Opinion
No. C1-02-1084
Filed April 29, 2003.
Appeal from the Scott County District Court, File No. 2001-02955.
Mike Hatch, Attorney General, and Thomas J. Harbinson, Scott County Attorney, Jason W. Eldridge, Michael Groh, Assistant County Attorneys, (for respondent)
Steven J. Meshbesher, Meshbesher Associates, P.A., (for appellant)
Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges her conviction of first-degree possession of a controlled substance. Appellant alleges that (1) the search warrant for her residence was facially invalid; (2) the search warrant was not supported by probable cause; (3) there was not sufficient evidence to support the jury's verdict of guilty; and (4) her waiver of her Miranda rights was coerced. Because we conclude that (1) the warrant was not facially defective; (2) the warrant was based on adequate probable cause; (3) there was sufficient evidence to support appellant's conviction; and (4) appellant did not raise the issue of coercion before the trial court, we affirm.
FACTS
On February 7, 2001, Chris Dellwo, an agent for the Southwest Metro Drug Task Force, applied for and received a search warrant for the residence at 15111 Ensign Avenue South in Prior Lake. The residence was described in the affidavit as a brown house, with the numbers 15111 on the front of the attached three-car garage, located approximately one block south of Shepherd of the Lake Lutheran Church on Highway 13.
In his affidavit supporting the warrant application, Officer Dellwo stated that a confidential informant (CI) had told him within the preceding month that the CI had purchased cocaine from a Hispanic male named Eddie at the 15111 Ensign Avenue South address. In addition, Officer Dellwo stated that, within the prior 72 hours, a confidential reliable informant (CRI) accompanied another individual to 15111 Ensign Avenue South. The CRI's companion entered the house and purchased cocaine while the CRI waited outside. The CRI informed Officer Dellwo that the occupants of the house were named Linda and Eddie.
In order to verify the owners of the house at 15111 Ensign Avenue South, Officer Dellwo checked the records at the Scott County Auditor's Office. The records verified that appellant Linda LeBlanc owned the residence. Officer Dellwo also determined that a vehicle parked in the driveway was registered in appellant's name.
On February 9, 2001, while en route to execute the search warrant, Officer Dellwo realized that the residence was actually just beyond the Prior Lake city limits in Savage. There is no 15111 Ensign Avenue South in Prior Lake.
While setting up initial surveillance of the residence, law enforcement officers saw the vehicle registered in appellant's name, with a passenger matching appellant's description, pulling out of the driveway. The officers stopped the vehicle and, upon determining that the driver was a Hispanic male named Eduardo Salinas, informed appellant and Salinas that they had a warrant to search their persons and the residence at 15111 Ensign Avenue South. Appellant was handcuffed and transported to her house, which the officers then searched.
In the bathroom, the officers found a plastic bag containing a "white chunk substance" weighing 27.5 grams that field-tested positive for cocaine. In close proximity to the cocaine, officers found personal items belonging to appellant. Above a ceiling tile in the basement, the officers found $2,500 wrapped in dryer sheets inside two plastic bags.
Appellant was arrested and taken to the Scott County Jail. Prior to being questioned at the jail, appellant was read her Miranda rights. After stating that she understood her rights, appellant made incriminating statements, including admitting that she had used cocaine and she knew that there had been cocaine in the house in the past. Appellant was convicted by a jury of one count of first-degree possession of a controlled substance. This appeal follows.
DECISION 1. Search Warrant.
Generally, a search conducted pursuant to a warrant will be upheld where the warrant application sets forth probable cause and contains no material misrepresentations, and the warrant is properly executed. State v. Yaritz, 287 N.W.2d 13 (Minn. 1979); State v. Mollberg, 310 Minn. 376, 246 N.W.2d 463 (1976); State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976). Here, appellant contends that the search warrant was invalid because it was not based on sufficient probable cause. Specifically, appellant asserts that the warrant was facially invalid because the supporting affidavit misidentified the community where the appellant's house was located as Prior Lake when it was actually Savage. In addition, appellant claims that Officer Dellwo recklessly and/or intentionally misled the district court into thinking that the information concerning drug sales came from a reliable source, when reliability had not been established. We disagree.
A. Facial Validity of the Warrant.
For a warrant to issue, the court must find, within the warrant application and supporting affidavits, probable cause to believe that the contraband or evidence of a crime will be found in a particular place or on a particular person. See Minn. Stat. § 626.07(5) (2000); State v. Rosenthal, 269 N.W.2d 40 (Minn. 1978). Grounds for the application or probable cause for believing grounds exist for the search must be evident in the affidavit. Minn. Stat. § 626.10 (2000). The test for determining whether the warrant adequately described the premises is whether the description was sufficient to allow the executing officer to "locate and identify the premises with reasonable effort" with no "reasonable probability that [other premises] might be mistakenly searched." State v. Gonzales, 314 N.W.2d 825, 827 (Minn. 1982) (quoting United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979), cert. denied, 444 U.S. 871 (1979)).
In this instance, the warrant application contained a very specific description of the residence and an equally specific description of its location by a particular church. The only incorrect information was the name of the city. That error apparently arose from the records in the Scott County Auditor's Office, but it did not create a reasonable likelihood that another residence would be mistakenly searched when the same officer applied for and executed the search warrant. See United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998) (finding wrong street address not fatal to the warrant when the affiant was also the executing officer).
B. Probable Cause.
Appellant next argues that because the CRI did not personally witness the sale of cocaine and the affidavit included intentional or reckless misrepresentations, the warrant was not based on adequate probable cause and, therefore, all evidence obtained in the search of her house should have been suppressed. This court may independently review the facts to establish whether or not the district court erred, as a matter of law, in refusing to suppress evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). A search warrant must be supported by probable cause that contraband will be found in the place searched and must be issued by a neutral and detached judge. Minn. Stat. § 626.08 (2000); State v. Papadakis, 643 N.W.2d 349, 355 (Minn.App. 2002). The judge's task is to make a practical, common-sense determination that probable cause supports the issuance of the warrant. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). This court affords great deference to the judge's determination that probable cause existed. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). On review, this court need only determine whether or not the issuing judge had a substantial basis to conclude that probable cause existed. Papadakis, 643 N.W.2d at 355. Whether or not a substantial basis existed to issue a search warrant depends on the totality of the circumstances under which the warrant was issued. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). The circumstances, viewed in totality, must be drawn solely from the warrant application and affidavit sworn in support of the warrant, viewed together as a whole. Id. Elements establishing probable cause include "information linking the crime to the place to be searched, the freshness of the information, and the reliability of the sources of information." State v. Hochstein, 623 N.W.2d 617, 622 (Minn.App. 2001) (citation omitted).
When a warrant is issued based on information — including hearsay — provided to law enforcement by an informant, the veracity of the informant and the basis of his knowledge are considered under the totality-of-the-circumstances test. Ward, 580 N.W.2d at 71; Hochstein, 623 N.W.2d at 622-23. Recent personal observation of incriminating conduct is traditionally preferred as the basis of an informant's knowledge. Ward, 580 N.W.2d at 71.
Here, the search warrant affidavit stated that (1) the CRI had accompanied another individual who bought cocaine inside the house within the preceding 72 hours; (2) the CRI knew the occupants of the house to be named Eddie and Linda; (3) the CRI had given reliable, accurate information in the past; and (4) Officer Dellwo had verified that appellant lived at the address. See Wiley, 366 N.W.2d at 269 (stating that since the informant had provided credible information in the past, the magistrate would have reason to credit the informant's story and corroboration by the police of the name of the person whom the informant stated lived at the address to be searched lent credence to the informant's tip); Ward, 580 N.W.2d at 71 (holding an affidavit explicitly stating that informant has given reliable information in the past can demonstrate informant's credibility).
That it was another individual who entered appellant's house and returned after purchasing what he told the CRI was cocaine is of no consequence. Given the highly deferential standard applied by this court in analyzing the district court's decision that probable cause existed to issue the warrant, we cannot say that the district court's determination was incorrect. See Wiley, 366 N.W.2d at 268 (stating that a magistrate must make a common-sense determination as to whether or not probable cause exists to issue a search warrant). The CRI had a track record of reliability and the district court was justified in believing that the information presented was credible.
Appellant argues that Officer Dellwo's reference to the CRI in the plural as "they" infers there was another, unidentified person present, whose reliability has not been established. As a result, appellant claims that Officer Dellwo recklessly or intentionally misled the court to conclude that the drug information was from a reliable source.
If a search warrant application contains intentional or reckless misrepresentations of fact, material to the determination of probable cause, the search warrant is void. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989). A misrepresentation is material if, absent the misrepresentation, probable cause no longer exists. State v. Smith, 448 N.W.2d 550, 555 (Minn.App. 1989), review denied (Minn. Dec. 29, 1989). An innocent mistake or nonmaterial misrepresentation will not qualify as a knowing or reckless misstatement of material fact. State v. Braasch, 316 N.W.2d 577, 579 (Minn. 1982).
We find no indication that the district court was misled or confused as to how many persons were with the CRI. The warrant affidavit clearly states that the CRI supplied Officer Dellwo with information. The use of plural pronouns is more reasonably regarded as a colloquial, albeit incorrect, gender-neutral reference to one person.
Officer Dellwo also had information from a CI that the CI had purchased cocaine at 15111 Ensign Avenue South in the past. Although this information alone would not support a warrant, it serves as corroboration of the CRI's information that cocaine was being sold in appellant's house. See Hochstein, 623 N.W.2d at 623 (stating that information from an informant whose reliability and basis of knowledge are unknown can serve as corroboration for statements of a known, reliable informant).
2. Sufficiency of the Evidence.
Appellant argues that the evidence presented at trial was not sufficient to support a conviction. When considering a challenge to the sufficiency of the evidence, our review is limited to a painstaking analysis of the trial court record to determine if the evidence, viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is not this court's province to retry facts. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). It must be assumed that the jury credited the state's evidence and disbelieved evidence to the contrary. Id. If the jury, acting with due regard for the presumption of innocence and the state's burden, could have reasonably found appellant guilty, this court will not disturb the jury's verdict. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
In order to find appellant guilty, the jury had to conclude that appellant unlawfully possessed "one or more mixtures of a total weight of 25 grams or more containing cocaine," or that she intentionally aided, advised, counseled, conspired with, or otherwise procured another to do so. Minn. Stat. §§ 152.021, subd. 2(1), 609.05, subd. 1 (2000).
Evidence, including appellant's own statements and documents listing her name and address, was received that appellant owned and resided at the residence at 15111 Ensign Avenue South. The state also called Officer Dellwo and Southwest Metro Drug Task Force Agent Daniel Niccum, as witnesses, who testified that they found cocaine, along with items belonging to and used by appellant, in a bathroom that appellant admittedly had access to. The testimony of a forensic chemist established that the substance found in appellant's bathroom was 27.5 grams of cocaine. The evidence was sufficient to allow a reasonable jury to convict appellant of the charged offense.
3. Coerced Statement.
Finally, appellant challenges the admission of incriminating statements she made after waiving her Miranda rights. For the first time on appeal, appellant contends that she was coerced into waiving her rights; thus, her statements were not voluntary. This court may decline to address issues that were not raised before the trial court. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Because this issue was not raised in the trial court, and no evidence of coercion has been advanced, this issue has been waived.