This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Daren Kyle Stigman,
Filed July 11, 2000
Clay County District Court
File No. K0-99-204
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 11th Street North, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Daren Kyle Stigman appeals from his conviction of fifth-degree controlled-substance offense, arguing that district court erred in denying his motion to suppress evidence seized pursuant to a search warrant based on an informant’s tip because: (1) the informant’s credibility was not established and (2) the warrant application did not disclose that the informant was his female roommate, a co-worker with whom he had a romantic relationship. Stigman also argues that the district court erred when it gave an instruction on the elements of possession based on 10A Minnesota Practice, CRIMJIG 20.36 (1999), instead of his requested instruction. We affirm.
Appellant Daren Kyle Stigman and Nancy Moos worked together at Manor Care Health Services, a nursing-home facility. Stigman worked as a Licensed Practical Nurse and Moos as a Certified Nurse’s Assistant. The two developed a romantic relationship, became engaged, and in April 1998, began living together. Although Stigman and Moos lived in the same apartment, they had separate bedrooms and bathrooms.
In November 1998, Moos reported to Sally Kienenberger, the director of nursing at Manor Care, that Moos had found items in the apartment that appeared to be medications taken from the nursing home. She noted white paper pill cups of the kind used at Manor Care in Stigman’s bedroom and bathroom, including one that contained several small white pills. She also observed in the apartment medications bearing the names of Manor Care residents. Kienenberger told Moos to contact the police and that if Moos did not, she would. Moos then went to the Clay County Sheriff’s Office. Moos repeated to Detective Charles Anderson, the allegations she had made to Kienenberger.
Anderson prepared a search-warrant application and supporting affidavit. His affidavit stated that (1) he was contacted by a concerned citizen (CC) on November 16, 1998; (2) the CC provided her name and address to Anderson; (3) the CC provided Stigman’s address and stated that she had access to that address; (4) the CC claimed to have observed a large number of white pill cups, small white pills in one of the cups, and an inhaler with the name of Doris Nelson on it; and (5) the CC alleged that these items were stolen from Manor Care, Stigman’s place of employment.
Anderson’s affidavit also stated that (1) he corroborated the CC’s information by calling Kienenberger, who confirmed that Stigman was employed at Manor Care and had access to medications; (2) that within the previous 7 to 10 days, Manor Care discovered 28 Tylenol #3 and 10 Darvocet pills missing; (3) that medications were dispensed at Manor Care in small white paper cups; and (4) that Doris Nelson was a Manor Care resident and Kienenberger stated “that Stigman should not be in possession of that inhaler.” The search warrant was executed that day.
During the search of Stigman’s bedroom, the police seized pill containers with Stigman’s name; pill containers bearing the names of Manor Care residents; syringes; an empty bottle of Lorazepam; and a number of white paper cups, in one of which were five pills that were later determined to be Lorazepam. The police also recovered marijuana paraphernalia and others drugs, including Compazine, from the apartment. In the bathroom adjacent to Stigman’s bedroom, the police found an inhaler with the name Doris Nelson on it.
When interviewed by police, Stigman admitted taking drugs from Manor Care for his gallbladder and arthritis pain. Stigman stated that he had taken Tylenol 3, Darvocet, and Compazine from the nursing home, and an inhaler from a patient who had since left the nursing home. Stigman denied any knowledge of the white pills in the paper cup. He maintained that the bottle of liquid Lorazepam and the syringes were in the apartment because he forgot to throw them away while at work.
Stigman was charged with one count of fifth-degree controlled-substance crime for his possession of the five Lorazepam pills. He moved to suppress the evidence obtained during the search, arguing that there was not probable cause to support the search warrant. The district court denied the motion, and following a two-day trial, a jury found Stigman guilty. Stigman’s motion for a new trial was denied. The district court stayed imposition of sentence and placed Stigman on five years’ probation. As a condition of probation, Stigman was ordered to serve 30 days in jail, undergo chemical-dependency treatment, and pay fines and fees totaling $1,160. This appeal followed.
D E C I S I O N
A search warrant may be issued only if it is supported by probable cause as determined by a neutral and detached magistrate. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). A reviewing court looks to the “totality of the circumstances” when examining the sufficiency of an affidavit and may not review each component of the affidavit in isolation. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted). The issuing magistrate
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)). This court pays great deference to a magistrate’s determination of probable cause and does not review that determination de novo. Harris, 589 N.W.2d at 787.
Stigman argues that the search warrant was not supported by probable cause because the CC’s credibility was not established. An informant’s credibility cannot be assumed. State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978). But the credibility of a “so-called first-time citizen informer” who has not been involved in the criminal underworld is generally presumed. Id. at 115. For this presumption to apply, “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) (citing Seigfried, 274 N.W.2d at 115).
The supporting affidavit in this case does not specifically aver that the CC was not involved in criminal activity. The reliability of the CC, therefore, cannot be presumed. But simply because the informant does not qualify as a citizen informant “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). An informant’s credibility can be shown by demonstrating that the circumstances in the particular case that suggest strongly that the informant’s information is reliable or that 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.” Siegfried, 274 N.W.2d at 114-15. And where the police know the informant’s identity, reliability may be established by corroboration of “even minor details” that lend credence to the supplied information. Ward, 580 N.W.2d at 71 (citation omitted).
Here, the CC identified herself to Anderson. Because her identity was known to Anderson, she could be held accountable for her statements to him, which strengthens her credibility. See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (concluding that where informant’s identity is known to police, informant “is more likely to be telling the truth” because informant presumably knows police can arrest him or her for making false report). The affidavit stated that the information provided by the CC was based on the CC’s direct observations. Personal observation by an informant of incriminating conduct is sufficient to support probable cause. See Wiley, 366 N.W.2d at 269 (holding search warrant supported by probable cause where two days before warrant was issued informant personally observed stolen guns and narcotics on premises to be searched). The CC was also able to establish her credibility by correctly providing Anderson with Stigman’s home and work address and place of employment. See id. (holding informant’s credibility established where police corroborated informant’s statement certain individual resided at particular address and parked particular type of vehicle in front of residence). In addition, during his telephone conversation with Kienenberger, Detective Anderson was able to corroborate the information provided by the CC that: (1) Stigman worked at Manor Care; (2) medications had recently been reported missing at Manor Care, specifically Tylenol #3 and Darvocet; (3) Stigman had worked recently and had access to the medications; (4) medication at Manor Care is dispensed in small white paper cups; and (5) there was a resident named Doris Nelson at Manor Care.
Examining the totality of the circumstances at the time of the warrant application, the information provided by the CC was sufficiently corroborated by Anderson to establish the CC’s credibility. Further, the information provided by the CC and corroborated by Anderson established probable cause that medications taken from Manor Care would be found in Stigman’s apartment.
Next, Stigman argues that Detective Anderson omitted material information from his affidavit that would have affected how the issuing magistrate would have viewed the information provided by the CC. Stigman contends the affidavit should have disclosed that Nancy Moos (1) was the CC and lived with Stigman; (2) worked at Manor Care with Stigman; and (3) was involved in a romantic relationship with Stigman that was deteriorating, and she was angry and bitter toward him.
The state argues that Stigman failed to raise this issue in the district court. By failing to present the issue of alleged omissions from an affidavit to the district court during the omnibus hearing, a defendant waives “his right to challenge their inclusion in the determination of probable cause.” State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (citation omitted). But during the omnibus hearing, in response to an objection by the prosecutor to a question posed to Anderson, Stigman’s attorney stated he had a right to explore the issue of whether the CC had a motive to falsify the information provided to Anderson. Stigman’s attorney implied that certain information was omitted from the affidavit, noting “[t]he affidavit in this case tries to establish [the] reliability of Ms. Moos but it does nothing to dispel a motive [of Moos] to falsify.” Arguably, Stigman raised the issue of material omission to the district court during his cross-examination of Anderson, and we conclude that the issue, therefore, has not been waived on appeal.
If an application for a search warrant contains intentional or reckless misrepresentations of fact material to the finding of probable cause, the search warrant is void and the fruits of the search must be excluded. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989); see Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978). The Minnesota supreme court has extended this rule to include material omissions from the affidavit. See State v. Doyle, 336 N.W.2d 247, 252 (Minn. 1983). In such cases, we must determine “whether, after supplying the omissions, the affidavit established probable cause.” State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989) (citation omitted), review denied (Minn. Dec. 29, 1989).
Stigman alleges that information omitted from the affidavit would have cast doubt on the CC’s credibility. But Detective Anderson independently discovered facts that lend credibility to the CC’s information, and he corroborated numerous details provided by the CC that support a determination of probable cause that drugs missing from Manor Care would be found in Stigman’s apartment. And the corroboration of these details lends credibility to the whole of the information provided by the CC. Wiley, 366 N.W.2d at 269. We conclude that, even after supplying the omitted information, the affidavit here sufficiently established probable cause.
Finally, Stigman argues that the district court abused its discretion when it gave a jury instruction on the elements of possession based on 10A Minnesota Practice, CRIMJIG 20.36 (1999), instead of Stigman’s requested instruction. The district court is given “considerable latitude” in selecting the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted). The refusal to give a particular jury instruction lies within the district court’s discretion “and no error results if no abuse of discretion is shown.” State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A party is entitled to a particular jury instruction if the evidence presented at trial supports the instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). “If, however, the substance of a particular instruction is already contained in the court’s instructions to the jury, the court is not required to give the requested instruction.” Id. (citation omitted). Jury instructions are viewed in their entirety to determine whether the law of the case is fairly and adequately explained. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
Before trial, Stigman requested a jury instruction on the elements of possession based on a footnote in State v. Olson, 482 N.W.2d 212 (Minn. 1992). The district court denied Stigman’s requested instruction, and instead, based on CRIMJIG20.36, the court gave the following instruction to the jury on the elements of possession:
First, that the defendant knowingly possessed Lorazepam. In order that the defendant is in possession of Lorazepam it is not necessary that it have been upon his person. The defendant possessed it if it was in a place under this control and to which other people normally did not have access. Or the defendant possessed it if he knowingly exercised control over it. Second, the defendant knew or believed that the substance he possessed was Lorazepam.
Stigman contends that the instruction suggested in Olson was vital to his case and that without it, the jury could not fairly evaluate his defense. But the fact that language proposed by a defendant is taken from an appellate decision does not mean the district court is “obligated to give a proposed instruction simply because the instruction contains language taken from a decision of [the] court.” State v. Jolley, 508 N.W.2d 770, 772 (Minn. 1993).
The district court’s instruction on knowing possession allowed the jury to consider fully and fairly Stigman’s theory of the case, which was that Moos planted the Lorazepam in his bedroom and that he had no knowledge that the pills were Lorazepam. The substance of Stigman’s proposed instruction was contained in the court’s instruction. See State v. Peou, 579 N.W.2d 471, 476 (Minn. 1998) (holding that district court is not required to give proposed instruction even if it would clarify issue for jury “if the substance of [the] particular instruction is already contained in the court’s instructions to the jury” (quotation omitted)). The jury instruction given fairly and adequately explained the elements of possession, and the district court did not abuse its discretion in denying Stigman’s proposed instruction.