Opinion
No. C8-01-1363
Filed June 25, 2002.
Appeal from the District Court, Chippewa County, File No. K300347.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and
Dwayne Knutsen, Chippewa County Attorney, (for respondent)
John M. Stuart, Minnesota Public Defender, Michael C. Davis, Special Assistant Public Defender, (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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Matthew James Wrobleski challenges his conviction of burglary in the third degree. Wrobleski argues that (1) the district court erred by refusing to suppress evidence seized during the execution of a search warrant because the warrant was not based on probable cause and (2) the district court committed prejudicial error by admitting Spreigl evidence. We affirm.
FACTS
Wrobleski entered the Bumper-to-Bumper Store in Redwood Falls and asked an employee if the store stocked Holley carburetors. The employee told Wrobleski that there was one in stock, but Wrobleski did not buy the carburetor. A Bumper-to-Bumper employee saw Wrobleski walking out of the store toward a Ford F-150 pickup truck. During the early morning hours of the next day, the Bumper-to-Bumper store was burglarized and the Holley carburetor, in its box, was taken along with tools, paint, and painting equipment.
Redwood Falls Police Officer Douglas Gene Hoffman responded to a call about an open door at the store and just after he arrived saw a green Ford pickup truck come from behind the store. The driver of the truck turned the lights off as he drove by the officer. Officer Hoffman was unable to stop the pickup truck, but he saw the driver by the light of a streetlight. His description of the driver was consistent with Wrobleski's physical appearance.
A few weeks later, the owner of the Maynard C-Store, a convenience store in Maynard, found that someone, who apparently entered the store with a key, had burglarized his store. A safe was stolen as well as cash from the ATM machine and another safe.
The day after the Maynard burglary, Renville County Deputy Sheriff Pomplun, Officer Hoffman, and other officers went to a farm site rented by Jacob Severson in rural Franklin to execute outstanding warrants on Wrobleski, who rented a room from Severson. Severson's girlfriend, Kerry VanVickle, was an employee of the Maynard store. Andrew Wrobleski (Wrobleski's cousin) and Severson were outside of the house when the officers arrived.
Severson gave Deputy Pomplun permission to look at a blue Chevrolet pickup truck that was on the premises. As the deputy looked at that truck, another officer shined a light into an open granary and read the license plate of a car in the granary. A check showed that the car was stolen. Deputy Pomplun then arrested Severson, placed him in a squad car, and asked for permission to search the entire farm site. Severson refused at first, but after speaking to Andrew Wrobleski, consented to the search and signed a written consent form. Severson does not contend that his consent was involuntary.
During the search, the officers found a green F-150 Ford pickup truck that was also listed as stolen. Officer Hoffman described this truck as having the same appearance as the truck he saw leaving the scene of the Bumper-to-Bumper store burglary. Severson said that Wrobleski brought the stolen trucks to the farm site.
The officers conducted a sweep of Severson's house. VanVickle and Wrobleski's girlfriend were found hiding in the attic. The officers looked for Wrobleski in other rooms of the house but did not find him. In the room that Wrobleski rented, Deputy Pomplun saw two containers of coins and decided to obtain a search warrant, recognizing that Severson's consent to search might not extend to Wrobleski's room.
The next morning officers found tracks consistent with someone having recently driven across fields at the back of the farm site to a nearby gravel road.
In executing the search warrant, the officers found numerous items that were taken from the Maynard burglary, including $11,387.74 cash in a roasting pan in Wrobleski's room. Other property stolen from other locations was also discovered. A new Holley carburetor was found in a vehicle on the farm site with the packaging for the carburetor nearby, suggesting a recent installation.
Wrobleski was charged with burglary in the third degree and aiding and abetting burglary in violation of Minn. Stat. §§ 609.582, subd. 3 (2000), 609.05, subd. 1 (2000), and with conspiracy to commit third degree burglary, in violation of Minn. Stat. §§ 609.175, 609.582, subd. 3, all related to the burglary of the store in Maynard. The district court denied Wrobleski's motion to suppress evidence recovered pursuant to the search warrant and permitted the state to introduce Spreigl evidence of Wrobleski's involvement in the Bumper-to-Bumper Store burglary. VanVickle testified that Wrobleski had asked her for her key to the Maynard store and that she had given it to him. She testified that Wrobleski told her he was probably going to break into the store and that she should be prepared for the police to come and talk to her. VanVickle testified that after the burglary she asked Wrobleski what he had done and he said "Well, what do you think I did?" Wrobleski later left VanVickle's key on the dining room table at the farmhouse. A jury convicted Wrobleski of all three counts, and he was sentenced pursuant to sentencing guidelines. Wrobleski appeals.
DECISION 1. The search
We review the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). "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).
Wrobleski argues, for the first time on appeal, that the search warrant lacked probable cause because Severson's consent to the initial search of the farm site was involuntary, making the search illegal and invalidating the information used in the affidavit supporting the search warrant application. Generally, an issue may not be considered on appeal when the party raising the issue failed to raise it at the district court. See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (stating that failure to raise an issue below generally means that a party has waived its right to raise the issue on appeal). Because Wrobleski did not raise this issue at the district court level, he has waived his right to challenge the voluntariness of Severson's consent to the initial search of the farm site.
Wrobleski argues that Deputy Pomplun only wanted to search Wrobleski's room because of Severson's accusation that Wrobleski brought stolen property to the farm site. Wrobleski alleges that Severson was an accomplice and, as such, could not furnish probable cause to support issuance of the search warrant. The state argues that Severson is not an accomplice and that, even without his accusation, probable cause to support the search warrant exists.
A search warrant may only issue upon a showing of probable cause. Minn. Stat. § 626.08 (2000). The existence of probable cause is examined under a 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.
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted). "The fourth amendment requires only that the magistrate had a `substantial basis for * * * conclud[ing] that a search would uncover evidence of wrongdoing.'" Id.; see also State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990) (noting that the totality-of-the- circumstances test requires a substantial basis for the magistrate's decision to issue a search warrant). Probable cause exists if a supporting "affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search." State v. Richardson, 514 N.W.2d 573, 579 (Minn.App. 1994).
Here, Deputy Pomplun indicated, in the affidavit supporting his request for a search warrant to search the farm site, that (1) during the consent search of the house he observed what he believed to be a container containing marijuana and (2) officers found two stolen vehicles on the property, including a vehicle identified by Officer Hoffman as possibly having been at the scene of the Redwood Falls burglary. Deputy Pomplun stated that Severson informed him that Wrobleski brought the stolen property to the premises.
Wrobleski's reliance on State v. Lundberg, 575 N.W.2d 589 (Minn.App. 1998), review denied (Minn. May 20, 1998), for the proposition that an accomplice's testimony is inherently unreliable, is misplaced because Lundberg does not involve the issuance of a search warrant and Severson's statement was not the only basis asserted to support the warrant application. Deputy Pomplun's affidavit sets forth competent evidence (i.e. that stolen property and illegal drugs were found on the property along with a possible getaway vehicle during a consensual search) that would lead a reasonably prudent person to believe there is a basis for the search, including Wrobleski's room. See Richardson, 514 N.W.2d at 579.
In his pro se brief, Wrobleski makes the additional argument that Deputy Pomplun's statement in the supporting affidavit that Wrobleski was the "prime suspect" in the Redwood Falls burglary was vague and uncertain information that does not support probable cause to issue the warrant. But Deputy Pomplun also knew that Officer Hoffman believed, when the green Ford pickup truck was discovered at the farm site, that it was the same truck that he saw leaving the Bumper-to-Bumper Store burglary scene in Redwood Falls. The information came from a police officer and was not vague or uncertain. We conclude that there was probable cause to support issuance of the search warrant and that the district court did not err by denying Wrobleski's motion to suppress the evidence seized in the search.
2. Spreigl evidence
Generally, evidence that an accused committed other crimes in addition to those charged is not admissible to show the accused's character and to show that the accused acted in conformity therewith. Minn.R.Evid. 404(b); State v. Spreigl, 272 Minn. 488, 491-93, 139 N.W.2d 167, 169-71 (Minn. 1965). Such evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn.R.Evid. 404(b). Moreover, in criminal prosecution[s], such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence.
Id. "Clear and convincing proof will be shown where the truth of the facts asserted is `highly probable.'" In re Miera, 426 N.W.2d 850, 853 (Minn. 1988).
Admission of Spreigl evidence will only be reversed on appeal if the party challenging the evidence can demonstrate an abuse of discretion. State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986). Wrobleski contends that the state failed to establish by clear and convincing evidence that Wrobleski committed the Bumper-to-Bumper Store burglary.
Officer Hoffman testified that the green Ford F-150 pickup truck he saw leaving the parking lot of the store could have been the same green Ford pickup truck found at the farm site. Severson said Wrobleski brought the truck to the farm site. Officer Hoffman described the Ford's driver to the jury, and the description was consistent with Wrobleski's physical characteristics. The state made an offer of proof that Bumper-to-Bumper employees would testify that Wrobleski had been in the store and had asked about a Holley carburetor but left the store without purchasing the carburetor. One of the employees would testify that Wrobleski left the store in a green Ford F-150 pickup truck. The Holley carburetor, in its box, was taken in the burglary. A freshly installed Holley carburetor was found at the farm site and the box that it came in was nearby. Because the offer of proof makes it highly probable that Wrobleski committed the burglary in Redwood Falls, the district court did not abuse its discretion by concluding that the state had shown Wrobleski's involvement in the Redwood Falls burglary by clear and convincing evidence or by admitting that involvement as Spreigl evidence.
In his pro se supplemental brief, Wrobleski appears to contend that the district court abused its discretion by admitting Spreigl evidence because of inconsistencies in the case. We find that contention without merit.
The state asserts that Wrobleski, in his pro se supplemental brief, argues that the Spreigl evidence was introduced to show bad character. The state points out that Wrobleski did not raise the issue below and asserts that the evidence was introduced for identity purposes. We conclude that the Spreigl evidence clearly went to identity, not bad character, and was properly admitted.