This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-1080

 

 

State of Minnesota,

Respondent,

 

vs.

 

Justin Bye, Sr.,

Appellant.

 

 

Filed May 6, 2003

Affirmed in part, reversed in part, and remanded

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. K5012479

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Justin Bye, Sr. challenges his conviction for possession of a firearm by an ineligible person. We affirm the district court's issuance of the search warrant because the affidavit establishes that the district court had a substantial basis to make a probable-cause finding. We further conclude that the state was not obligated to prove that Bye knew of his ineligibility to possess a firearm. Finally, we reverse Bye's sentence and remand to the district court for resentencing. The district court failed to inform Bye that he had a right of allocution before a sentence was imposed.

FACTS

St. Paul Police Officer Steven Bystrom received a tip from a concerned citizen and a confidential informant that Bye was selling drugs at 793 Duluth Street in St. Paul. Bystrom received information from the confidential informant that several firearms were hidden in a utility shed behind the house and that Bye usually carries guns with him while conducting his narcotics activities. The confidential informant showed Bystrom a picture of the firearms and claimed that he/she had also seen drugs hidden in cars parked at the house. The confidential informant also notified Bystrom that there was a police scanner inside the house and several surveillance cameras outside.

As a result of these tips, Bystrom put the house under surveillance and observed "many people come and go with short stays" and "activity conducive to drug sales." Bystrom also had a confidential informant enter the house to attempt to buy drugs, but the confidential informant told Bystrom that Bye said to come back later because he was out of methamphetamine.

Based on the above facts, on July 11, 2001, Bystrom obtained and executed a search warrant at 793 Duluth Street. During the search, police found marijuana, drug paraphernalia, cash, surveillance cameras, a police scanner, and a model 597 Remington .22 caliber rifle. The rifle was standing near a closet in Bye's upstairs bedroom. Bye told the officers that he had purchased the rifle from a friend and that it was for his brother who is a hunter.

Because he has a 1996 conviction for burglary in the fourth degree, a "crime of violence" under Minn. Stat. 624.712, subd. 5 (2000), Bye was charged with possession of a firearm by an ineligible person. After his fourth-degree burglary conviction, Bye was not told that he was prohibited from possessing a firearm. Bye moved to suppress the rifle, claiming that the search warrant was not supported by probable cause. The district court denied the motion.

Bye submitted his case on these stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Bye guilty and sentenced him to 60 months executed.

D E C I S I O N

1. The United States and the Minnesota constitutions provide that warrants must be supported by probable cause. U.S. Const. Amend. IV; Minn. Const. art. I, 10. In determining whether probable cause exists to support the issuance of a warrant, though, we do not review the district court's decision de novo. Instead, we afford "great deference" to the judge's finding "to ensure that the issuing judge had a 'substantial basis' for concluding that probable cause existed." State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citation omitted). Our review is limited to the information presented in the affidavit; we do not examine all the information that the police actually possessed. Id.

When determining whether the district court had a substantial basis for finding probable cause to search 793 Duluth Street, we look to the "totality of the circumstances" test promulgated by the United States Supreme Court:

The 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.

 

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). Indicia that bear on the probability that evidence of a crime will be found include information connecting the crime to the location searched, the freshness of the information, and the reliability of the source of the information. Id. at 230, 103 S. Ct. at 2328; 2 Wayne R. LaFave, Search and Seizure, 3.7(d) (3d. ed. 1996) at 372.

The evidence in the affidavit submitted by Officer Bystrom to establish probable cause is summarized as follows: (1) a concerned citizen complained to St. Paul police that drug dealing was occurring at 793 Duluth Street; (2) a confidential informant told Bystrom that drug dealing occurred at this location and that firearms were hidden in a false floor in a utility shed in back of the house; (3) the confidential informant showed Bystrom a photograph of the firearms; (4) the confidential informant said that he/she had seen drugs hidden in cars parked in the rear of this address; (5) Bystrom noted that Bye had a criminal history; (6) while on surveillance, Bystrom saw many people come and go after short stays, and he saw activity conducive to drug sales; (7) a confidential informant attempted a drug purchase at the location, and Bye told the confidential informant that he was out of methamphetamine; (8) the confidential informant told Bystrom that he/she saw surveillance cameras hidden in trees surrounding the address and that there is a police scanner in use at this address; and (9) it is Bystrom's experience that many drug traffickers, when arrested, are in possession of police scanners that they use "to enhance their ability to escape detection of their drug dealing activities by law enforcement personnel."

Bye first asserts that the Bystrom's affidavit is inadequate because it lacks information regarding the veracity of the concerned citizen or the confidential informant. Because the issuing judge would be unable to determine the reliability of the information provided by the informants by looking at the affidavit, Bye argues, the affidavit lacked support for a probable-cause finding.

But under the "totality of the circumstances" test, we do not look rigidly at each part of the affidavit in isolation but view them all together. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). Although it would have been preferable had the affidavit included additional information about the concerned citizen, the concerned citizen's personal observations are sufficient to accept the information as reliable. The concerned citizen's tip that he/she had seen drug dealing and selling at this location was based on personal observation; the affidavit stated that the concerned citizen "has seen drug activity, (sales/use)." Personal observations of criminal conduct are the traditionally preferred method for an informant's knowledge. State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985). Further, the concerned citizen's tip regarding drug dealing at this location was corroborated by Bystrom's surveillance observations that there were many people coming and going for brief visits and that he saw other activity suggestive of drug activity. See id. at 269 (holding that police corroboration of an informant's statement gave credence to the informant's tip).

The affidavit next relies on a confidential informant's tip that Bye had drugs and firearms at the residence. Bye maintains that the affidavit lacked information regarding the source of the confidential informant's knowledge, that is, whether the confidential informant personally observed such activities or whether the confidential informant gained the information from others. The affidavit also does not describe the confidential informant's veracity or whether he/she has previously given reliable information to the police.

But again, independent corroboration of the confidential informant's information justified the judge's issuance of a search warrant. Police may corroborate part of an informer's tip as truthful by obtaining similar information relating to that activity from another informant. See State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978) (stating that "the fact that police can corroborate part of an informer's tip as truthful may suggest that the entire tip is reliable."). Because the concerned citizen's information corroborates the confidential informant's tip, and vice versa, both tips regarding drug dealing were sufficiently supported in the affidavit. Further, Bystrom's surveillance observations corroborated the confidential informant's tip that drug activity was occurring.

Finally, although no sale was consummated, the attempted purchase of narcotics from Bye should weigh in favor of a probable-cause finding. The fact that Bye allegedly confirmed that he would sell drugs to the confidential informant at a future date, combined with Bystrom's observations regarding the frequent visits of short duration at the house, lends credence to the confidential informant's tips. Moreover, Bystrom's discovery that Bye had a criminal history provides at least some corroboration to the judge in determining whether all the circumstances justified a finding of probable cause. McCloskey, 453 N.W.2d at 704 (citing U.S. v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2081 (1971)).

Because the district court is not required to look at each component separately but rather to judge the elements found in the affidavit together to see if probable cause exists, we hold the district court had a substantial basis to issue this warrant. See Wiley, 366 N.W.2d at 268. (holding that close cases should be determined by the preference accorded to warrants).

Bye also claims that Bystrom's affidavit fails to provide any information from which the reviewing judge could determine the freshness of the information provided by the concerned citizen or the confidential informant. The finding of probable cause to issue a search warrant may not be based on stale information. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984).

[the] 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.

 

Id. (quoting Sgro v. U.S., 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)). Factors having an impact on a staleness assertion include whether there are any indications of ongoing criminal activity, whether the articles sought are incriminating or innocuous, whether the property sought can be disposed of or transferred quickly, and whether the property sought would have enduring utility. Souto, 578 N.W.2d at 750.

The affidavit does not address when the various tips from the concerned citizen or the confidential informant were received or when the informants made their alleged observations. But the absence of time in an affidavit, although disapproved of, is not fatal per se to a finding of probable cause if the totality of the circumstances still supports such a finding. State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999).

The use of the present tense in the affidavit is part of the overall circumstances that makes it reasonable to infer that the illegal activities were presently occurring (e.g., "drug dealing is taking place," "firearms are hidden"). Professor LaFave recognizes that such use of the present tense can establish that the facts are sufficiently timely. LaFave, supra, at pp. 360-61.

Keeping in mind that we should give the district court's probable cause determination "great deference," we hold that the affidavit's use of the present tense indicates that the illicit activities were occurring presently. See State v. Rochefort, 631 N.W.2d 802, 804-5 (Minn. 2001) (reiterating "deferential, substantial basis standard" for appellate review of warrant searches). The district court's issuance of this warrant was not improper.

2. The second issue that Bye raises on appeal is whether the state was required to prove, as part of his conviction, that Bye either knew or should have known that he was ineligible to possess a firearm. Bye maintains that his conviction was improper because he was not given notice that his gross-misdemeanor conviction of fourth-degree burglary prohibited him from possessing a firearm. The district court held that Bye was not required to have notice of his disqualification because the legal axiom ignorantia juris non excusat ("ignorance of the law is no excuse") is apposite.

The statute at issue criminalizes possession of a firearm by certain ineligible persons that have been convicted of a "crime of violence" in the previous ten years. Minn. Stat. 624.713, subd. 1(b) (2000). For purposes of this statute, fourth-degree burglary is a "crime of violence." Minn. Stat. 624.712, subd. 5 (2000). Section 624.713 did not expressly require the district court to notify Bye that his conviction disqualified him from possessing a firearm. Minn. Stat. 624.713, subd. 3(a) (requiring only that notice be given when defendant is ineligible to possess pistols and semiautomatic assault weapons and specifically providing that failure to give notice has no consequences). Thus, under a plain reading of the applicable statutes, Bye, having been convicted of fourth-degree burglary in 1996, was not eligible to possess the rifle that police discovered and the court was not required to give him notice of his ineligibility.

Bye, however, argues that in certain circumstances due process requires that a defendant be given notice before the imposition of criminal sanctions. In Lambert v. California, 355 U.S. 225, 78 S. Ct. 240 (1957), the Supreme Court examined a Los Angeles municipal code that required certain felons to register with the city. Id. at 226, 78 S. Ct. at 242. The court held that actual knowledge of the duty to register was necessary before the defendant could constitutionally be punished. Id. at 229, 78 S. Ct. at 243. The court maintained that because the code attempted to criminalize behavior that ordinarily "would not be blameworthy in the average member of the community," a conviction without notice would violate due process. Id. at 229-30, 78 S. Ct. at 243-44.

The Eighth Circuit recently recognized that Lambert carved out an exception to the general rule that ignorance of the law is no excuse. U.S. v. Hutzell, 217 F.3d 966, 968 (8th Cir. 2000). At issue in Hutzell was a federal statute making it unlawful for anyone convicted of a misdemeanor crime of domestic violence to possess a firearm. Id. at 967. Hutzell claimed that because he lacked knowledge of this statute and because there is nothing inherently unlawful about possessing a firearm, he could not be punished without violating the Due Process Clause. Id. at 967-68.

The Eighth Circuit disagreed, noting that the limited exception described in Lambert does not apply if Hutzell's "lack of awareness of the prohibition was objectively unreasonable." Id. At 968. The court held that the defendant's conviction of a domestic-violence crime should have put him on notice that his subsequent possession of a gun might be regulated. Id. Moreover, because of the widespread concern related to domestic violence, the court held "that it is simply disingenuous for Mr. Hutzell to claim that his conviction * * * involved the kind of unfair surprise that the fifth amendment prohibits." Id. at 969.

Like Hutzell, the fact that Bye's fourth-degree burglary conviction is a crime that triggered the prohibition on firearm possession is not an "unfair surprise." Minn. Stat.  624.712, subd. 5, clearly defines fourth-degree burglary as a "crime of violence." In addition, the Lambert exception to the general rule that ignorance of the law is no excuse is not applicable if the defendant's unawareness was objectively unreasonable. Id. at 968. We find that Bye's presumption that his conviction for fourth-degree burglary was not a crime of violence is "objectively unreasonable." Bye's assertion that due process requires that he have notice of the statutory prohibition on possession of a firearm is much weaker than the defendant in Lambert who was expected to realize that she had to register with the city after being convicted of a felony. Lambert, 355 U.S. at 226, 78 S. Ct. at 242.

We must give effect to the plain language of the statute. The state was not required to prove that Bye knew that he was ineligible to possess the firearm. The state merely had to show that (1) Bye knowingly possessed a firearm; (2) Bye has been convicted or adjudicated delinquent or convicted as an extended-jurisdiction juvenile in this state or elsewhere for committing a crime of violence, unless 10 years have elapsed since Bye was restored to civil rights or the sentence has expired; and (3) Bye's act took place on or about a particular date in Ramsey County. 10A Minnesota Practice, CRIMJIG 32.21 (1999).

The state proved each of the above elements beyond a reasonable doubt. The "knowing" requirement was fulfilled when the police discovered the firearm in Bye's bedroom and he admitted that he had purchased it to give to his brother. The state provided sufficient proof of the second element by establishing that Bye's fourth-degree burglary conviction was a crime of violence. Finally, Bye's act took place in Ramsey County on July 11, 2001. Because there was sufficient evidence to convict Bye and there is no justification for extending the rationale of Lambert to this case, we affirm the conviction.

3. Bye also argues that remand is appropriate because the district court failed to afford him a chance to address the court before sentencing. Before the court pronounces sentence, it must allow the prosecutor and defense attorney an opportunity to make statements relevant to the sentence. Minn. R. Crim. P. 27.03, subd. 3. The court must separately offer the defendant an opportunity for allocution. "The court shall also address the defendant personally and ask if the defendant wishes to make a statement in the defendant's own behalf and to present any information before sentence * * *." Id.

The state acknowledges that remand is proper because the district court did not advise Bye of his right of allocution. We therefore remand for exercise of this right and for resentencing. See State v. Young, 610 N.W.2d 361, 363 (Minn. App. 2000) (holding that "the rule is clear. A defendant has a right to allocution before the court imposes sentence."), review denied (Minn. Apr. 25, 2000).

Affirmed in part, reversed in part, and remanded.