his motion for in camera inquiry of the CC.[2]

D E C I S I O N

 

"All that is needed to justify an in camera inquiry is a minimal showing of a basis for inquiry but something more than mere speculation by the defendant that examination of the informant might be helpful."  State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989). In Moore, "[t]he informant's information was reliable and was corroborated by . . . other evidence."   Id.  Here, the CC's information as to appellant's residence and vehicle was checked and found to be reliable; his information as to the presence of cocaine within the apartment was corroborated by a drug detection dog sniff. 

To obtain an in camera inquiry, "[t]he defendant's showing must be supported by the defendant's testimony or other evidence."  State v. Wessels, 424 N.W.2d 572, 575 (Minn. App. 1988), review denied (Minn. 6 July 1988).  In his motion for disclosure, appellant indicated that "[t]he identity of the [CC] is needed to show that additional information known by the police may not have been disclosed to the issuing magistrate." (Emphasis added).  On appeal, he argues that "[i]f the officer knew [the CC], there is reason to believe that the informant had a criminal record or was under investigation for a crime[]" and that the informant was "possibly involved with the alleged narcotics use and/or trade . . . ." (Emphasis added.)  This is not the "testimony or other evidence" required by Wessels.  See id.  It is rather the "mere speculation by the defendant that examination of the informant might be helpful" that Moore explicitly states is not a sufficient basis for an in camera inquiry.  438 N.W.2d at 106.

Appellant relies on State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976).  But Luciow is distinguishable.  In that case, the defendant presented evidence that the affidavit on which the warrant was based was false.  The affidavit asserted that the confidential informant had been proven reliable in the past by giving the police information that resulted in search warrants, convictions, and drug seizures; the defendant's former girlfriend testified that she was the confidential informant and that she had never previously provided information to the police.  Id. at 8-9, 240 N.W.2d at 836.  Here, appellant has made no showing that any statement in the affidavit is false; he has said only that he needs an in camera inquiry to determine if something might be false.  But to establish a basis for in camera inquiry, a defendant must either "mak[e] a prima facie showing challenging the veracity of a search warrant, or . . . mak[e] a prima facie showing that the informant may be a material witness at trial."  Wessels, 424 N.W.2d at 575.  There is no suggestion that the CC may be a witness at trial, and appellant has not made a prima facie showing challenging the veracity of the search warrant.

The district court did not err in denying appellant's motion for an in camera inquiry of the CC.

Affirmed.

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

[1]The police department criminalist who weighed the cocaine testified that its net weight was 192.2 grams.

[2] The only relief appellant seeks is remand for an in camera inquiry.  We infer that the denial of an in camera inquiry is his only issue on appeal.