This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-1197

 

State of Minnesota,
Respondent,

v.

Paul Loren Schmidtbauer,
Appellant.

Filed March 27, 2001

Affirmed

Peterson, Judge

Concurring specially, Randall, Judge


Morrison County District Court
File No. K799762

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55101; and

 

Conrad J. Freeburg, Morrison County Attorney, Government Center, 213 Southeast First Avenue, Little Falls, MN  56345-3196 (for respondent)

 

Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN  55101-2264 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of first-degree controlled substance crime, appellant Paul Loren Schmidtbauer argues that the application for a warrant to search his residence, which was in part based upon an informant’s tip, did not establish probable cause and that the application omitted the material fact that the informant was incarcerated and seeking leniency.  Schmidtbauer also argues that his confession was involuntary because it was the product of a promise of leniency.  We affirm.

FACTS

            On June 6, 1999, Pierz Police Chief Steve Boser observed a plastic bag containing what he estimated to be at least 50 boxes of Sudafed, all of which appeared to be empty, in the garage attached to Schmidtbauer’s residence.  Boser also observed a large bowl, about one-third full of Sudafed pills, on top of a toolbox near the plastic bag.

            Boser’s observations were reported to Thomas Wyatt, a special agent for the Bureau of Criminal Apprehension.  Wyatt stated that he knows through his training and experience that pseudoephedrine is the main ingredient used in manufacturing methamphetamine; Sudafed tablets contain pseudoephedrine; large quantities of pseudoephedrine are necessary in the methamphetamine manufacturing process; and large quantities of products containing pseudoephedrine, like Sudafed, are inconsistent with personal use.  Wyatt opined that having a large quantity of a product containing pseudoephedrine in a large bowl was consistent with the process of separating pseudoephedrine out of Sudafed for use in methamphetamine manufacturing.  Wyatt explained that bowls, bottles, and jars filled with solvents, alcohol, and/or water, with pills placed in the liquid to separate the pseudoephedrine, is the initial step in the methamphetamine manufacturing process.

            On July 15, 1999, an informant met with Special Agent Thomas Ploof and told Ploof that he saw Schmidtbauer manufacture methamphetamine at the Schmidtbauer residence on four or five occasions within the preceding two months and also saw an extensive collection of scientific glassware used by Schmidtbauer in the manufacturing process.  The informant described buying methamphetamine from Schmidtbauer on many occasions during the preceding two months, seeing him manufacturing methamphetamine on four or five occasions during the preceding two months, and also said he had seen methamphetamine cookbooks and thousands of pseudoephedrine pills at the Schmidtbauer residence.

            The informant provided detailed descriptions of a methamphetamine lab in Schmidtbauer’s garage and barn and of the glassware used in the lab.  Wyatt recognized one of the glassware pieces described as being a condenser, which is used to mix and cool chemicals to prevent fumes and chemicals from escaping the reaction process.  The informant described the layout of the Schmidtbauer property, numerous junk cars in the yard, and the appearance of the garage, house, and barn; Ploof verified these descriptions.  The informant also said that Schmidtbauer had bought a new mechanics toolbox.  Boser had seen a new mechanics toolbox when he was in Schmidtbauer’s garage.

            The informant told Ploof that, a few days earlier, Schmidtbauer had asked him to procure a tank of anhydrous ammonia for Schmidtbauer to use in manufacturing methamphetamine.  Wyatt stated that anhydrous ammonia is used in the most common methamphetamine manufacturing method employed in central Minnesota and that he had learned, through interviewing many defendants arrested in connection with methamphetamine labs, that it is common for a manufacturer to have someone else purchase chemicals for the lab to conceal the manufacturer’s identity.

            Based on the above-stated facts, the district court issued a warrant to search Schmidtbauer’s residence, attached garage, and outbuildings for controlled substances, including methamphetamine, and items associated with manufacturing methamphetamine and with selling controlled substances.  Police officers executed the search warrant at about 11:30 p.m. on July 15, 1999.  During the search, they seized a large amount of pseudoephedrine and numerous other items used in manufacturing methamphetamine.

            Schmidtbauer was arrested and taken into custody at about midnight on July 16, 1999.  About four hours later, Schmidtbauer was advised of his Miranda rights, and he opted to make a statement to police.  During the ensuing interrogation, which lasted about two hours, Schmidtbauer admitted manufacturing methamphetamine at his home on four occasions during June and July 1999.  He explained that he learned about the methamphetamine manufacturing process on the Internet and described how he obtained the chemicals used in the manufacturing process.  Schmidtbauer also disclosed the identity of a partner who assisted him in the manufacturing process.

            Schmidtbauer moved to suppress the evidence discovered during the search of his residence and his statements to police, and the district court denied the motion.  Schmidtbauer waived his right to a jury trial, stipulated to the state’s evidence, and the parties submitted the case to the district court for decision. The district court found Schmidtbauer guilty of first-degree controlled substance crime, conspiracy to manufacture methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2a (Supp. 1999), and Minn. Stat. § 152.096, subd. 1 (1998).

D E C I S I O N

            1.  Schmidtbauer argues that the search warrant application did not establish probable cause. Evidence obtained by a search and seizure that violates a defendant’s constitutional rights is inadmissible.  State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978).  Both the United States and Minnesota Constitutions require the existence of probable cause for a search warrant to be issued.  Id.

            A “reviewing court must give deference to the magistrate’s determination of probable cause.”  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  The Supreme Court has adopted a totality of the circumstances test to determine whether there is probable cause to issue a search warrant.  Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983).

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.

 

Id. at 238, 103 S. Ct. at 2332; see also Albrecht, 465 N.W.2d at 108 (same test applies under state constitution).   In reviewing the sufficiency of the affidavit under a totality of the circumstances test, a court must review the affidavit as a whole, not each component in isolation.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  “[T]he resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants.’”  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)).

            The information provided by the informant in this case was based on his or her personal observations during the two months preceding issuance of the search warrant.  See Wiley, 366 N.W.2d at 269 (recent personal observation of incriminating conduct is the preferred basis for an informant’s knowledge).

            Schmidtbauer argues that Wyatt’s affidavit did not establish the informant’s reliability or veracity and, therefore, probable cause was lacking.

An informant’s reliability may be established by sufficient police corroboration of the information supplied, and corroboration of even minor details can “lend credence” to the informant’s information where the police know the identity of the informant.

 

State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).

            Ploof verified the informant’s description of the layout of the Schmidtbauer property, numerous junk cars in the yard, and the appearance of the garage, house and barn.  See State v. Lozar, 458 N.W.2d 434, 440 (Minn. App. 1990) (concluding that police corroboration of informant’s detailed description of defendants’ property and buildings lent sufficient credence to informant’s tip), review denied (Minn. Sept. 28, 1990).  The information provided by the informant that Schmidtbauer had large quantities of pseudoephedrine and had recently bought a new mechanics toolbox was corroborated by Boser’s lawful observations inside Schmidtbauer’s garage.  These are facts that would not be available to the general public.  See State v. Cook, 610 N.W.2d 664, 668-69 (Minn. App. 2000) (distinguishing between information easily obtainable by anyone and information indicating informant had inside information about defendant); cf. Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417 (1990) (caller’s ability to predict individual’s future behavior demonstrated inside information that the general public would not have known; “it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities”).  The fact that the informant gave detailed descriptions of Schmidtbauer’s property, buildings, methamphetamine laboratory, and glassware collection also indicates reliability.  State v. Lindquist, 295 Minn. 398, 400-01, 205 N.W.2d 333, 335 (1973).

            The search warrant application was also supported by Boser’s observation of a large bowl, about one-third full of Sudafed pills, and a plastic bag containing about 50 empty Sudafed boxes.  Sudafed contains pseudoephedrine, the main ingredient used in manufacturing methamphetamine.  Possession of a precursor chemical, in a quantity inconsistent with personal use and placed in a container in a manner consistent with the methamphetamine manufacturing process, is a factor supporting the probable cause determination.  Cf. United States v. Anton, 633 F.2d 1252, 1254 (7th Cir. 1980) (defendant’s receipt of large quantities of precursor chemicals and officers’ observations of movement of chemical pails and empty containers in trash supported strong inference that controlled substance was being manufactured).

            Schmidtbauer argues that Boser’s observations should not be considered because the information was stale.  The Supreme Court has stated:

[P]roof must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time.

 

State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984) (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)).

            Appellate courts have refused to set arbitrary time limits in obtaining a warrant or to substitute a rigid formula for the judge’s informed decision.  Instead, the question must be determined by the circumstances of each case.  In viewing the circumstances of each case, magistrates must apply practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.  The court’s approach should be one of flexibility and common sense.

 

Id. at 193 (citations and quotations omitted).

            Applying this standard, Boser’s observations did not constitute stale information.  Boser’s observations occurred less than six weeks before the search warrant was issued, and Wyatt’s testimony showed that a methamphetamine manufacturing lab is an enduring, ongoing operation.  See id. at 193-94 (factor to consider in determining whether information is stale is whether there is any indication of ongoing criminal activity); see also Lozar, 458 N.W.2d at 441 (information about marijuana growing operation that was three and a half weeks old not stale); Jannetta, 355 N.W.2d at 194 (upholding probable cause determination based on information by informant about ongoing sexual abuse of children and child pornography that had occurred two years earlier).  Moreover, the affidavit must be considered in its entirety, so Boser’s observations must be considered in light of the information provided by the informant about methamphetamine manufacturing and sales occurring repeatedly during the preceding two months and about the request to purchase anhydrous ammonia just a few days before the search warrant was issued.

            In light of the deference owed to the magistrate’s determination, considering Boser’s observations together with the detailed information provided by the informant and police corroboration of that information, the search warrant was supported by probable cause.

            2.  Schmidtbauer argues that the search warrant application contained material omissions that defeat probable cause.

            A search warrant may be held void and the fruits of the search excluded from evidence, if it is demonstrated by a preponderance of the evidence that the affiant, knowingly or with reckless disregard for the truth, included a false statement in the affidavit.

 

State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676-77 (1978)), review denied (Minn. Dec. 29, 1989).

            The Minnesota Supreme Court has extended Franks to apply to material omissions from the affidavit.  The test is whether, after supplying the omissions, the affidavit established probable cause.

 

Id. (citations omitted).

            Schmidtbauer argues that Wyatt deliberately or recklessly omitted from the affidavit (1) the fact that the informant was in custody on a criminal charge when he provided the information to Ploof and (2) the informant’s criminal history.  Because the record indicates that the informant had no criminal convictions, the only issue is whether the omission of the fact that the informant was in custody was material.

            Schmidtbauer’s argument that the omission caused the magistrate to presume the informant’s reliability is contrary to law.

A first-time citizen informant who has not been involved in the criminal underworld is presumed to be reliable, but the affidavit must specifically aver that the informant is not involved in criminal activity.  Similarly, an informant’s reliability may be demonstrated where the informant has previously given police correct information, but the affidavit must explicitly state this to be the case.

 

Ward, 580 N.W.2d at 71 (citations omitted).

            Here, the affidavit did not state that the informant was not involved in criminal activity; nor did the affidavit state that the informant had previously given police correct information.  Rather, as we have already addressed, the informant’s reliability was established by police corroboration of the information provided by the informant and the detailed degree of the information.  In light of this showing of reliability, the district court did not err in finding that the omission of the informant’s in-custody status from the search-warrant application was not material.  Having determined that the omission was not material, we do not reach the issue of whether the omission was made deliberately or recklessly.

3.  Schmidtbauer argues that his statement to police was not voluntary.

For a statement obtained from an accused during custodial interrogation to be admissible, the state must prove by a preponderance of the evidence * * * that the accused freely and voluntarily gave the statement.

 

State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).  This court will not reverse the district court’s findings of fact unless they are clearly erroneous.  State v. Erickson, 449 N.W.2d 707, 710 (Minn. 1989).  But this court makes “an independent determination of voluntariness on the facts as found.”  Id.

The voluntariness of a statement or confession depends on the totality of the circumstances.  Relevant factors include the defendant’s “age, maturity, intelligence, education and experience,” as well as the defendant’s ability to comprehend.  The nature of the interrogation is also relevant, including its length and surrounding circumstances, and whether the defendant was denied any physical need or access to friends.  A statement is involuntary if police actions were so coercive, manipulative and overpowering as to “deprive [] [a suspect] of his ability to make an unconstrained and wholly autonomous decision to speak as he did.”  We look with disfavor upon both implied and express promises made during an interrogation by police but such promises do not automatically render a confession involuntary.

 

State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (citations omitted), cert. denied, 528 U.S. 1165, 120 S. Ct. 1184 (2000) .  “Coercive police activity is a necessary predicate to a finding that a confession is involuntary.”  State v. Camacho, 561 N.W.2d 160, 169 (Minn. 1997) (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521-22 (1986)).

            Schmidtbauer was 33 years old when he was arrested.  The district court found that Schmidtbauer was intelligent and educated and experienced in a variety of areas, including mechanics, construction, computers, software, and chemistry.  The district court also found that there was no evidence that the length of Schmidtbauer’s custody before the interrogation began, four hours, or the duration of his interrogation, two hours with a break after the first hour, in any way bore upon his ability to make a voluntary statement.  The evidence supports these findings, which Schmidtbauer does not dispute.

            Schmidtbauer argues that his confession was rendered involuntary by promises of leniency. Before giving Schmidtbauer a Miranda warning, Wyatt stated:

[A]t this point, with the information we have on you, about the only thing you can do to help yourself is to cooperate with us.  Okay, and the reason I’m here, is if you want to do that, if you’re interested in helping yourself out here, is ah, we’ll get a full statement from you - I want - what I’m hoping you’ll do is be completely honest with us, ah, answer the questions we have truthfully, honestly, complete answers, don’t hold anything back and well obviously that’s going to help your situation.  * * * Otherwise, and again, you know, I’ll read you your rights, it’s going to be completely up to you if you want to talk to us and if you don’t that’s fine.  But if you don’t, you’re taking the hit for the lab.  Okay, and - and this is a chance for you to ah, to tell your side of the story and ah, like I said, I’m not so much interested in you as I am in the other guy.   And the people ah, that taught you how to do this and that kind of thing * * *.

 

After Wyatt read Schmidtbauer his Miranda rights, Baumann stated:

[T]his is your opportunity to lighten the load.  We can’t sit in here and make you promises that - that we’re going to take you out of here tonight and let you go home and any of that kind of stuff.

 

            * * * *

 

            But * * * we can make known to the prosecutor your cooperation and based on that cooperation, he can make some decisions on whether or not he wants to request from the court that they depart lower than the ah sentence.  Now, I don’t know how important it is to you that ah, ah, you’re not in jail for eight four months or - or what ever it is, but your kids will do a lot of growing up during that time and you’d miss out on a - on a awful lot and ah, to be real honest with you, I think you owe it to your kids to lighten the load a little bit because ah, you put them through hell tonight.  So now you got to make some decisions if you want to help yourself out and if you want to help your family out, okay.

 

            Schmidtbauer argues that the above-quoted statements constituted a specific promise of a reduced sentence for a truthful statement that included the identity of a coconspirator.  Schmidtbauer urges this court to follow In re the Welfare of D.S.N., 611 N.W.2d 811 (Minn. App. 2000), and hold that his statement was involuntary.  This case, however, is distinguishable from D.S.N. in several respects.  First, Schmidtbauer was about 17 years older than the appellant in D.S.N.  Second, neither Wyatt nor Baumann made any specific promises to Schmidtbauer, and they did not threaten him with any negative consequences if he declined to make a statement.  Wyatt and Baumann stated that Schmidtbauer’s only opportunity to receive a reduced sentence was to cooperate with police, but Baumann expressly stated that the decision whether to seek a downward sentencing departure would be made by the prosecutor and that Wyatt and Baumann could only make a recommendation to the prosecutor.  See State v. Beckman, 354 N.W.2d 432, 437 (Minn. 1984) (promise to bring cooperation to trial court’s attention did not render confession involuntary); see also D.S.N., 611 N.W.2d at 814 (provided that the promises did not rise to the level of nonprosecution, the use of deceit or promises does not automatically render a confession involuntary).  Third, although the record does not indicate that Schmidtbauer had prior experience with the criminal justice system, his statement shows that he understood that he would be charged with manufacturing methamphetamine and that he faced an eight-year prison sentence.  Schmidtbauer’s statement also indicates that he did not expect to receive a reduced sentence in exchange for his statement.  Specifically, Schmidtbauer stated that the police did not like him and that he was “getting real scared because * * * everybody’s going to get a deal here except me.”  Also, near the end of the first hour of interrogation, when Wyatt reiterated that Schmidtbauer’s cooperation could result in a reduced sentence, Schmidtbauer replied, “Seven years -- thirty days.”

Considering the totality of the circumstances, particularly the district court’s findings on Schmidtbauer’s intelligence and understanding and on the nature of the interrogation and the fact that Schmidtbauer’s statement indicated that he did not expect to receive a reduced sentence in exchange for his cooperation, we conclude that Wyatt and Baumann’s statements that Schmidtbauer could receive a reduced sentence if he cooperated did not render Schmidtbauer’s confession involuntary.

            Affirmed.

 

 

R. A. RANDALL, Judge (concurring specially).

            Ultimately I concur in the result.  The state agreed to recommend a sentence for Schmidtbauer at the low end of the presumptive guideline range and agreed to recommend him to the Department of Corrections for its boot camp program.  Thus, some consideration or leniency was extended to Schmidtbauer and, by the slimmest of margins, I can find that the bargain that induced Schmidtbauer's confession was kept.

            The majority accurately reprints the record setting out the statements by law enforcement to Schmidtbauer, which he claims made his confession not an intelligent voluntary confession, but rather an intelligent acceptance of the state's offer to mitigate the crime if he would confess.  I accept Schmidtbauer's version of the bargain, not the state's version.  Before giving Schmidtbauer his Miranda warning, Wyatt stated:

[A]t this point, with the information we have on you, about the only thing you can do to help yourself is to cooperate with us.  Okay, and the reason I'm here is if you want to do that, if you're interested in helping yourself out here, is ah, we'll get a full statement from you - I want - what I'm hoping you'll do is be completely honest with us, ah, answer the questions we have truthfully, honestly, complete answers, don't hold anything back and well obviously that's going to help your situation.  * * *  Otherwise, and again, you know, I'll read you your rights, it's going to be completely up to you if you want to talk to us and if you don't that's fine.  But if you don't, you're taking the hit for the lab.  Okay, and - and this is a chance for you to ah, to tell your side of the story and ah, like I said, I'm not so much interested in you as I am in the other guy.  And the people ah, that taught you how to do this and that kind of thing * * * .

(Emphasis added.)  These are not generic "puff" statements like "it's nice to tell the truth because, well, it’s just nice" or "lots of people feel better once they have unburdened themselves of something that may be giving them a problem."  The specific intent of what Wyatt told Schmidtbauer is that he could "help himself" by giving a full statement about the meth lab and the involvement of other possible defendants.  It is pretentious at best (disingenuous fits closer) for the state to argue any other reasonable inference.

            Dan Baumann, the other interrogator, must have done a little homework on "family values" as he got right into it with the following, taken verbatim from the record:

Now, I don't know how important it is to you that ah, ah, you're not in jail for eight four month[1] or - or what ever it is, but your kids will do a lot of growing up during that time and you'd miss out on a - on a awful lot and ah, to be real honest with you, I think you owe it to your kids to lighten the load a little bit because ah, you put them through hell tonight.  So now you got to make some decisions if you want to help yourself out and if you want to help your family out, okay.

 

(Emphasis added.)  Again, the only fair reading of the record is that Baumann repeated the promise to Schmidtbauer that he would get more lenient treatment if he confessed than if he did not confess.  I can only conclude that this was not a true volunteered confession by Schmidtbauer, but was rather a confession induced by Wyatt and Baumann, and Schmidtbauer specifically relied on an inducement to confess.

            I can agree with the majority on the result because toward the end, the prosecutor did give something of value to Schmidtbauer and his attorney by way of a recommendation, and non-opposition, to a slightly reduced sentence.

            In the future, I suggest that prosecutors make it clear to the law enforcement personnel in their jurisdiction that they should not make plea bargains with defendants unless they have been cleared with the county attorney's office first, and in the event that they are not, the county attorney's office, whether law enforcement likes it or not, will enforce the plea bargain and/or the leniency law enforcement promised, because no one arrest is worth sacrificing the integrity of the county attorney's office and the court system.

            This confession hangs in there by the slimmest margins.  What makes it even more egregious is that the bulk of promises were made to Schmidtbauer before he was given his Miranda warning and yet at a time when he was in custody and entitled to the constitutional protections of the Miranda warning before being questioned.  See Dickerson v. United States, 530 U.S. 428, __, 120 S.Ct. 2326, 2336 (2000) (noting later cases reaffirmed Miranda’s "core ruling" that unwarned statements are inadmissible in state's case in chief).  The logic behind Miranda is sound: "a confession forced from the mind by the flattery of hope * * * comes in so questionable a shape * * * that no credit ought to be given to it."  Id. at __, 120 S.Ct. at 2330 (citation omitted).  The judiciary must be aware of this flattery in order to protect against it.

            The undisputed sequence of events here, meaning promises made to Schmidtbauer before the Miranda warning was given, and then, later on, more promises made to Schmidtbauer after the Miranda warning was given, highlights the logic and the need for law enforcement to comply with the recording requirement during custodial interrogations.  See State v. Scales, 518 N.W.2d 587, 592 (1994) (requiring electronic recording of custodial interrogations in all places of detention and elsewhere when feasible).

            As I stated, to me, this confession goes in by the thinnest of constitutional margins.  It is a hypothetical issue, but I willingly state that had the district court suppressed this confession on the grounds that it was improperly introduced and involuntary, I would have had no hesitation in affirming the district court.

 



[1] He meant the presumptive sentence of 84 months.