This opinion will be unpublished and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
Christopher M. Miller,
File No. K700407
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)
Kurt B. Glaser, 250 Wymann Building, 331 North Second Street, Minneapolis, MN 55401 (for appellant)
Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Forsberg, Judge.*
In this appeal from convictions of felon in possession of a firearm and fifth-degree controlled substance crime, appellant Christopher M. Miller argues that a warrant to search his home was improperly issued because police (1) did not corroborate information they obtained from informants; and (2) failed to disclose material facts in the warrant application. Miller also argues that the district court improperly considered information that was not included in the search warrant application. We affirm.
Miller lived in a home that was under police surveillance for several weeks. On February 18, 2000, police officer Jamie Gilbert saw Jeffrey Wilcowski get into a pick-up truck parked at Miller’s home and drive away. After running a driver’s license check and discovering that Wilcowski’s license had been revoked, Gilbert stopped Wilcowski. Gilbert testified that he noticed the odor of marijuana on Wilcowski and questioned Wilcowski about the marijuana. Wilcowski said that he had just come from Miller’s house and that he had smoked marijuana at Miller’s house within the last hour or two. Wilcowski also told Gilbert that he had been at Miller’s house the day before and saw about two ounces of marijuana in Miller’s closet.
During a search of Wilcowski’s truck and person, Gilbert found marijuana and drug paraphernalia. Gilbert told Wilcowski about the possible drug charges and fines, and Wilcowski asked Gilbert if they could “work something out.” Gilbert suggested that something might be worked out if Wilcowski could provide further information about drug activities at Miller’s home. Wilcowski told Gilbert that Miller had eight to ten mushrooms in an ice-cream tin next to his bed and approximately two ounces of marijuana in a small, white Avon bag. Gilbert took Wilcowski back to the police station and questioned him further. During questioning, Wilcowski said he bought the marijuana Gilbert found in the pick-up truck at Miller’s a week or two earlier.
During surveillance, police saw ten different cars in front of Miller’s home, usually late at night and into early morning. One of the cars frequently at the house was driven by Stephanie Strand, who police knew had been convicted in 1999 of possession of a controlled substance. In addition, a confidential reliable informant (CRI) who had been at Miller’s home during the four weeks before Miller was arrested reported seeing Miller smoking marijuana. The CRI also reported that Miller had painted all the windows on the home white so that no one could see inside while Miller was using marijuana.
Gilbert drafted an affidavit and search-warrant application that contained the information supplied by Wilcowski and the CRI. Gilbert had been an officer for only 14 months at the time, and the search-warrant application he drafted was his first. Gilbert did not mention in the affidavit that he had seized marijuana and drug paraphernalia from Wilcowski or that he and Wilcowski had agreed that Wilcowski would provide information about Miller in exchange for the state dropping the potential charges against Wilcowski. A search warrant was issued based on Gilbert’s affidavit, and police searched Miller’s home. They found marijuana, mushrooms, and an assault rifle. At an omnibus hearing, the district court denied Miller’s motion to suppress the evidence found during the search, finding that there was probable cause to support the search warrant. Miller entered a guilty plea and reserved his right to appeal the denial of his suppression motion.
1. 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). Probable cause must exist before a search warrant can be issued. Id. In determining whether a warrant is supported by probable cause, this court accords great deference to the issuing judge’s decision. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). We review the determination of probable cause to ensure that the issuing judge had a substantial basis to conclude probable cause existed. Id. at 787-88. “[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)).
In determining whether probable cause exists, a court “may consider only the information presented in the affidavit offered in support of the search-warrant application.” State v. Hochstein, 623 N.W.2d 617, 622 (Minn. App. 2001) (citing State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996)). 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). The existence of probable cause based on an informant’s tip is determined by the totality-of-the-circumstances test:
The task of the issuing [judge] 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.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); see also State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (applying totality-of-the- circumstances test).
Miller argues that the warrant to search his home was not supported by probable cause because Wilcowski’s statements about drug activities at the home were not corroborated and the application contained no information to support Wilcowski’s reliability. But critical information obtained from Wilcowski was corroborated. Wilcowski’s statement that Miller possessed marijuana was corroborated by the CRI, who said he saw Miller using marijuana within four weeks of the arrest. Miller claims that the statement in the affidavit that “[Gilbert] has learned from Chief King that this CRI has been with Miller when Miller has purchased marijuana” says absolutely nothing about drugs being at Miller’s home. However, the affidavit also contains the statement that “the CRI has been at Miller’s residence in the last 4 weeks and has observed Miller smoke marijuana.” This statement specifically indicates that the CRI witnessed recent drug use by Miller at his home.
Furthermore, Wilcowski told police officers that he had smoked marijuana at Miller’s house an hour or two before Gilbert stopped him. This statement is corroborated by the fact that Gilbert smelled marijuana on Miller at the time of the stop. The district court did not make a finding as to whether Wilcowski’s statement was made before or after the deal with the police was discussed, but the court did find that the statement was made before the deal was worked out. The record supports this finding. In reviewing a probable cause determination, we defer to the district court’s findings of fact and will not reverse them unless they are clearly erroneous. State v. Bradford, 618 N.W.2d 782, 794 (Minn. 2000).
The search warrant was supported by other factors as well. Miller had previously been convicted of a felony drug offense. See State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (concluding that defendant’s criminal history was properly considered as factor in totality of circumstances for finding probable cause). Also, the CRI told police that Miller had painted the windows of his house to avoid being seen using drugs, and Gilbert corroborated this by direct observation. See State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (explaining that reliability may be established by corroboration of minor details).
Finally, in the weeks leading up to the arrest, police saw several different cars parked in front of Miller’s residence, one of which was driven by a person known to have been convicted of possessing a controlled substance, Stephanie Strand. Miller claims that this fact is misleading, because Gilbert never stated in the affidavit that the police saw anyone leave the cars and go into Miller’s house. However, when considering the existence of probable cause, the issuing judge applies “practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” State v. Janetta, 355 N.W.2d 189, 193 (Minn. App. 1984) (quotation omitted), review denied (Minn. Jan. 14, 1985). Probable cause is established if “certain identifiable objects are probably connected with certain criminal activity and may probably be found at the present time”. Id. (citations omitted). Miller also argues that the observation of Strand’s car in front of Miller’s house shows no nexus between her and Miller because she worked as a bartender at a nearby bar. However, the bar where Strand worked was a block and a half north of Miller’s home, and there is no explanation why she would park in front of Miller’s home in order to work a block and a half away. When viewed as a whole, the affidavit demonstrated that Miller was involved in activities indicative of, and consistent with, drug possession.
2. Miller argues that the search warrant should have been invalidated because Gilbert failed to disclose in the warrant application that (1) he made a deal in which he promised to exonerate Wilcowski in exchange for information against Miller; and (2) the marijuana and paraphernalia found in Wilcowski’s truck were not obtained from Miller.
A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probable cause. A misrepresentation is “material” if when set aside there is no longer probable cause to issue the search warrant. If so, then the court must determine that the police deliberately or recklessly misrepresented facts, because innocent or negligent misrepresentations will not invalidate a warrant.
State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (citations omitted).
The district court concluded:
3. The failure to include the fact that the basis for much of the information contained in the affidavit in support of the application for the search warrant was obtained as part of a deal was a material omission and should have been included by the deputy.
4. The affidavit supporting the search warrant contains information sufficient to support a finding of probable cause with or without the omitted information.
These findings are contradictory in that they indicate that the omission was material and that the affidavit supported a finding of probable cause with or without the omitted information. The omission was not material if after it was set aside, there was still probable cause to issue the warrant.
But even if the misrepresentation was material, there is no evidence to suggest, and the district court did not find, that Gilbert deliberately or recklessly misrepresented the facts. Gilbert was a new police officer, and the application for a warrant to search Miller’s house was the first warrant application he drafted. Under these circumstances, the fact that Gilbert failed to include information about the deal that prompted Wilcowski’s cooperation and information about the source of Wilcowski’s marijuana is not sufficient by itself for us to conclude as a matter of law that the omissions were intentional or reckless, rather than a negligent failure to recognize the significance of the omitted information.
3. Finally, Miller contends that in determining that the search warrant was valid, the district court improperly considered testimony that Gilbert gave at the omnibus hearing that was not contained in the search-warrant application. At the omnibus hearing, Gilbert testified that Wilcowski told him that he bought marijuana at Miller’s house a week or two before he was stopped. This information was not contained in the affidavit, but the district court included it in its findings of fact. In determining the existence of probable cause, the reviewing court is restricted to considering only the contents of the affidavit and not an officer’s knowledge. Kahn, 555 N.W.2d at 18. Therefore, the district court’s consideration of Gilbert’s testimony was improper.
But even without the improper information, there was still sufficient evidence to establish probable cause to issue the warrant. The information in the application indicated that Miller possessed controlled substances at his home. It was not necessary to also demonstrate that he was selling controlled substances. Therefore, the error of considering information that was not contained in the affidavit was harmless and does not invalidate the search warrant. Minn. R. Crim. P. 31.01.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.