Opinion
No. C5-01-929
Filed February 12, 2002.
Appeal from the District Court, Scott County, File No. 9920996.
Mike Hatch, Attorney General, and Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, First Assistant County Attorney, (for respondent)
Thomas A. Volk, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant disputes the trial court's denial of his motion to suppress the fruit of a search and seizure by warrant, arguing that the issuing magistrate did not have a substantial basis to find probable cause to search his apartment. Because the magistrate was presented with adequate information to permit a finding of probable cause, we affirm.
FACTS
On October 14, 1999, an agent with the Southwest Metro Drug Task Force (SMDTF) applied for, obtained, and executed a search warrant on appellant Steven Frisch's residence. The agent presented to the magistrate evidence of (1) the agent's receipt of a concerned citizen's report that appellant was dealing drugs and that appellant's basement apartment in the three-apartment building produced a large amount of short-term traffic; and (2) the occurrence of four garbage searches conducted as a result of the citizen's report and producing seeds and stems, which tested positive for marijuana, "7 plastic baggies, and corners from baggies, which tested positive for cocaine * * *, 47 baggies with the corners removed, an empty box of Glad 150-count sandwich bags," and documents with appellant's name and address. On that same day, the warrant was granted and executed. The agents found approximately 110 grams of cocaine, marijuana, a scale, and drug paraphernalia in appellant's basement residence.
The record is unclear whether the agents received reports from one or two concerned citizens.
Appellant was charged with one count of first-degree possession of a controlled substance with intent to sell and one count of first-degree possession of a controlled substance. At a contested omnibus hearing, appellant challenged the sufficiency of the probable cause for the search warrant and moved to suppress the evidence seized. The trial court denied the motion, finding that (1) the citizen informer was presumptively reliable; (2) appellant did not present any information to rebut this presumption; (3) agents corroborated the informant's information; and (4) even absent the informant's information, the agent's independent evidence found in the garbage provides a sufficient basis for probable cause. Appellant entered into a Lothenbach stipulation and was found guilty and sentenced to 86 months in prison. This appeal followed.
A person is guilty of a first-degree controlled substance crime if "the person unlawfully sells * * * ten grams or more containing cocaine." Minn. Stat. § 152.021, subd. 1(1) (2000).
A person is guilty of a first-degree controlled substance crime if "the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing cocaine." Id., subd. 2(1) (2000).
DECISION
Appellant contends that the affidavit lacks sufficient information for a probable cause finding that drugs would be found at his apartment. A search warrant shall be issued only upon a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2000). To determine whether the issuing court had a substantial basis for finding probable cause to grant a search warrant, appellate courts employ the "totality-of-the-circumstances" test:
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 him, 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.
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)). Under this test, each component of the affidavit must be read together and not in isolation. Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088 (1984). There must be a direct connection, or nexus, between an alleged crime and the particular place to be searched, especially when the focus of a search at a residence is to find evidence of drug activity. State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998).
In determining whether a warrant is supported by probable cause, an appellate court is to afford great deference to the trial court's determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). The appellate court's review is limited to "whether the evidence viewed as a whole provided a `substantial basis' for the [m]agistrate's finding of probable cause." Upton, 466 U.S. at 732-33, 104 S.Ct. at 2088. The resolution of doubtful or marginal cases of probable cause for a search warrant "should be largely determined by the preference to be accorded to warrants." U.S. v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746 (1965). And appellate courts are not to invalidate warrants by "interpreting the affidavit in a hypertechnical rather than a commonsense, manner." State v. Anderson, 439 N.W.2d 422, 425 (Minn.App. 1989) (quoting Ventresca, 380 U.S. at 109, 85 S.Ct. at 746), review denied (Minn. June 21, 1989).
Appellant specifically argues that the affidavit presented in this case is deficient in two ways: (1) it contains no information to establish the credibility of the informant; and (2) it contains no information regarding how the garbage was found or that the items found belonged to appellant and not one of the other residents in the apartment building.
A first-time citizen informant is presumed to be reliable. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). The concerned citizen identified appellant's basement apartment as the source of the short-term traffic. The citizen's report did not suggest knowledge of any details of drug dealing, to suggest the informant's personal involvement. See State v. Krech, 399 N.W.2d 203, 206 (Minn.App.) (court found the incessant traffic pattern a very significant fact to establish probable cause for drug dealing), aff'd as mod. on other grds., 403 N.W.2d 634 (Minn. 1987); see also State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985) (informant's personal observations of incriminating conduct is sufficient to support probable cause where informant had previously provided reliable information). The affidavit did not specifically aver that the "concerned citizen" was a first-time informant, but even if the citizen report is not presumptively reliable, the informant's reliability was established by sufficient police corroboration of the information supplied. See State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978) (recognizing that when the police can corroborate part of the informer's tip as truthful, it suggests that the entire tip may be reliable).
The agents corroborated the citizen's report of appellant's drug dealing and short-term traffic from appellant's basement apartment by (1) confirming that appellant did reside at the identified apartment building in the basement apartment; and (2) discovering drugs and documents with appellant's name and address in the apartment building's garbage.
Although the affidavit may lack the desired specificity on the informants' reliability and the precise findings from the garbage searches, the report and the garbage searches do provide probable cause as well as a nexus between the suspected drug dealing and his basement apartment. Moreover, as noted before, the law demands that we interpret the affidavit in a common sense manner, not hypertechnically. Anderson, 439 N.W.2d at 425 (quoting Ventresca, 380 U.S. at 109, 85 S.Ct. at 746). A common sense reading of the affidavit suggests that there is a "fair probability that contraband or evidence of a crime" would be found in appellant's apartment, and not the two other apartments in the building. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. And if the showing of cause is considered marginal, that category of cases of probable cause "should be largely determined by the preference to be accorded to warrants." Ventresca, 380 U.S. at 109, 85 S.Ct. at 746.
We are satisfied after a review of the record that there is no occasion here to reverse the magistrate's finding of probable cause to issue a search warrant. We are mindful of the potential for error in making judgments based on searches of an apartment building's garbage, but find that probable cause is adequately determined here because there were only three apartments in the building, a citizen informer specifically identified appellant's basement apartment as the place were short-term traffic occurred, and the garbage searches produced drugs and documents with appellant's name and address. Taking into account the great deference given to the magistrate's findings and the preference for warrants, we conclude that the trial court properly denied appellant's motion to suppress the evidence seized because the magistrate had a substantial basis for determining that there was probable cause for the proposed search.