This opinion will be unpublished and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

A03-1267

 

 

State of Minnesota,

Appellant,

 

vs.

 

Thomas Leo Meyers,

Respondent.

 

 

Filed March 2, 2004

Affirmed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. K9023450

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Vance B. Grannis III, Amy A. Schaffer, Assistant County Attorneys, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

 

Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101; and

 

William S. Sherry, Sherry Law Office, 4855 Dominica Way, Apple Valley, MN 55124 (for respondent)

 

 

Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

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

ROBERT H. SCHUMACHER, Judge

Appellant State of Minnesota challenges the district court's pretrial order determining the search warrant lacked probable cause, suppressing evidence seized in execution of the search warrant, and dismissing drug, theft, and weapons-possession charges. We affirm.

FACTS

On October 2, 2002, Agent Rebecca Sherman of the Dakota County Drug Task Force applied for and received a warrant to search the residence of respondent Thomas Leo Meyers at 22690 Blaine Avenue, Castle Rock Township. The October 2 warrant was not executed. Twelve days later, on October 14, Sherman applied for a second warrant to search the same residence. Both affidavits read, in part, as follows:

In December 2001, I received information from a Confidential Informant, hereafter referred to as CI#1 . . . . CI#1 reported that a person known as Tom Meyers is selling "crank" from his farmhouse on Blaine Avenue in Dakota County. CI#1 stated that Tom Meyers had used the farm as a place to cook meth in the past. Currently, CI#1 told me that Tom Meyers sells between two to six ounces of methamphetamine per week. Along with meth, CI#1 stated that Meyers sometimes sells cocaine.

 

. . . .

 

In July 2002, I received information from a Confidential Reliable Informant, hereafter referred to as CRI. . . . CRI reported that a person known as Tom Meyers lives on a farm off of Blaine Avenue, south of Hwy 50 in Dakota County. CRI stated that he/she has personal knowledge that Tom Meyers has most of the components for the manufacturing of methamphetamine at his house. CRI told me that Meyers has approximately four pounds of red phosphorus, three pounds of crystal iodine, and Red Devil lye. Meyers was also trying to recruit someone to get ephedrine pills for him. . . . According to the CRI, Meyers has specifically stated that he cooks meth. CRI stated that Meyers and a person known as "Lumpy" distribute the meth after it is cooked. . . .

 

. . . .

 

CRI also stated that Meyers has firearms, which are kept in a brown safe or locker inside the house. CRI stated that the firearms consist of handguns with scopes, rifles, and shotguns.

 

. . . .

 

In July 2002, I received information from Dakota County Deputy Dan Michener. . . . According to Deputy Michener, [citizen sources] told him that Meyers is "very into meth again." Citizens also told Deputy Michener that Meyers hangs out with a woman named Kim Kortsch, who is also known as a meth user. Deputy Michener informed me that during the month of June 2002, he had driven up to Tom Meyers' residence. At that time, he had contact with a female who falsely identified herself as Jodi Friedges. Deputy Michener stated that he later identified the female as Kimberly Ann Kortsch . . . . Kimberly Kortsch is known to your affiant as an individual who is involved in the use, manufacture, and distribution of methamphetamine.

 

In August 2002, I received information from a Confidential Informant, hereafter referred to as CI#2. . . . CI#2 reported that a person known as Tommy Meyers is a meth dealer and "has the perfect place to cook meth." . . . According to CI#2, he/she has personal knowledge that a third party purchased "glass" from inside Meyers' shop/house within the past few months.

 

In September 2002, I spoke to three Concerned Citizens, hereinafter referred to as CC. . . . CC informed me that an individual known to them as Tom Meyers is potentially involved in some kind of drug activity. CC told me that Meyers has a great deal of short-term vehicle traffic in and out of his residence, including several vehicles that appear to be out of place in a rural setting. CC stated that along with vehicle traffic, Meyers is known to drive a dirt-bike to the end of his driveway and plant himself there, watching for cars that drive along Blaine Avenue. CC told me they were aware of some kind of police raid that occurred at Meyers' residence in 2001, and that things had briefly quieted down afterwards. CC all agreed that there had been a noticeable increase in activity at Meyers' house this summer. CC are unaware of any permanent or consistent employment that Meyers has to support himself. Meyers is also known to have one or more rottweilers at the residence.

 

CC have had the opportunity to see Thomas Meyers up close; CC stated that Meyers has the appearance of someone who is under the influence of drugs. He appears to be dirty and "spaced out."

 

CC informed me that Meyers has firearms, which he shoots frequently at his residence. . . . CC have heard Meyers shooting the guns within the past few weeks.

 

The October 14 affidavit also included the following statements:

During the ten days following the authorization of the [October 2] Search Warrant, the Agents and Deputies involved in this investigation have encountered several obstacles that prohibited the execution of the warrant, and thus led to the expiration of the warrant. Inclement weather conditions prevented Agents and Deputies from surveilling the property . . . . The same weather conditions also prevented Agents and Deputies from obtaining necessary aerial photographs of the property . . . . Surveillance, recon, and aerial photography of the property were essential to the proper and safe execution of this warrant, and all were prevented due to extreme weather conditions.

 

As of October 14, 2002, your affiant has continued to receive information from the CI's, the CRI, and CC's regarding this property, persons, and vehicles listed in this document. The information remains consistent with the information previously contained in this document.

 

The second warrant was issued on October 14 and executed on October 22. During the search, police seized stolen motorcycles, weapons, drugs, and drug related paraphernalia including syringes, pipes, and vials.

On October 24, Meyers was charged with one count of fifth-degree controlled substance crime in violation of Minn. Stat.  152.025, subd. 2(1) (2002), one count possession of a small amount of marijuana, in violation of Minn. Stat.  152.027, subd. 4(a) (2002), one count of possession of drug paraphernalia in violation of Minn. Stat.  152.092 (2002), one count of receiving stolen property in violation of Minn. Stat.  609.53 (2002), and one count of theft in violation of Minn. Stat.  609.52, subd. 2(1) (2002). On September 2, the district court granted Meyers's motion to suppress the evidence obtained through the search warrant dated October 14, 2002. The district court concluded the warrant application was in effect an effort to improperly extend the first warrant in violation of Minn. Stat.  626.15 without providing the necessary information to allow the issuing judge to independently determine whether probable cause continued to exist. The district court dismissed all charges against Meyers.

D E C I S I O N

In an appeal by the state of a pretrial suppression order, it "must 'clearly and unequivocally' show both that the trial court's order will have a 'critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). Critical impact has been shown in those cases where the lack of the suppressed evidence completely destroys the state's case. State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). Here, suppression of the evidence resulted in the dismissal of all charges. The parties agree the critical impact requirement has been met.

The United States and Minnesota constitutions protect a person from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, 10. Generally, a search is valid only if conducted pursuant to a valid warrant. State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991). A search warrant must be supported by probable cause and be issued by a neutral and detached magistrate. Minn. Stat. 626.08 (2002); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). A search warrant must be executed and returned to the court which issued it within ten days after its date and after the expiration of the ten-day period the warrant is void unless previously executed. Minn. Stat.  626.15 (2002). "[E]vidence recovered during an unlawful search may not be introduced at trial." State v. Martinez, 579 N.W.2d 144, 148 (Minn. App. 1998), review denied (Minn. July 16, 1998).

The appellate 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) (citing State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998)). 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. Id. The determination is limited to the information contained in the affidavit offered in support of the warrant application. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).

The supporting affidavit is required to provide the issuing judge with sufficient factual information such that the judge can make an independent determination on the issue of probable cause. State v. Doyle, 336 N.W.2d 247, 249-50 (Minn. 1983). Here, a search warrant request with supporting affidavit was submitted and warrant granted on October 2, 2002. This warrant was not executed. Twelve days later, on October 14, a second warrant request was submitted with an almost identical supporting affidavit and a second warrant granted. The affidavit supporting the October 14 application included the following statement:

As of October 14, 2002, your affiant has continued to receive information from the CI's, the CRI, and CC's regarding this property, persons, and vehicles listed in this document. The information remains consistent with the information previously contained in this document.

 

The state argues this statement provided timely information allowing the issuing judge to independently determine probable cause as of October 14. We disagree. This statement is conclusory and does not allow a judge to make an independent determination on the issue of probable cause. See Souto, 578 N.W.2d at 749 (officer's statements did not provide any details of information received that would permit issuing judge to independently evaluate his conclusions).

A stale factual basis may also invalidate a search warrant. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). Proof "must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time." Id. at 193 (quoting Spro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932). In determining whether information supporting a search warrant is stale, we consider whether there is any indication of ongoing criminal activity, the items sought are incriminating, the property is easily disposed of, and the items sought are of enduring utility. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). Information supporting probable cause for a search warrant "has been held not stale even after the passage of several months where the items sought are of enduring utility to their taker." Id. (quotation omitted). Nevertheless, "even in cases of an ongoing enterprise, evidence of more than generally suspicious activities is necessary to show continuation of the activity." Souto, 578 N.W.2d at 750.

Here, Sherman learned the following from informants between 2 and 11 months before the search warrant application: Meyers' "is selling 'crank' from his farmhouse"; he "had used the farm as a place to cook meth in the past"; he has most of the "components" for making meth, including red phosphorus, three pounds of crystal iodine, and Red Devil lye, at his residence; he was trying to recruit someone to get ephedrine pills for him; he had stated that he "cooks meth"; he "has the perfect place to cook meth"; and a third person known to an informant purchased "glass" inside the residence of Meyers "within the past few months." In the month prior to the search warrant application, concerned citizens reported suspicious activity at the residence including significant short term vehicle activity and the shooting of firearms. Concerned citizens also reported that Meyers did not appear to be employed, drove to the end of the driveway to watch traffic on Blaine Avenue, and looked dirty and "spaced out."

We recognize the equipment used to manufacture methamphetamine may not be easily disposed of and may have enduring utility for ongoing and continuous methamphetamine manufacture. But ingredients for manufacturing methamphetamine, unlike equipment, are easily disposed of. The information included in the search warrant application concerned the possession of ingredients, and at least one drug sale, occurring at Meyers's residence between 2 and 11 months prior to the search warrant application. Although the information reported by concerned citizens was more timely, we find this alone is not sufficient to show continuing criminal activity. At best, the information contained in the search warrant application established only a general suspicion of ongoing criminal activity at Meyers's residence. This is not sufficient to support a finding of probable cause to search.

We, therefore, conclude the information contained in the search warrant application did not support a finding of probable cause to search Meyers's residence. The state has not shown the omnibus court clearly and unequivocally erred in granting Meyers's motion to suppress the evidence obtained under the October 14 search warrant.

Affirmed.