IN COURT OF APPEALS
Filed December 6, 2005
Reversed and remanded
Hennepin County District Court
File Nos. 04077278, 04077280, 04077279
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)
Mark D. Nyvold,
Richard A. Enga, Taylor Law Firm, 2604 Radisson Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402 (for respondent Julius Nolen)
Robert M. Paule,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; Wright, Judge.
S Y L L A B U S
Notwithstanding reckless misrepresentations of fact by the affiant in a search-warrant application, plastic bags containing marijuana residue obtained through a legal garbage search can establish an independent and substantial basis for probable cause to issue a search warrant for a residence.
O P I N I O N
On September 23, 2004, Sgt. Fossum of the Minneapolis Police Department conducted a custodial interview of Gary Buckner, a suspect in a series of armed robberies of local pharmacies. During the interview, Buckner admitted committing seven armed robberies in the Twin Cities area. In each robbery, Buckner sought OxyContin tablets for his personal use.
After discussing the robberies, Buckner was asked to identify associates who also were engaged in criminal activity. Among a small number of associates, Buckner implicated respondent Amy McGrath, Michael Ruprecht, and their friend “Laura” who was “one of the prosecuting attorneys in Minneapolis.” Buckner characterized McGrath and Ruprecht as cocaine dealers. Buckner stated that he had seen “Laura” use cocaine on multiple occasions between December 2003 and June 2004, a period during which he was renting a room in the basement of the residence of McGrath and Ruprecht. “Laura” was later identified as respondent Laura Nolen.
Sgt. Fossum contacted Det. Skorczewski of the Scott County Sheriff’s Office to conduct an investigation so as to avoid a conflict of interest for police officers who had worked with Laura Nolen and her husband, respondent Julius Nolen, who was an Assistant Hennepin County Attorney. On September 27, 2004, Det. Skorczewski interviewed Buckner. This interview focused primarily on the drug-dealing activities of McGrath and Ruprecht. Buckner stated that he had witnessed Laura Nolen using cocaine six to eight times over the six-month period when he lived at the McGrath-Ruprecht residence. Buckner admitted that, although he had not seen Laura Nolen purchase cocaine, it was clear to him that she was buying cocaine from McGrath. Buckner last saw Laura Nolen use cocaine in June or July 2004, shortly before he was forced to move out of the McGrath-Ruprecht residence.
Under the supervision of Det. Skorczewski, Buckner conducted a controlled buy of cocaine at the McGrath-Ruprecht residence. McGrath, Pamela Lazor, and Laura Nolen were present at the residence when Buckner arrived. The three women left when Ruprecht arrived at the residence, and the controlled buy of cocaine between Buckner and Ruprecht occurred after the women’s departure.
On November 1, 8, and 15, 2004, Sgt. Fossum conducted searches of the garbage set out at curbside for weekly pickup at the Nolen residence. During the November 1 search, Sgt. Fossum located a plastic bag that he believed smelled of and contained traces of marijuana. The November 8 search produced two plastic bags that Sgt. Fossum believed contained traces of marijuana. Sgt. Fossum retrieved another plastic bag with suspected marijuana residue during the November 15 search. Each bag later tested positive for the presence of marijuana.
On November 16, 2004, Det. Skorczewski submitted to a Hennepin County district judge applications and supporting affidavits for search warrants for the Nolen and McGrath-Ruprecht residences. The district judge signed the search warrants, but not before the judge limited the scope of the search warrant for the Nolen residence by removing references to instrumentalities of sales and distribution of controlled substances. With the assistance of other law-enforcement officers, Det. Skorczewski executed the search warrant for the Nolen residence on November 19, 2004. Laura Nolen, Julius Nolen, McGrath, and Lazor were present at the Nolen residence during the search. Cocaine and marijuana were seized during the search of the residence. Cocaine also was recovered from McGrath’s pants.
The state filed an eight-count complaint charging defendants McGrath, Ruprecht, Lazor, Laura Nolen, and Julius Nolen with one count of fifth-degree possession of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(1) (2004). McGrath, Laura Nolen, and Julius Nolen also were charged with one count of child endangerment, in violation of Minn. Stat. § 609.378, subd. 1(b)(2) (2004). The state later filed amended complaints against each party individually that were otherwise identical to the original complaint.
The defendants challenged the constitutionality of the search of the Nolen residence, arguing that the information contained in the search-warrant affidavit was insufficient to establish probable cause. Specifically, the defendants challenged the veracity of the affiant and the accuracy of the search-warrant affidavit.
On March 2, 2005, a Franks hearing was held at which Det. Skorczewski was the only witness. The district court determined that Det. Skorczewski had recklessly disregarded the truth by referring to Buckner as a “concerned citizen” in the search-warrant application and by withholding from the issuing judge relevant information that was necessary to assess Buckner’s credibility and reliability. The district court also determined that, because they merely supplied evidence of noncriminal, personal use of marijuana, the bags containing marijuana residue seized during the garbage searches did not establish an independent basis for probable cause. Therefore, the district court suppressed the evidence seized during the search of the Nolen residence.
The state appealed the district court’s order. Because the issues in each case are identical, we consolidated the appeals.
Do the totality of the circumstances support a finding of probable cause to issue a search warrant for the Nolen residence?
When the state appeals a pretrial suppression order, the state “must ‘clearly
and unequivocally’ show both that the trial court’s order will have a ‘critical
impact’ on the state’s ability to prosecute the defendant successfully and that
the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (
The state asserts that, without the evidence seized from the Nolen residence, there is no likelihood of a successful prosecution. For each respondent, the drug-possession and child-endangerment charges arise from the execution of the search warrant at the Nolen residence and the evidence obtained during that search. Because no other evidentiary basis for the charges in the complaints exists, we conclude that suppression of the evidence seized from the Nolen residence has a critical impact on the state’s ability to prosecute these cases.
The state contends that the district court erred when it (1) determined
that the affidavit Det. Skorczewski executed in support of the search-warrant application
contained reckless misrepresentations of material fact and (2) declined to use
the marijuana evidence seized during the garbage searches as an independent
basis for probable cause. When determining
whether a search warrant is supported by probable cause, we do not engage in a
de novo review. State v. Papadakis, 643 N.W.2d 349, 355 (
The affidavit must supply specific facts to establish a “direct
connection, or nexus,” between the crime alleged and the place to be searched,
“particularly in cases involving the search of a residence for evidence of drug
activity.” State v. Souto, 578 N.W.2d 744, 747-48 (
Our first consideration is whether the search-warrant application,
including the affidavit, is facially sufficient to support a finding of
probable cause. Because the search-warrant
application is clear and unambiguous, we do not look beyond the four corners of
the document to find “an intent and an authority not expressed within.” State
v. Alt, 469 N.W.2d 732, 734 (
Det. Skorczewski’s affidavit contains detailed information regarding his training and experience in drug-related investigations, along with his past experience executing search warrants. The affidavit describes the Nolens and their residence with particularity and relates Det. Skorczewski’s knowledge of the Nolens’ drug-related activities based on statements by an anonymous source described as a “concerned citizen.” The affidavit describes the three garbage searches and the evidence seized from them. Finally, the affidavit describes the basis for a criminal investigation of the Nolen residence.
The search-warrant application, including Det. Skorczewski’s affidavit, is facially valid, supplying relevant information necessary to establish probable cause in support of a search warrant. Thus, the issuing judge did not err in issuing the search warrant for the Nolen residence based on the information presented.
Because respondents challenged the accuracy and veracity of the
statements contained in Det. Skorczewski’s affidavit, our analysis does not end
with our determination of the search-warrant application’s facial
validity. Although a presumption of
validity attaches to a search-warrant affidavit, this presumption is overcome
when the affidavit is shown to be the product of deliberate falsehood or
reckless disregard for the truth. Franks, 438
The state contends that the district court erred when it determined that
the affidavit contained reckless misrepresentations of material fact. In reviewing the veracity and accuracy of the
affidavit, we carefully examine the statements contained therein to determine whether
Det. Skorczewski deliberately or recklessly misled the issuing judge when he referred
to Buckner as a “concerned citizen.” A “concerned
citizen” is an informant who provides information in his or her capacity as a
witness to a crime, for whom a law enforcement officer is relieved of having to
establish credibility and veracity independently through corroboration or a
history of providing reliable information.
See 2 Wayne R. LaFave, Search & Seizure § 3.4(a), at
219-21 (2004). The motive to supply
information to police distinguishes a concerned citizen from other informants who
are motivated by a desire for leniency or immunity from prosecution. A concerned citizen acts with an intent to
aid law enforcement out of concern for society or for personal safety. Erickson
v. State, 507 P.2d 508, 518 (
When we apply this definition of the term “concerned citizen,” the record clearly supports the district court’s determination that Det. Skorczewski recklessly disregarded the truth when using the term to describe Buckner. Det. Skorczewski included the following description of Buckner and his knowledge in the search-warrant affidavit:
In October of
2004, Your Affiant learned from a Concerned Citizen [CC] of drug activity in
the City of
As this excerpt demonstrates, Det. Skorczewski’s affidavit relies heavily on the statements of Buckner as a “concerned citizen,” without establishing any details regarding Buckner that would provide insight as to his credibility or motive to cooperate with the investigation.
Det. Skorczewski’s affidavit fails
to disclose relevant facts about Buckner that are critical to an informed
judgment of his credibility and veracity.
For example, Buckner has an extensive criminal record in
At the time of the interviews, Buckner was a drug addict in police custody facing serious criminal charges. Buckner had admitted committing seven armed robberies of local pharmacies to support his addiction to OxyContin, a Schedule II drug under the Controlled Substances Act. See Minn. Stat. § 152.02, subd. 3(a) (2004). Buckner also admitted a history of cocaine addiction. None of this information is included in the affidavit.
Det. Skorczewski’s characterization
of Buckner as a “concerned citizen” is false and misleading. Given his criminal history and ongoing participation
in criminal activity, Buckner is not a concerned citizen. Rather, he is a confidential informant, whose
credibility and reliability must be bolstered by statements regarding a history
of providing accurate information in prior criminal investigations. State
v. Siegfried, 274 N.W.2d 113, 114 -15 (
[I]t is not enough that the affidavit states in a conclusory fashion that [an informant] is credible or reliable. Rather, the affidavit must provide the [issuing judge] with adequate information from which [the judge] can personally assess the informant’s credibility. This is often done by showing that the informant has a track record, e. g., by showing that in the past the information he has given the police has been accurate.
Det. Skorczewski’s affidavit also contained erroneous statements regarding Buckner’s knowledge of Laura Nolen’s drug use. By the time Det. Skorczewski applied for the search warrant in November, approximately four months had passed since Buckner had observed Laura Nolen using cocaine at the McGrath-Ruprecht residence. But the affidavit states that Buckner’s observation occurred one month prior to the date of the affidavit. The affidavit also refers to cocaine sales from McGrath to Laura Nolen, falsely implying that Buckner witnessed this activity or had direct knowledge of it. But Buckner did not witness Laura Nolen purchase cocaine, nor did he have any information relating to such sales.
When asked why he did not present information about Buckner’s drug
addiction, criminal record, and recent criminal activity to the issuing judge,
Det. Skorczewski replied, “I don’t know.”
Det. Skorczewski then indicated that such information was not needed
because he considered Buckner to be a concerned citizen at that time. We disagree.
By elevating Buckner to the status of a “concerned citizen,” whose
credibility as an informant is presumed, the need for the issuing judge to
scrutinize the informant’s motive and credibility was obscured. Buckner’s credibility and reliability were
not those of a neutral, independent citizen-witness. The issuing judge should have been informed
about the true nature of the source of the information.
We also agree with the district court’s conclusion that Det. Skorczewski’s statements as to Buckner’s credibility as a “concerned citizen” demonstrate a reckless disregard for the truth. Details such as Buckner’s criminal history, use of aliases, and pending charges were relevant to a finding of probable cause. A veteran law enforcement officer, such as Det. Skorczewski, with more than ten years’ experience, including the preparation of more than 115 affidavits in support of search warrants, should have known the relevance of this information and presented it to the issuing judge. Because the omissions from the affidavit demonstrate a reckless disregard for the truth that hindered the issuing judge’s opportunity to meaningfully assess the informant’s credibility, the district court did not err in its determination that the affidavits contained reckless misrepresentations of fact that undermined the finding of probable cause.
In light of our conclusion that the search-warrant affidavit included reckless misrepresentations of fact, we next consider whether the reckless misrepresentations are material to the determination of probable cause. In doing so, we set aside Skorcewski’s misleading statements, and supply any omissions regarding Buckner to determine whether any basis for finding probable cause remains. Doyle, 336 N.W.2d at 250; State v. Smith, 448 N.W.2d 550, 555-56 (Minn. App. 1989) (holding that reckless misrepresentation is “material” if there is not probable cause to issue search warrant when misrepresentation is set aside), review denied (Minn. Dec. 29, 1989). If after this rehabilitation there is sufficient information to sustain a finding of probable cause, the search warrant is not void. Elec. Fetus Co., 547 N.W.2d at 452.
The state contends that probable cause to issue the search warrant was independently established by the evidence seized during three curbside garbage searches conducted at the Nolen residence. From these searches, police recovered four plastic bags that tested positive for the presence of marijuana. The district court concluded that the evidence retrieved from the Nolens’ garbage was insufficient to establish probable cause to search the Nolen residence because (1) the evidence merely demonstrated personal use of marijuana, and (2) possession of a small amount of marijuana is a petty misdemeanor—not a crime, which is an enumerated ground for issuing a search warrant. Minn. Stat. § 626.07(3) (2004) (“A search warrant may be issued upon any of the following grounds: . . . [t]he possession of the property or things constitutes a crime[.]”); see Minn. Stat. § 152.027, subd. 4 (2004) (stating that possession of small amount of marijuana is petty misdemeanor); Minn. Stat. § 609.02, subd. 4 (2004) (stating that petty misdemeanor is not a crime).
Probable cause to issue a search warrant requires a fair probability to
believe that contraband or evidence of a crime will be found in the location to
be searched. Harris, 589 N.W.2d at 788; Zanter,
535 N.W.2d at 633. Indeed, probable
cause requires “‘only a probability or substantial chance of criminal activity,
not an actual showing of such activity,’ . . . the significant fact being ‘not
whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of
suspicion that attaches to particular types of noncriminal acts.’” Olson v.
State, Comm’r of Pub. Safety, 371 N.W.2d 552, 555 (
Contraband seized from a garbage search can provide an independent and substantial
basis for a probable-cause determination.
Papadakis, 643 N.W.2d at 356 (finding
that spoon with burn marks and plastic bag containing cocaine residue were
sufficient to establish probable cause for search); see also State v. Goebel,
654 N.W.2d 700, 702 (Minn. App. 2002) (spoon with cocaine residue). In State
v. Dreyer, marijuana residue retrieved during a residential garbage search led
to the issuance of a constitutionally valid search warrant for a residence. 345 N.W.2d 249, 250 (
Minnesota caselaw does not support the district court’s determination
that small, noncriminal amounts of marijuana cannot establish a fair
probability that evidence of a crime or contraband will be found in a
particular place. A search-warrant
application establishes probable cause if “the affidavit, interpreted in a
common-sense and realistic manner, contain[s] information which would warrant a
person of reasonable caution to believe that the articles sought are located at
the place to be searched.” Rosillo v. State, 278 N.W.2d 747, 748-49
Our probable-cause analysis requires us to examine two final issues: the staleness of the evidence used to support probable cause and the nexus between the alleged crime and the particular place to be searched.
The evidence supporting a finding of
probable cause must be closely related in time to the issuance of the search warrant
so as to justify a finding of probable cause at the time the search is to be
conducted. Jannetta, 355 N.W.2d at 193.
Factors such as “whether there is any indication of ongoing criminal
activity, whether the items sought are innocuous or incriminating, and whether
the property sought is easily disposable or transferable” are relevant to our
consideration of whether the information supporting the search warrant is stale.
v. DeWald, 463 N.W.2d 741, 746 (
Unlike Laura Nolen’s alleged cocaine use reported by Buckner, the evidence of marijuana use was obtained shortly before the search warrant was sought. The first evidence of this type was seized three weeks before the search warrant was sought. Two additional searches produced similar evidence. And the last garbage search occurred only one day before the application was made and two days before the search warrant was executed. The recovery of discarded bags with marijuana residue on a weekly basis is indicative of ongoing activity of an illegal nature. Thus, the evidence recovered from the garbage searches was not stale.
This evidence also supplies the “direct connection, or nexus, between the alleged crime and the particular place to be searched” necessary to establish probable cause. Souto, 578 N.W.2d at 747.
Based on the totality of the circumstances, we conclude that there was probable cause to issue the search warrant for the Nolen residence and that the district court erred in suppressing the evidence seized during the search.
As a final matter, without regard for well-established precedent, respondent
Laura Nolen invites us to rule that garbage searches are per se unreasonable
According to the search-warrant affidavit, each of the three garbage searches was conducted on garbage set out at curbside for normal pickup. There is no evidence that any of the searches exceeded the constitutionally permissible bounds. Accordingly, these searches were not unreasonable.
D E C I S I O N
Notwithstanding reckless misrepresentations of fact by the affiant in the search-warrant application, the evidence of ongoing marijuana possession and use retrieved from respondents’ curbside garbage supplied an independent basis sufficient to establish probable cause to issue the search warrant. The district court, therefore, erred by suppressing the evidence seized during the search.
Reversed and remanded.
 Ruprecht was searched in his vehicle after leaving the Nolen residence shortly before the execution of the search warrant. Officers seized 2.5 grams of cocaine from his possession.
 The state dismissed the child-endangerment charge against McGrath and the controlled-substance charge against Lazor.
 Franks v.
 Respondents do not challenge the search warrant for the McGrath-Ruprecht residence. Although the district court found that Det. Skorczewski similarly exhibited a reckless disregard for the truth in statements contained in that search-warrant affidavit, the controlled buy of cocaine provided an independent basis for probable cause to search the McGrath-Ruprecht residence.