This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Joshua Matthew Matter, et al.,




Filed May 14, 2002


Anderson, Judge


Wright County District Court

File No. K6002615


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Jeremy Clinefelter (certified student attorney), 525 Park Street, Suite 500, St. Paul, MN  55103; and


Thomas N. Kelley, Wright County Attorney, Wright County Government Center, 10 Second Street NW, Buffalo, MN  55313-1193 (for respondent)


David DeSmidt, Robert M. Paule, 309B Calhoun Square, 3001 Hennepin Avenue South, Minneapolis, MN  55408 (for appellants)


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.




U N P U B L I S H E D  O P I N I O N


The district court found appellants guilty of fifth-degree controlled substance possession after they submitted their cases to the court pursuant to a Lothenbach stipulation.  Appellants argue the district court erred when it failed to suppress the incriminating evidence found when police executed a search warrant at appellant Joshua Matter’s home because the warrant application was facially deficient and did not support probable cause.  Respondent argues that even if the warrant application was facially deficient, the search and seizure should be upheld because the police acted in good faith reliance on the warrant application.  We affirm. 


In late October 2000, a confidential reliable informant (CRI) approached an agent from the Wright County Drug Task Force (Task Force).  The CRI informed the agent that he was present in appellant Matter’s home “when a green leafy plant material suspected to be marijuana was presented * * * for sale.”  The CRI informed the agent that Matter was the individual selling the suspected marijuana.  Based on this information, and on stale information from another CRI, the Task Force obtained a search warrant for Matter’s home.

            On October 24, 2000, the Task Force executed the search warrant.  The agents located three people in Matter’s home: Matter, appellant Kathryn Miller, and another individual.  Appellant Miller admitted that she lived in Matter’s home.  Agents also observed and seized green leafy plant material, later determined to be marijuana, and other drug-related items.  Matter admitted that he used and sold marijuana. 

            Appellants’ omnibus hearings were not consolidated, but their attorneys raised the same, and only, issue in their motions to suppress.  Appellants argued that the warrant application did not state a sufficient time-place nexus; therefore, according to appellants, the application was facially deficient and the warrant was not supported by probable cause.

The application stated, in relevant part:

Within the past 72 hours, Agent Kramber did speak with CRI #515, who was present when a green leafy plant material suspected to be marijuana was presented at 315 Rattvik Circle in the city of Buffalo for sale. Your affiant was informed by Agent Kramber that the person selling the suspected marijuana was a Josh Matter. Matter did show the suspected marijuana, which was in a large plastic baggy with a blue seal. 


Appellants argued that the only construction that could be given to this statement is that Kramber spoke with the CRI within 72 hours of the drafting of the application, not that the CRI both spoke with Kramber and witnessed the suspected marijuana within 72 hours of the application. 

The district court concluded, after reconsidering appellants’ motions, that the application statement was ambiguous and capable of two different interpretations.  Because of this ambiguity, the court recognized that the issuing court could have reasonably inferred that the CRI was both present in Matter’s home when the suspected marijuana was presented, and that the CRI spoke with the agent, within 72 hours of the application.  Appellants’ motions to suppress were therefore denied.  This appeal followed.


Appellants argue that the statement in the warrant application was not ambiguous, but was “very clear.”  They argue that the statement was clearly insufficient to establish probable cause for the warrant because the application did not establish a sufficient time-place nexus.  They argue that the application only stated when the CRI spoke with the agent, and did not state when the CRI observed appellants’ alleged criminal activity.

The United States and Minnesota constitutions protect citizens from unreasonable searches and seizures.  See U.S. Const. amend. IV; Minn. Const. art. I, § 10.  “With a few exceptions, a search is valid only if it is conducted pursuant to a valid search warrant.”  State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991) (citation omitted).

A search warrant must be supported by probable cause.  Minn. Stat. § 626.08 (2000); State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (holding that “the presence of probable cause should be determined under a ‘totality of the circumstances’ test”).  This court

reviews a district court’s decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed. 


State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) (citation omitted).  “Substantial basis” in this context means a “fair probability,” given the totality of the circumstances, “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) (quotations and citations omitted); see also State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999) (noting that the district court’s task is merely “to make a practical, common-sense decision” whether probable cause exists (quotation omitted)).

            Probable cause will exist only if the information in the warrant application is not stale under the particular circumstances of the case.  State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). 

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


State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (quotation omitted) (alteration in original).    

            The district court concluded that the application statement was ambiguous, and capable of two interpretations.  It also concluded that the broader of these two interpretations, along with the other statements in the application, provided a substantial basis for the issuing court to conclude that probable cause existed.  We agree.

We conclude that the warrant application did establish a sufficient time-place nexus because the “Within 72 hours” statement is capable of two reasonable interpretations, the broader of which, along with the other allegations, provided a substantial basis for the issuing district court to conclude that probable cause existed. 

We first recognize that warrant applications should not be evaluated in a hypertechnical manner; rather, warrant applications should be reviewed in a common-sense manner with due regard for the fact that the individuals drafting the applications are usually non-lawyers.  Harris, 589 N.W.2d at 791 (warrant applications “are typically drafted by ‘non-lawyers in the midst and haste of a criminal investigation’” (quotation omitted)); State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (suggesting “that the resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants’” (quotation omitted)); State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (noting that reviewing courts must not undermine a district court’s probable-cause determination “by engaging in a ‘hypertechnical examination of the affidavit’” (quotation omitted)). 

A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant * * * . 


Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983) (quotation omitted).

The application states: “Within the past 72 hours, Agent Kramber did speak with CRI #515, who was present when a green leafy plant material suspected to be marijuana was presented * * * .”  A reasonable, common-sense evaluation of this statement would recognize that the 72-hour period could both refer to when the CRI spoke with the agent, and to when the CRI observed the suspected marijuana in Matter’s home.  Indeed, a minor restatement of the sentence could have effected this result: “Within the past 72 hours, the CRI spoke with Agent Kramber and was present when a green leafy plant material was presented * * * .” 

Furthermore, this is certainly not a case where the application is devoid of any time-frame reference, which most likely would have rendered the application facially deficient and lacking in probable cause.  See Harris, 589 N.W.2d at 789 (noting the supreme court’s “strong disapproval of the omission of time from an affidavit in support of a search warrant application” (quotation omitted)).

            Moreover, our conclusion that the application statement is capable of two reasonable interpretations is in accord with several foreign jurisdictions that have interpreted similar application statements,[1] notwithstanding the existence of a distinct split of authority across jurisdictions.[2]  As the Wisconsin Court of Appeals has suggested,

            Although not clearly stated, a reasonable inference arises from the affidavit that the confidential informant had observed a[n attempted] sale within seventy-two hours of the making of the affidavit.


State v. Saldana, No. 96-2886, 1997 WL 615619, at * 3 (Wisc. Ct. App. 1997).[3] 

The broader interpretation of the application, moreover, provided a substantial basis for the district court to conclude that probable cause existed for the search warrant.  The application suggested that the CRI was present in Matter’s home, where Matter presented suspected marijuana for sale, no more than 72 hours before the drafting of the application.  The CRI’s information was corroborated by the agent’s verification of Matter’s address.  Moreover, this recent information was also partially corroborated by the information provided to the Task Force by another CRI in 1998.  Although this information was admittedly stale, it could have had some influence on the district court’s ultimate probable-cause determination.  See Souto, 578 N.W.2d at 750 (noting that one of the factors relating to whether information is stale includes “whether there is any indication of ongoing criminal activity”).  Therefore, we conclude that the issuing district court had a substantial basis to conclude that probable cause existed to search Matter’s home. 

            Because we conclude that the warrant application provided a substantial basis for the issuing district court to conclude that probable cause existed, we need not determine whether a “good-faith” exception to defective warrants exists under the Minnesota Constitution. 




[1] People v. Wachter, 130 Cal. Rptr. 279, 282 (Cal. Dist. Ct. App. 1976) (noting that “the absence of a specific date in the affidavit is not [necessarily] dispositive”); Raymer v. State, 482 N.E.2d 253, 255 (Ind. 1985) (stating that the time-period reference “refers both to the time the informant told the detective the information and to the time the informant observed the narcotics in appellant’s residence”); State v. Loyden, 597 So. 2d 156, 159 (La. Ct. App. 1992); State v. Williams, 270 S.E.2d 604, 606 (N.C. Ct. App. 1980); State v. Cobb, 202 S.E.2d 801, 804 (N.C. Ct. App. 1974) (stating that “[w]hen the affidavit is considered in the light of common sense, the existence of probable cause for issuance of the warrant is clear”); State v. Maguire, 498 A.2d 1028, 1032 (Vt. 1985) (where time-period reference is subject to more than one interpretation, issuing judge did not err as a matter of law by finding probable cause); State v. Partin, 567 P.2d 1136, 1139 (Wash. 1977). 


[2] Nelms v. State, 568 So. 2d 384, 386 (Ala. Crim. App. 1990) (“The words ‘within the last seventy-two hours’ refer to when the informant told th[e] information to the affiant, not to when the informant observed the narcotics * * * .”); Herrington v. State, 697 S.W.2d 899, 901 (Ark. 1985) (where “the omission of any reference to time is so complete that none can be inferred,” the “affidavit is defective and the warrant invalid”); People v. Bauer, 552 P.2d 512, 513 (Colo. 1976) (“[T]he affidavit fails to state, or in any way indicate, when the informant was in the defendant’s apartment and made the observations he related to the officer.”); King v. State, 410 So. 2d 586, 587 (Fla. Dist. Ct. App. 1982) (“The affidavit states only that the police officer met and received his information from his informant within the last six days of the date of the affidavit.  It is silent regarding the date the illegal activity occurred.”); Orr v. State, 382 So. 2d 860, 861 (Fla. Dist. Ct. App. 1980) (“The affidavit states only that the affiant received information from the [CRI] within the past ten days that marijuana was observed inside appellant’s house.”); Commonwealth v. Morton, 526 N.E.2d 1074, 1076 (Mass. App. Ct. 1988) (recognizing “a total absence in the affidavit of any indication concerning the time when the informant made his observations”).

[3] The district court also noted that when a warrant application is ambiguous, and capable of two interpretations, it is not error or an abuse of discretion for the court to choose the broader of the two interpretations in determining whether probable cause existed.  For this proposition, the court cited State v. Bonynge, 450 N.W.2d 331, 335 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). 

In Bonynge, this court held that where there are two plausible, reasonable interpretations of a warrant authorization to seize certain objects, a district “court d[oes] not abuse its discretion in choosing the broader of the two interpretations.”  Bonynge, 450 N.W.2d at 335.  Bonynge, however, addressed a warrant statement that authorized the seizure of certain objects, and the appellant did not argue that probable cause was lacking to support the warrant itself.