Opinion
No. C0-99-1842.
Filed July 3, 2000.
Appeal from the District Court, Hennepin County, File No. 98-113032.
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
Barry V. Voss, Voss Hickman, P.A., (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Timothy Kielb appeals from a judgment convicting him of felon in possession of a pistol and receipt of stolen goods. He challenges the district court's pretrial order denying his motion to suppress evidence seized from the residence he shared with his father. Appellant argues that: (1) the search warrant affidavit failed to establish probable cause because it relied on information from an informant whose reliability was not established; (2) the affidavit failed to establish the necessary nexus with the residence; and (3) some of the information contained in the affidavit was stale. Finally, appellant argues that assertions that he had a record of assaults and was known to carry a handgun did not support the no-knock provision in the warrant. We affirm.
FACTS
On November 6, 1998, a search warrant was sought for the premises located at 6835 Colfax Avenue North, Brooklyn Center. The premises were occupied by appellant Timothy Kielb and his father. The warrant also authorized the search of Kielb's person and any vehicles on the premises or registered to him. The supporting affidavit stated Kielb was a burglary suspect and there was good reason to believe that a number of stolen items were located on the premises, including a Remington 7mm BDL bolt-action rifle.
The supporting affidavit of Officer Curtis Lund stated that the homes of Allen and Jeffrey Zeis had been burglarized on August 15 and 16, 1998. The subsequent police investigation developed two suspects, Randy A. Bakken and Kielb. Allen Zeis owned Zeis Construction and Bakken was an employee at the time of the burglaries. Bakken was a friend of Kielb and had gotten Kielb a job with Zeis Construction. According to the affidavit, Bakken was the only person outside the Zeis family who knew that Allen and Jeffrey Zeis would be gone the weekend the burglaries took place. The affidavit noted that Bakken and Kielb had extensive criminal histories, including burglary and theft.
The affidavit also stated that police had developed a confidential informant (CI) whose identity was known to Detective Hunt of the Coon Rapids Police Department. The CI had recorded telephone conversations with Kielb and Bakken, during which the two implicated themselves in the Zeis burglaries. The affidavit stated that the CI made arrangements with Kielb to deliver a .357 Magnum pistol in exchange for a 7mm Remington bolt-action rifle and cash on November 6, 1998. According to the CI, Kielb had purchased the rifle from Bakken for $300 and Bakken had stolen it from Angela Fischer of Aberdeen, South Dakota. In her report to police, Fischer listed the suspect in the theft of the rifle as Bakken, her ex-boyfriend.
The affidavit stated that the CI had called Kielb at a telephone number that police determined was listed to Kiebl's father at 6835 Colfax Avenue North in Brooklyn Center. The CI told detectives that Kielb changes vehicles frequently, buying them at auctions and then selling them without transferring vehicle titles. Affiant Lund stated that when he checked the driveway of the premises, he observed a blue Jeep that was registered to Metro Wholesale Auto and a bluish-gray four-door Buick LaSabre, the license plates of which were not visible. The search warrant also contained a "no-knock" provision and permitted a nighttime search based on Kielb's history of carrying a handgun and his past assaultive behavior, including assaults on police officers.
The search warrant was executed on November 6, 1998, at approximately 7:37 p.m. The police recovered the stolen 7mm Remington rifle from the bedroom in which Kielb was found. A complaint was filed in Hennepin County District Court, charging Kielb with being a felon in possession of a pistol and receiving stolen goods. Kielb moved to suppress the evidence obtained as a result of the search on the ground the search warrant was unsupported by probable cause. The district court denied the motion. Kielb waived his right to a jury trial and stipulated to the state's case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Following a bench trial, Kielb was found guilty, and the district court sentenced him to 32 months' imprisonment. This appeal follows.
DECISION
Kielb challenges the legality of the search warrant, arguing that it is unsupported by probable cause, fails to establish a nexus between the crime committed and his residence, and relies on stale information. Kielb contends that the evidence seized pursuant to the search warrant should be suppressed.
A search warrant may be issued only on a finding of probable cause as determined by a neutral and detached magistrate. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). A magistrate's determination of probable cause is to be paid great deference by a reviewing court and is not reviewed de novo. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). When examining the sufficiency of an affidavit, a reviewing court must look to the totality of the circumstances and not review each component of the affidavit in isolation. Id.
The issuing judge "is simply to make a practical, commonsense 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."
State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)). "[T]he resolution of doubtful or marginal cases should be `largely determined by the preference to be accorded to warrants.'" State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App. 1991) (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 2089 (1984) (quotation omitted)).
Kielb contends that the search warrant is unsupported by probable cause because the supporting affidavit failed to establish the credibility of the CI. "[T]he affidavit [supporting the warrant] must provide the magistrate with adequate information from which he can personally assess the informant's credibility." State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978). Kielb insists information supplied by the CI was uncorroborated by the police and, therefore, did not establish the CI's credibility.
Initially, we reject the state's argument that the CI's credibility can be presumed because she is a citizen informer. While the credibility of a so-called first-time citizen informer who has not been involved in the criminal underworld is generally presumed, "the affidavit must specifically aver that the informant is not involved in criminal activity." State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998) (citation omitted). Because the supporting affidavit does not specifically aver that the CI is not involved in criminal activity, the CI's credibility cannot be presumed on the basis of being a first-time citizen informer.
However, even though an informant may not qualify as a citizen informant, it "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). The reliability of an informant may be demonstrated by showing that: (1) the informant has a track record of giving reliable information; (2) the circumstances in the particular case suggest strongly that the informant's information is reliable; or (3) the details of the informant's tip "have been sufficiently corroborated so that it is clear the informant is telling the truth on this occasion." Seigfried, 274 N.W.2d at 114-15. Where the informant's identity is known to police, the reliability of the informant may be established by the corroboration of "even minor details" that lend credence to the supplied information. Ward, 580 N.W.2d at 71.
In this case, the affidavit stated that the identity of the CI was known to Hunt. By revealing her identity to Hunt, the CI's credibility was bolstered because she was presumably aware that she could be held accountable for her statements to Hunt, making it more likely that she was telling the truth. See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (determining informant who is not anonymous is more likely to be telling truth because he or she presumably knows police can arrest him or her for making false report).
The CI was also able to provide police with information regarding (1) the theft of a 7mm Remington rifle from Fischer, which occurred in South Dakota; (2) the fact that Bakken was listed as a suspect in that theft; (3) Kielb's vehicle-buying habits; and (4) Kielb's possible involvement in the Zeis burglaries. This information was corroborated by police. Hunt learned from Aberdeen police that a 7mm Remington rifle had been stolen from Fischer and that Bakken was listed as a suspect in that crime. Lund corroborated the CI's statement that Kielb changes vehicles frequently, buying cars from automobile auctions and then selling them without transferring titles, by personally observing a vehicle in the driveway of the Colfax address that was registered to an automobile wholesaler in Minneapolis. The statement by the CI that she had tape-recorded conversations with Kielb and Bakken in which they implicated themselves in the Zeis burglaries was corroborated by the fact that during the investigation of the Zeis burglaries, police had developed Kielb and Bakken as suspects. Both individuals had worked at Zeis Construction, and Bakken was the only person outside the Zeis family who knew that the victims were out of town at the time of the burglary. Lastly, police were able to determine that the telephone number used by the CI to arrange the weapons transfer was listed to Kielb's father at the Colfax address provided by the CI.
Although much of the information provided by the CI was of public record, we note that it was not easily obtainable. The CI's identity was known to police and the police were able to corroborate a number of details that, when examined together, lend credence to the information provided by the CI. We conclude that the circumstances suggest strongly that the CI's information was reliable and had been "sufficiently corroborated so that it [was] clear the informant [was] telling the truth on this occasion." Seigfried, 274 N.W.2d at 115.
Next, Kielb argues the warrant is legally insufficient because it fails to establish a nexus between the crime committed and the residence to be searched. Historically, Minnesota courts have required a direct connection, or nexus, between the alleged crime and the particular place to be searched. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). The magistrate's task is to make a practical, commonsense determination whether, given the circumstances set forth in the affidavit, "`there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).
Kielb's assertion that the affidavit sets forth "absolutely no information that any of the items listed in the search warrant could be found at the Colfax residence" is without merit. Kielb was suspected of being a felon in possession of a pistol and receiving stolen property. Solely by virtue of the proposed exchange of weapons, as reported by the CI, the magistrate could reasonably conclude that there was a fair probability that Kielb, a felon, would be in possession of a weapon at the Colfax address. The information provided by the CI, and corroborated by police, would also allow the issuing magistrate to reasonably conclude that one of the weapons involved was the rifle reported stolen by Fischer. The information contained in the affidavit established a direct nexus between Kielb and the items listed in the warrant, and demonstrated a fair probability that those items would be found at the Colfax address.
Kielb contends that the information contained in the affidavit is stale because there is no time period associated with it. We disagree. In examining whether the information supporting a search warrant is stale, a number of factors are examined, which include whether the criminal activity is ongoing, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). Here, the affidavit states that the CI "made arrangements with Kielb to deliver the .357 Magnum pistol to Kielb's residence on 11-06-98, after 1600 hours." The CI was to bring the .357 Magnum to Kielb's home and make the exchange for the Remington rifle. The proposed transaction indicated a strong likelihood that Kielb, a felon, would be in possession of weapons and that a rifle matching the description of the one stolen from Fischer would be at the Colfax address. The magistrate could reasonably conclude that the alleged criminal activity was "ongoing." The information contained in the affidavit was not stale.
Finally, Kielb argues that the supporting affidavit failed to set forth with particularity the basis for a no-knock entry provision in the warrant. He contends that the search warrant affidavit contains no facts supporting a no-knock provision.
The United States Supreme Court has held recently that
to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement--* * * is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.
Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S.Ct. 1416, 1421-22 (1997) (citations omitted). Despite the Richards decision, Minnesota courts hold that the police must make a "strong showing that an unannounced entry is a necessity." State v. Martinez, 579 N.W.2d 144, 147 (Minn.App. 1998) (citing State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978)), review denied (Minn. July 16, 1998).
Kielb's argument seeks to separate the supporting affidavit from the search warrant application. But the warrant application, along with the supporting affidavit, is to be considered when determining the necessity of a no-knock entry. See id . (examining search warrant application and supporting affidavit in determining whether no-knock entry provision in search warrant was necessary).
Here, the search warrant application and affidavit stated that an unannounced entry was necessary because "Kielb is known to carry a handgun on his person and has a history of assaultive behavior." In support of a nighttime search, the application also stated that
Kielb is a convicted felon who is in possession of a firearm. Kielb has a previous history of arrests and convictions for assault, and assaults on police officers.
The affidavit stated that it was based on Lund's review of police reports and interviews with officers "and individuals with knowledge."
Given Kielb's criminal history, which includes assaults on police officers, and that he was likely to be in possession of a firearm because the proposed transaction with the CI involved the exchange of weapons, the police demonstrated a strong showing that officer safety necessitated an unannounced entry. The police need not state in detail the procedures used to conduct a background check, and Kielb fails to direct us to any such requirement. In examining the totality of the circumstances and the nature of the alleged crimes, we conclude that the search warrant application and supporting affidavit support the necessity of an unannounced entry.