This opinion will be unpublished and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
State of Minnesota,
Tammy Colleen Jones,
Le Sueur County District Court
File No. K300119
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas J. Christian, Le Sueur County Attorney, Le Sueur County Courthouse, 88 South Park Avenue, Le Center, MN 56057 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.
Appellant challenges her convictions of controlled-substance crimes, on the ground that the evidence gained through the use of a search warrant should be suppressed because the search warrant was not supported by probable cause. Because the supporting affidavit provided a sufficient basis for the trial court to find probable cause, we affirm.
On February 21, 2000, the Le Sueur County Sheriff’s Department obtained a search warrant for methamphetamine-related materials at Joseph Patnode’s home near New Prague. Investigator Keith Frederick and others discovered several substances containing methamphetamine as well as copious amounts of materials used in producing the drug. The police arrested Patnode and appellant Tammy Colleen Jones, who had rented a room at the home since 1996. Appellant was charged with first-degree controlled-substance crime under Minn. Stat. § 152.021, subds. 2a, 3(b) (1998), conspiracy to commit a first-degree controlled-substance crime under Minn. Stat. §§ 152.021, subds. 2a, 3(b), 609.175, subd. 2(3) (1998), and a third-degree controlled-substance crime under Minn. Stat. § 152.023, subds. 2(1), 3(a) (1998). The first-degree charge was later amended to aiding and abetting first-degree controlled-substance crime under Minn. Stat. § 609.05, subd. 1 (1998).
Appellant was released on bail approximately one week after her arrest, but Patnode remained in custody. On March 22, Patnode’s attorney advised the court during a bail hearing that “unauthorized person [sic] are at the Patnode residence and are suspected to be conducting [more methamphetamine-related activities].” Chief Deputy Thomas Doherty of the Le Sueur County Sheriff’s Department heard the attorney’s comments and relayed them to Investigator Frederick. Investigator Frederick incorporated the attorney’s comments, the results of the prior search, and the fact that appellant had been released from jail while Patnode was still in custody into an affidavit in support of a second search warrant, which the court issued.
The second search of Patnode’s home resulted in the recovery of additional large amounts of methamphetamine-related materials. Appellant, who arrived at the house just after the search had begun, was charged with first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subds. 2a, 3(a), and conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subd. 2a, .096 (1998). The first count was later amended to charge appellant with aiding and abetting controlled-substance crime in the first-degree.
The charges stemming from both searches were consolidated for trial. Appellant moved to suppress the evidence gained as a result of the second search, arguing that the search warrant lacked probable cause because nothing in the supporting affidavit allowed the issuing judge to make an independent determination of the reliability and accuracy of the information. The trial court denied the motion, and the jury found appellant guilty of all charges. The court sentenced appellant on the two aiding-and-abetting convictions, resulting in concurrent sentences of 98 and 122 months. This appeal follows.
D E C I S I O N
We review a district court’s decision to issue a search warrant only to determine whether the court “had a substantial basis for concluding that probable cause existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) (citation omitted). Although the state contends that appellant lacks standing to object to the search, we decline to address this argument because the record is insufficient for us to make a proper determination with respect to appellant’s residency status. See State v. Rhodes, 627 N.W.2d 74, 77 (Minn. 2001) (declining to address several issues due to an incomplete record).
The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution require that all search warrants be supported by probable cause. When determining whether an informant’s tip provides probable cause,
[t]he 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.
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (emphasis added) (quotation omitted). The court should consider the affidavit as a whole rather than examining it piecemeal. Id. Thus, it is not fatal if the affidavit fails to establish the veracity or basis of knowledge of the informant so long as the circumstances otherwise indicate that the information is reliable. Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329 (1983). Statements from citizen-informants, as opposed to criminal-informants, are presumed reliable and, therefore, can supply probable cause. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). Because the law prefers searches conducted pursuant to warrants, we resolve doubtful or marginal cases in favor of the warrant. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
Here, we conclude that the circumstances set out in the affidavit gave rise to a fair probability that a second search would uncover additional criminal evidence. First, the affidavit showed that the second search was part of an ongoing criminal investigation in which Investigator Frederick and others had previously discovered evidence of methamphetamine at Patnode’s home. Second, the affidavit detailed the arrests of appellant and Patnode and appellant’s subsequent release, creating the inference that appellant may have returned to the home and resumed criminal activity. Finally, the affidavit included Patnode’s attorney’s statement that someone other than Patnode was again conducting similar criminal activity at Patnode’s home. This statement reinforced the basis to believe that appellant had returned to Patnode’s home and resumed manufacturing methamphetamine. Although the affidavit did not specifically address the attorney’s veracity and the basis of his knowledge, other circumstances, such as the prior search and the fact that the attorney declared his information in court, indicated that the information was reliable. See Gates, 462 U.S. at 233, 103 S. Ct. at 2329 (holding that the circumstances as a whole can establish an informant’s reliability). Therefore, viewed with a commonsense approach, the affidavit provided the court with a substantial basis for finding probable cause to search Patnode’s home a second time.
Appellant’s challenge to the affidavit fails for two reasons. First, she focuses only on the attorney’s statement and, thus, attacks the affidavit in a piecemeal fashion rather than considering the information as a whole. Wiley, 366 N.W.2d at 268. As a result, appellant disregards the other facts in the affidavit showing the ongoing criminal investigation of Patnode’s home, the successful prior search, and appellant’s opportunity to have resumed methamphetamine manufacturing. Second, appellant presumes the attorney’s statement to be unreliable and puts the onus on the state to prove its reliability. But the law presumes citizen-informant’s tips to be reliable, and thus the burden falls to appellant to prove otherwise. Ward, 580 N.W.2d at 71. Here, the attorney is not only a citizen-informant, but also one declaring his information in a court of law, and appellant offers nothing to rebut his reliability.