This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Kenneth Terrell Lawrence,
Hennepin County District Court
File No. 00010930
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.
Late one evening in February 2000, Minneapolis police officers, armed with a no-knock, nighttime search warrant, entered appellant’s Minneapolis apartment. The officers seized a handgun, along with other items, and arrested appellant for possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000) (possession by felon). Prior to trial, appellant moved to suppress the firearm, contending that there was no probable cause to issue the search warrant. The trial court denied the motion and after a jury trial, appellant was convicted of one count of felon in possession of a firearm.
The affidavit in support of the search-warrant application contained the following information:
1. The affiant officer had more than two years police experience, was trained in narcotics enforcement, and had been involved in “numerous” narcotic investigations and arrests.
2. Affiant received information from a confidential reliable informant of heavy crack-cocaine dealing from an identified basement apartment in Minneapolis. Affiant also received information from several other citizen informants regarding the sale of narcotics from the same building.
3. Affiant corroborated the informant and other informants’ information through surveillance of the apartment complex, noting a large amount of foot traffic at the front entrance to the building, including what the affiant perceived to be “lookouts” or “runners” commonly found with narcotic sales.
4. Affiant conducted two controlled narcotic purchases at appellant’s residence by instructing a confidential reliable informant to make a purchase while affiant and another officer observed the informant enter and exit the building within three minutes.
5. After each purchase, the informant would produce a rock of crack cocaine that the informant claimed to have purchased from the basement apartment first identified. The informant told the officers that a black male known as “Ken” opened the front door and instructed the informant to go to the basement apartment. A woman answered the door and gave the informant a rock of crack cocaine from a large bag that was on the kitchen table. The informant also told them that Ken was the boyfriend of the woman and that he entered the apartment while the informant was there and pulled a plastic baggie with a large amount of crack from his pocket, saying something about “having more dope for later.”
6. Through further investigation, affiant learned the identity of the woman at the apartment and learned that the woman had several prior narcotic arrests, including an arrest by affiant in 1998.
7. The field test of the crack cocaine purchased by the informant tested positive.
8. The informant had given information in the past to the Minneapolis police that had proven reliable and accurate, leading to other narcotic-related arrests.
The affidavit also included a provision requesting authorization for a nighttime search because “the sales of controlled substances [were] heaviest during nighttime hours” and because “the large amount of foot traffic” and “the presence of multiple ‘lookouts’” would make it easier to approach the apartment building “under the cover of darkness” to “help prevent the loss or destruction of the objects of the search.” Similarly, the affidavit requested authorization for an unannounced entry to “ensure the safety of the peace officers” and to “help prevent the loss or destruction of the evidence” because the objects of the search could be “easily disposed of.”
In determining whether a warrant is supported by probable cause, this court does not review the magistrate’s decision de novo but accords great deference to the probable-cause finding. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). Review is limited to ensuring that “the issuing judge had a ‘substantial basis’ for concluding that probable cause existed.” 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)). “[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)). Elements indicating 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. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citations omitted).
Arguing that the search was unlawful, appellant asserts that the affidavit in support of the search warrant failed to establish the credibility of the informant and failed to provide sufficient information to justify a nighttime search and a no-knock entry.
1. Informant’s Credibility
The reliability of an informant from the criminal “underworld or its periphery * * * cannot be assumed.” State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978). In determining whether an informant’s information provides sufficient probable cause, the issuing judge must consider the totality of the circumstances, including the informant’s veracity and basis of knowledge. Souto, 578 N.W.2d at 750. When making this assessment, “[a]ll of the facts relating to the informant should be considered in weighing reliability.” Id. (citation omitted).
Appellant asserts that although the affidavit in this case stated that the informant had provided Minneapolis police officers with reliable information in the past, the affidavit failed to include “any specific information” demonstrating how the information had proven reliable. A primary indicia of an informant’s veracity is a proven track record of providing the police with reliable information. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). But further elaboration on “the specifics of the CRI’s veracity is not typically required.” Id. (citations omitted); State v. Wiley, 366 N.W.2d 265, 269 & n.1 (Minn. 1985) (concluding that although more detail is preferable, a statement that the informant “has been used over several years successfully” was sufficient to establish informant reliability). The statement given here that “[t]his CRI has given information in the past to Minneapolis Police Officers, which has * * * always proven reliable and accurate” and “has lead to arrests and successful convictions of those persons trafficking in illegal narcotics,” is sufficient to demonstrate the veracity of the informant.
The informant’s credibility is further supported by affiant’s corroboration of information provided by the informant. See Siegfried, 274 N.W.2d at 115 (“A third way of satisfying the veracity prong is by showing that details of the tip have been sufficiently corroborated so that it is clear the informant is telling the truth on this occasion.”). Affiant was able to corroborate the informant’s report that he had purchased crack cocaine by (a) determining and reporting the seller’s criminal history of narcotic arrests, including an arrest by affiant in 1998; (b) reporting that the substance bought by the informant tested positive for cocaine; and (c) stating that surveillance of the apartment revealed an unusual traffic pattern in and out of the building and the presence of individuals who appeared to act as lookouts signaling to people and cars passing by.
Appellant asserts that because affiant later testified that he actually conducted three controlled buys, not two, and used multiple informants, not just one, the misrepresentation of this information invalidates the search warrant. Not only is this information of little significance, but it is also clear from the officer’s testimony that he was acting in good faith and not recklessly disregarding the truth. See State v. Doyle, 336 N.W.2d 247, 250, 252 (Minn. 1983) (holding where police do not act in good faith, but act in reckless disregard for the truth, the trial court will set aside the false statements or supply the omissions and decide whether the affidavit still establishes probable cause). Even if the court were to set aside the “misrepresentations,” the affidavit clearly establishes the reliability of at least one of the informants, who in turn provided sufficient probable cause for the issuance of the warrant.
2. Nighttime Search
Appellant next asserts that the affidavit did not contain sufficient evidence to justify a nighttime search of appellant’s home. As provided by statute, the police may execute a search warrant only between the hours of 7:00 a.m. and 8:00 p.m. unless the affidavit states that a nighttime search “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. § 626.14 (2000). In support of the request for a nighttime search, affiant sufficiently demonstrated that, taking into account his own experience, the search would be successful only if conducted at night where drug activity at the apartment was heavier at night and the cover of darkness would help prevent the destruction of the objects of the search. See State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978) (explaining that the statute requires “some showing to the magistrate that the warrant can only be executed successfully in the nighttime” (citation omitted)).
3. No-Knock Entry
Appellant also claims that the affidavit did not contain sufficient information to justify a no-knock entry. A police officer must have a “reasonable suspicion” that knocking and announcing under the circumstances would endanger the officers or inhibit the investigation of the case by allowing for the destruction of evidence. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (stating reasonable suspicion is “something more than an unarticulated hunch, * * * the officer must be able to point to something that objectively supports the suspicion at issue”). Affiant provided reasonable suspicion. The affidavit contained the required boilerplate language along with specific, objective information concerning the particular circumstances of the case, mainly, the presence of lookouts at the front entrance that necessitated a no-knock provision. See id. at 321 (concluding that a no-knock warrant was reasonable where the search warrant contained boilerplate language coupled with a specific, objective piece of information pertaining to weapons found on the property).
Moreover, while the officers were preparing to execute the warrant, an informant performed another controlled buy and reported to the officers that there was a person in the apartment “who was holding a hand gun at the door where people would come in.” This information alone provides the officers with a sufficient basis for searching the apartment unannounced. See Lien, 265 N.W.2d at 839 (stating that even if the officers do not have advance authorization, they may make an unannounced entry “if facts arising at the threshold strongly indicate that an unannounced entry is necessary” to “successfully execute the warrant”). But see United States v. Tavares, 223 F.3d 911, 918 (8th Cir. 2000) (stating that Lien’s blanket exception to the knock and announce requirement where the “dwelling is being used * * * as an outlet or warehouse for a drug business” has been overruled by Richards v. Wisconsin, 520 U.S. 385, 388, 117 S. Ct. 1416, 1417 (1997), “which held there is no blanket exception to the knock and announce requirement in felony drug cases” (quotation omitted)).
Because the magistrate had a substantial basis for concluding that probable cause existed, the search of the apartment was lawful and the trial court did not err in denying appellant’s motion to suppress the handgun. See State v. Ailport, 412 N.W.2d 35, 39 (Minn. App. 1987) (noting that the exclusionary rule is not directed at good police conduct, where the officers act “in good faith by going to a magistrate and relying on the magistrate to make a determination of probable cause” (citations omitted)), review denied (Minn. Nov. 18, 1987). Nor did the trial court err in finding that there was a “basis” for the no-knock and nighttime provisions where the affidavit contained sufficient information to establish that a nighttime, unannounced entry would increase the probability of a successful search.
 At the Rasmussen hearing, affiant testified that two separate confidential reliable informants were used for each purchase.