This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Daryl Ray New,




Filed March 30, 2004

Crippen, Judge


Ramsey County District Court

File No. K3-02-2541


Stephen V. Grigsby, 50 Whitney Square, 210 North Second Street, Minneapolis, MN 55401 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


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


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction for possession of a controlled substance, arguing that the search-warrant application, which was based primarily on a controlled buy performed by a confidential informant, did not state probable cause, and that the trial court erred in failing to require the state to disclose the identity of the informant.  We affirm.


            After an anonymous complaint was made about crack cocaine sales at an apartment building, an investigating St. Paul police officer noticed many cabs pulling into the building’s parking lot and waiting while the passengers went inside the building for several minutes.  A confidential informant who was sent to make a controlled purchase of narcotics at the residence reported speaking to and purchasing crack cocaine from appellant Daryl New.  The informant provided descriptions of appellant and of a female who was present in the apartment.  A criminal history check revealed that “Daryl New” was an alias for Maurice Kendrick, who had felony convictions for assaults, kidnapping, burglary, and controlled substance crimes.  In a photo lineup, the informant identified a photo labeled Maurice Kendrick as a thinner version of the man who sold the informant the crack cocaine during the controlled purchase.

            In July 2002, within 72 hours after the controlled purchase, the officer applied for and obtained a search warrant for the residence.  Five days later, after the officer called the residence to confirm that “Daryl New” was present, the warrant was executed.  Three people were in the apartment at the time of the search:  appellant, his girlfriend, and his mother.  As the officers entered the apartment, appellant ran toward the bedroom.  Officers searched the bedroom and found approximately 9.5 grams of crack cocaine in a shirt inside a closet that appellant admitted contained his clothes.

            After appellant was charged with second-degree controlled substance crime (possession), he moved to suppress the evidence obtained from the search warrant, arguing that the warrant lacked probable cause, that the information was stale at the time of execution, and that the no-knock execution was the result of Maurice Kendrick’s criminal history, not appellant’s.  Appellant also moved to dismiss the charge for lack of probable cause.  The trial court denied the motions, finding that (1) the officers reasonably believed that appellant and Maurice Kendrick were the same person at the time of the search; (2) the search warrant application established the informant’s credibility; (3) the officer did not need to check the informant’s lower body cavities to verify that the informant did not possess money or drugs prior to the controlled purchase; and (4) the five days that lapsed between the search warrant application and its execution did not make the information stale.

            Appellant later moved for disclosure of the informant’s identity, arguing that the informant, acting as a witness, could provide exculpatory material.  The trial court denied the motion.

            Appellant waived his right to a jury trial and stipulated to facts that were presented to the court pursuant to State v. Lothenbach,296 N.W.2d 854 (Minn. 1980).  The trial court found appellant guilty and sentenced him to 58 months, stayed pending this appeal.


1.  Probable Cause for Warrant

            A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.  U.S. Const. Amend. IV; Minn. Const. art. I, § 10.  Reviewing courts afford great deference to a magistrate’s determination of probable cause.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  Determinations of probable cause to issue search warrants are reviewed to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  A substantial basis to show cause 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) (quotation omitted).

            Appellant claims that the search warrant lacked probable cause because the affidavit did not sufficiently specify the number of times the informant had provided accurate versus inaccurate information.  A proven track record is one of the primary indicia of an informant’s veracity, but specific details of an informant’s record are not typically required.  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999); see State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985) (holding that “has been used over several years successfully” was sufficient, but noting that more specific language is preferred).  Notwithstanding our conclusion that the warrant here was sufficient, appellate precedents admonish that applications should go further in detailing an informant’s history of providing information to law enforcement.

            Appellant also argues that the warrant lacked probable cause because the informant’s lower body cavities were not searched prior to the controlled purchase.  But appellant fails to cite to any authority supporting this argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error in brief not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).[1]  Moreover, “where the affidavit refers to a ‘controlled purchase,’ the magistrate may accept this as a term of art and presume that police searched the informant immediately before and after the alleged drug purchase and conducted surveillance of the purchase to the extent feasible.”  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).

            We conclude that the trial court had a substantial basis to determine that the search warrant application contained probable cause to justify the search.

2.  Disclosure of Informant

Appellant claims that the trial court should have required disclosure of the informant’s identity.  The state has a legitimate interest in protecting the identity of persons who provide information to police, but the interest must give way where the disclosure of the informant’s identity is relevant and helpful to the defense or essential to a fair determination of a cause.  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002) (citing Roviaro v. United States, 353 U.S. 53, 59-61, 77 S. Ct. 623, 627-28 (1957)).

            A defendant has the burden of establishing the need for disclosure of an informant’s identity.  State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982).  Where a defendant fails to meet the burden but can establish a basis for inquiry, the district court should hold an in-camera hearing to interview the informant in person.  Id.  In determining whether disclosure is necessary, a trial court should consider whether (1) the informant is a material witness, (2) the informant’s testimony would be material to the issue of guilt, (3) the state’s evidence is suspect, and (4) the informant’s testimony might disclose entrapment.  Litzau, 650 N.W.2d at 184.

            Appellant claims that the presence of drugs at the residence when the search was executed can be accounted for by the earlier purchase of drugs by the informant, and that appellant was not the person who sold those drugs.  Thus, appellant argues that the informant’s testimony would exculpate appellant.

            Normally, disclosure of an informant is not required where a defendant is not charged with selling narcotics to the informant and where the state did not elicit evidence of the controlled purchase at trial.  State v. Galde, 306 N.W.2d 141, 143 (Minn. 1981).  The prosecution did not use evidence of the controlled purchase to prove appellant’s guilt; the search warrant application was not included in the stipulated facts presented to the trial court.  See Ford, 322 N.W.2d at 614 (where informant was not involved in any of the evidence on which the state relied to establish the defendant’s guilt, defendant did not meet the burden and an in camera hearing is not required).

Appellant distinguishes Galde, where there was no claim that the informant purchased drugs from someone other than the defendant, and cites State v. Syrovatka, 278 N.W.2d 558 (Minn. 1979) as controlling.  But Syrovatka is also distinguishable; that case was remanded for an in-camera hearing because the informant might have witnessed the transaction that led to the charges.  Id. at 562.  The evidence of appellant’s guilt did not include the controlled purchase, and appellant offered no evidence to show that the controlled purchase accounted for the cocaine present when the search occurred.  Moreover, appellant did not meet his burden to show reason to believe that the informant’s identification of Maurice Kendrick was in respect to any person other than appellant Daryl New.

Appellant’s offer of proof fails to show that the informant was a witness to facts relevant to proof of appellant’s offense.  See Litzau, 650 N.W.2d at 184 (disclosure not required where informant merely transmits information and is not material witness to crime).  The trial court properly denied appellant’s motion for disclosure of the informant’s identity.

3.  Delay and Staleness

            Appellant argues that the information contained in the search warrant application was stale when the warrant was executed five days after its authorization.  But search warrants are not void by statute unless they have not been executed after 10 days have passed since their authorization.  Minn. Stat. § 626.15(a) (2000).  In addition, the delay was not unconstitutional because the warrant established continuing drug sales, and probable cause continued to exist to the date the warrant was executed.  See State v. Yaritz, 287 N.W.2d 13, 16-17 (Minn. 1979).  We conclude that the information in the warrant was not stale when the search was executed.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Other jurisdictions have not required strip searches for controlled purchases, holding that pat-down searches are sufficient.  See, e.g., McCall v. State, 684 So.2d 260, 262 (Fla. Ct. App. 1996); State v. Johnson, 665 So.2d 1237, 1248 (La. Ct. App. 1995); United States v. Harper, 802 F.2d 115, 120 (5th Cir. 1986); Hudson v. State, 462 N.E.2d 1077, 1083 (Ind. Ct. App. 1984).