This opinion will be unpublished and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,
Matthew James Wrobleski,
Renville County District Court
File No. K700555
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David J. Torgelson, Renville County Attorney, PO Box D, Olivia, MN 56277 (for respondent)
John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, 1042 Minnesota Building, St. Paul, MN 55105 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
Appellant challenges the district court’s denial of his motion to suppress evidence seized during the execution of a search warrant. Appellant argues that the factual allegations in the police affidavit supporting the warrant application were based on unreliable statements and illegally obtained evidence and were insufficient to support the issuing court’s probable cause determination. Because we conclude that the search warrant was supported by probable cause, we affirm.
Between June 25, 2000, and August 2, 2000, appellant Matthew James Wrobleski went on a crime spree in central Minnesota, stealing four cars, nearly $20,000 in cash, and other items. On August 3, 2000, police arrived at a farm in Franklin, Minnesota, to execute several warrants for appellant’s arrest.
Appellant was not at the farm, but the police encountered Jacob Severson and appellant’s cousin. Severson, the primary renter of the property, told the police that appellant rented a bedroom in the farmhouse and had use of the outbuildings. The police asked Severson for consent to search the farmhouse and the outbuildings, but Severson initially refused. The police then observed, through the open door of a garage, an automobile that they believed to be stolen. The police confirmed that the automobile was stolen and arrested Severson for possessing stolen property.
The police again requested consent to search the farmhouse and the outbuildings, and Severson again refused. After speaking with appellant’s cousin, who encouraged him to consent, Severson consented to a search of the farm, the farmhouse, and the outbuildings. In the course of securing the farmhouse prior to the search, police observed, in appellant’s room, appellant’s driver’s license, cash, and coins similar to coins recently reported stolen from a store in Montevideo, Minnesota. The police did not then search appellant’s room.
Shortly thereafter, the police learned that appellant had been arrested in another county and contacted appellant to request consent to search his room in the farmhouse. Appellant refused. The police submitted a search warrant application accompanied by an affidavit stating that (1) based on Severson’s consent, they had secured and searched the farmhouse, excluding appellant’s room, as well as the farm grounds and outbuildings; (2) during the consent search, they observed a stolen vehicle and a pickup truck identified by one of the officers present as the same truck used two weeks earlier in a burglary in Redwood Falls; (3) appellant was the prime suspect in the Redwood Falls burglary; (4) they had discovered tools, paint, painting equipment, and automobile parts similar to those stolen in the Redwood Falls burglary; and (5) Severson told them that appellant had brought the items onto the farm site.
The court issued a warrant to search appellant’s room. Based on evidence collected at the farm site and in appellant’s room, the police arrested appellant and charged him with receiving stolen property in violation of Minn. Stat. §§ 609.53, subd. 1, .52, subd. 3(2) (1998).
At a contested omnibus hearing, appellant moved to suppress the evidence found in his room and dismiss the charges, contending that the warrant was not supported by probable cause. The district court denied appellant’s motion. Appellant waived his right to a jury trial and the case was tried to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty as charged and sentenced him to 26 months, executed. This appeal follows.
In reviewing pretrial orders on motions to suppress evidence, “we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing * * * the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).
A search warrant may be issued upon probable cause and supported by affidavit. Minn. Stat. § 626.08 (1998). The affidavit must set forth the facts tending to establish the grounds of the application or probable cause for believing the facts exist. Minn. Stat. § 626.10 (1998). Probable cause exists if “certain identifiable objects are probably connected with certain criminal activity and may probably be found at the present time.” State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984) (citations omitted), review denied (Minn. Jan. 14, 1985).
This court affords “great deference” to the issuing court’s determination that a search warrant is supported by probable cause. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999) (quoting State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998)). Our review is therefore limited to ensuring that the court had a substantial basis for concluding that probable cause existed. Id. at 788. “The 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) (quotation omitted).
Appellant argues that Severson’s consent to search the property was involuntary and that evidence observed during the consent search cannot legally form the basis of a determination that probable cause existed to obtain a warrant. We do not agree.
Appellant did not raise this argument before the district court, and has, therefore, waived it. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (holding court usually will not address issues raised for the first time on appeal).
Even if we were to exercise our discretionary authority to consider a constitutional issue raised for the first time on appeal, see McGuire v. C & L Restaurant Inc., 346 N.W.2d 605, 610 (Minn. 1984), appellant’s argument challenging Severson’s consent is without merit.
First, appellant lacks standing to challenge the search of premises under Severson’s control conducted pursuant to Severson’s consent. “Fourth Amendment rights are personal rights which * * * may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966 (1969); see also State v. Bruno, 293 Minn. 84, 93, 196 N.W.2d 459, 465 (1972).
A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.
See Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425 (1978). Appellant does not contend that his own Fourth Amendment rights were violated, that Severson lacked actual or apparent authority to consent to the search, see Illinois v. Rodriguez, 497 U.S. 177, 186-87, 110 S. Ct. 2793, 2800-01 (1990), or that he had a legitimate expectation of privacy in the areas searched. Appellant’s Fourth Amendment rights were not implicated by Severson’s consent.
Second, the record is clear that Severson’s consent was voluntary. Consent is voluntary when it is uncoerced. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)). Whether consent was voluntary is a question of fact determined by examining the totality of the circumstances. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (citing Schneckloth, 412 U.S. at 249, 93 S. Ct. at 2059). Appellant argues that because Severson was in custody when he consented, his consent was not voluntary. But “[t]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828 (1976). Appellant also argues that there was no significant intervening event between the arrest and the consent. But between the arrest and the consent, Severson spoke with appellant’s cousin, who persuaded Severson to consent. Appellant also argues that Severson’s initial refusal to consent to a search demonstrates that his subsequent consent was involuntary. He cites no authority for this proposition.
Appellant further argues that Severson is an accomplice whose statements are inherently untrustworthy. Appellant did not raise this issue, which is without support in the record, before the district court. He has, therefore, waived it.
Appellant also argues that Severson’s statements implicating him were self-serving and lacked credibility. There was evidence independent of Severson’s statements to support the police’s belief that certain items observed pursuant to the consent search were connected with certain criminal activity. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (an informant’s credibility can be established by sufficient police corroboration of informant’s information). Appellant contends that the affidavit provided insufficient evidence that a crime had been committed or that evidence of any crime would be found in appellant’s bedroom. But the police observed vehicles on the property that had been reported as stolen or had been used in burglaries in which appellant was the prime suspect.
Appellant further contends that the warrant application was fatally flawed because the issuing court failed to independently review the affiant’s statement that appellant was the prime suspect in a burglary then under investigation. But probable cause need not be proved to the same degree as guilt: it is “the probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.” United States v. Sumpter, 669 F.2d 1215, 1218 (8th Cir. 1982) (quotation and citation omitted). It is sufficient that the affidavit contain a “[r]ecital of some of the underlying circumstances in the affidavit.” United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965). The court did not err by crediting the police statement that appellant was a prime suspect in the prior crime.
We conclude that that the district court correctly denied appellant’s motion to suppress evidence because the affidavit submitted in support of the application for the search warrant provided a substantial basis for the issuing court’s probable-cause determination.