This opinion will be unpublished and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
State of Minnesota,
Karl Thomas Holmberg,
Dorine Kay Holmberg,
Filed January 22, 2002
Benton County District Court
File No. K4-99-1459
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55155-6102; and
Robert J. Raupp, Benton County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)
John D. Ellenbecker, 803 West St. Germain Street, P.O. Box 1127, St. Cloud, MN 56302-1127 (for appellants)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Hanson, Judge.
In these consolidated appeals, appellants challenge their convictions for aiding and abetting fifth-degree controlled substance crime, arguing that the district court erred in preventing appellants from cross-examining an officer-affiant who stated in a search warrant application that appellants had been telephoning known and convicted narcotics traffickers. We affirm.
On November 2, 1999, after searching the residential garbage of appellants Karl and Dorine Holmberg and discovering marijuana stems, seeds, and material, Benton County Deputy Sheriff Neal Jacobson applied for a search warrant for appellants' rural Benton County residence. Jacobson's application was based on the following information that appeared in his affidavit accompanying the warrant application:
Your affiant is aware that [in] June, 1998, Deputy Troy Heck of the Benton County Sheriff's Department who at this time was assigned to the Central Minnesota Narcotics Task Force conducted an investigation on Karl Thomas Holmberg, Date of Birth 05-09-59, who resided at 225 190th Avenue Northeast, Princeton, MN 55371, Township of Glendorado, State of Minnesota. Your affiant is aware that Holmberg had been making numerous long distance telephone calls on a daily basis to known and convicted narcotics traffickers through the investigation of other persons that have been listed on Holmberg's telephone tolls.
Your affiant received the long distance telephone tolls on June, 1999, and compared the phone tolls to the tolls received by Deputy Troy Heck and noted that the same long distance telephone numbers were observed on the June 1999, telephone bill that were also on the June, 1998, telephone bill. Your affiant is aware that numerous telephone calls to certain telephone numbers and persons is consistent with drug trafficking.
Your affiant knows through a check of the State of Minnesota's computerized criminal history records that Karl Thomas Holmberg, Date of Birth 05-09-59, has a prior conviction for Drugs – Prohibited Acts.
On 11-01-99, at approximately 1130 hours, your affiant received from Ace Disposal Inc., garbage that your affiant observed prior to pickup by Ace Disposal Inc., at the end of the driveway at 225 190th Avenue Northeast. Your affiant conducted a search of the garbage received and obtained the following items as evidence: Several marijuana stems from a marijuana plant, one Ziploc baggy approximately 11 1/2 inches by 10 1/2 inches that contained a green vegetable material and seed that NIK tested positive for the presence of marijuana. Your affiant is aware that a bag of this size is commonly used for trafficking in larger quantities of controlled substances. Your affiant also located unused coffee grounds that are commonly used in the trafficking of large quantities of controlled substances. The coffee grounds are used to displace the odor of controlled substances in an attempt to not be detected by a drug sniffing canine. Your affiant located seven smaller sandwich baggies that are commonly used to package controlled substances. Your affiant observed several papers that had directions written on them to locations that your affiant believes are in the city of St. Cloud and the Minneapolis/St. Paul area with no exact locations or names written on them. Your affiant located a paper with several hundred dollar amounts written on it that is commonly observed of drug traffickers record keeping. Your affiant located documents with the names Karl T. Holmberg, Dorine Kay Holmberg, and Jeremiah Holmberg * * * . Your affiant checked in records at the Benton County Sheriff's Department and found a Dorine Kay Holmberg, Date of Birth 08-09-61, and Jeremiah Thomas Holmberg, Date of Birth 12-28-80, listed at 225 190th Avenue Northeast, Princeton, MN 55371.
The search warrant was signed and executed on the same day. Among the items seized were 240 grams of marijuana, marijuana cigarettes, trays with marijuana residue, a gram scale, and drug paraphernalia. Once the residence was secured, appellants were questioned individually without receiving a Miranda warning. Several weeks after appellants' home was searched, appellants were charged with aiding and abetting fifth-degree controlled substance crime under Minn. Stat. §§ 152.025, subds. 2(1), 3(a), 609.05, subd. 1 (1998).
At the contested omnibus hearing, appellants moved the district court to suppress the statements that they gave without receiving a Miranda warning. They also moved to suppress the evidence seized, contending that Jacobson's search-warrant application and accompanying affidavit did not establish probable cause. Appellants requested an opportunity to cross-examine Jacobson about his statement in his affidavit that appellants made several telephone calls on a daily basis to "known and convicted narcotics traffickers." Appellants asserted that they should be afforded this opportunity in order to demonstrate that Jacobson intentionally or recklessly misrepresented material facts to the issuing court. The state objected, arguing that the information was confidential because it was part of an ongoing investigation.
The district court found that appellants failed to produce any evidence that undermined the affidavit's integrity, denied appellants' request to question Jacobson, and denied appellants' motion to suppress the evidence seized during the search of appellants' residence. The district court also found that appellants should have been apprised of their Miranda rights before interrogation and granted appellants' motion to suppress their statements.
Following a bench trial, the district court found appellants guilty of the charged crime and entered judgment accordingly. In a consolidated appeal, appellants now challenge their convictions and the district court's omnibus-hearing order that denied their request to cross-examine Jacobson.
Appellants argue that the district court erred in denying them leave to cross-examine Jacobson about his reference to numerous calls placed by appellants to known and convicted narcotics traffickers. Appellants contend that Jacobson's reference was vague and appellants should have been allowed to cross-examine him to determine if he intentionally or recklessly misled the issuing court on the question of probable cause.
In determining whether a search warrant is supported by probable cause, an appellate court's review is limited to ensuring that the issuing court had "a substantial basis for concluding that probable cause existed." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation and citation omitted). In this context, substantial basis means a fair probability, considering the totality of the circumstances, "that contraband or evidence of a crime will be found in a particular place." Id. (quotation and citation omitted). A reviewing court should afford great deference to the issuing court's determination and "the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded warrants." State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).
A search warrant application must provide the issuing court with sufficient factual information to support probable cause. State v. Doyle, 336 N.W.2d 247, 249 (Minn. 1983). If the search warrant application contains intentional or reckless misrepresentations of fact that are material to the probable cause determination, 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). The misrepresentations must be demonstrated by a preponderance of the evidence. State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989). A misrepresentation is material if probable cause no longer exists when the misrepresentation is excluded. Id. An innocent mistake or nonmaterial misrepresentation does not constitute a knowing or reckless material misstatement of fact. State v. Braasch, 316 N.W.2d 577, 579 (Minn. 1982).
The district court, appellants, and the state analyzed this issue by analogizing to cases that involve affidavits supporting search warrant applications that contain information obtained through an anonymous, confidential police informant. We consider other factors to decide this issue.
Appellants did not demonstrate by a preponderance of the evidence that Jacobson intentionally or recklessly misrepresented material facts. Instead, appellants essentially challenged the vagueness of Jacobson's statement. Appellants wanted to know how many phone calls were considered "numerous" and the names of the "known and convicted narcotics traffickers." Vagueness does not equate to an intentional or reckless misrepresentation of a material fact, considering that the narcotics traffickers were part of an ongoing investigation by other law enforcement authorities. Moreover, the vagueness of Jacobson's statement does not further a showing of probable cause.
An affiant must provide the issuing court with more than mere opinions, beliefs, or conclusions. Doyle, 336 N.W.2d at 250. An affiant must also provide "specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998). Jacobson did not refer to specific telephone calls or telephone numbers. Although the district court found that Jacobson knew about the convicted or known narcotics traffickers because they were being investigated by other law enforcement authorities, there was nothing in the record to indicate the content of the telephone calls.
Setting aside Jacobson's statement about appellants' telephone calls to drug traffickers, the remaining facts in his affidavit provide a substantial basis for a finding of probable cause. The key remaining fact is that investigators searched appellants' garbage that had been placed at the end of their driveway for collection and discovered documents that identified appellants, marijuana stems, seeds, and material. The garbage searched came from appellants' single-family home. There is no evidence to show that the garbage could have come from another residence. Accordingly, the part of Jacobson's affidavit that referred to the marijuana stems, seeds, and material found in appellants' garbage provided sufficient facts to support a probable-cause determination. Cf. Dreyer, 345 N.W.2d at 250 (upholding search of defendant's garbage, resulting in discovery of marijuana residue, which led to issuance of search warrant to search defendant's premises).
We conclude that the district court correctly denied appellants’ motions to cross-examine Jacobson and to suppress evidence. There is no basis to reverse appellants’ convictions.
 Appellants did not challenge the legality of this search. Caselaw indicates that a police officer does not violate a defendant's Fourth-Amendment rights in searching garbage that was abandoned. See State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984) (concluding police did not violate defendant's Fourth-Amendment rights in seizing and searching three plastic bags full of garbage that defendant had put out for collection at curb at end of his driveway).