This opinion will be unpublished and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
State of Minnesota,
Filed June 29, 2004
Chippewa County District Court
File No. KX-02-589
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Dwayne Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*
The state charged appellant with several counts of ineligible possession of a firearm, controlled-substance crime, and child endangerment. At trial, a jury found appellant guilty of illegally possessing firearms and fifth-degree possession of marijuana. The district court sentenced appellant to the required mandatory minimum sentence for his crimes. Appellant challenges the district court’s failure to suppress the evidence obtained during the search of his property and the district court’s failure to order a downward departure in his sentence. We affirm.
Appellant Jeffrey Lee Stutelberg is a person not eligible to transport, possess, or receive firearms because of a prior gross-misdemeanor conviction. In November 2002, police applied for a warrant to search Stutelberg’s home for firearms, drugs, and drug paraphernalia. The affidavit in support of the search-warrant application included, inter alia, information that: (1) on February 16, 2001, police received information that Stutelberg kept marijuana plants in his basement; (2) on April 6, 2001, a confidential informant (CI) told police that Stutelberg bought drugs from Augeson; (3) on August 13, 2001, Stutelberg was cited for possession of marijuana and drug paraphernalia; (4) on September 8, 2001, a second CI told police that Stutelberg kept a gun, ammunition, and drugs in his house; (5) this CI told police that Stutelberg had drugs buried on his property; (6) on October 11, 2001, Stutelberg was cited for possession of marijuana; (7) on May 24, 2002, police officers looking for Kevin Augeson, an individual wanted on an active felony warrant for possessing controlled substances in the first degree, found Stutelberg’s name on Augeson’s caller i.d.; (8) on May 24, 2002, a third CI told police that he had been at a house to buy methamphetamine, described the approximate location of Stutelberg’s house, and told police that the house was owned by an individual named “Jeff”; (9) on October 31, 2002, a fourth CI told police that on or about October 21, 2002, Stutelberg had purchased stolen guns; (10) the same CI told police that he had smoked marijuana that belonged to Stutelberg, with Stutelberg, at Stutelberg’s house; (11) the CI told police that there were numerous guns inside Stutelberg’s house; (12) the CI told police how to get to Stutelberg’s house and drew a diagram of Stutelberg’s property, including a diagram of the interior of the house; (13) the CI’s diagrams of the property were corroborated by the affiant of the application, who had knowledge of Stutelberg’s property from prior law-enforcement contacts with Stutelberg; (14) the CI told police that Stutelberg had shown the CI a gun that Stutelberg carried on his person; (15) on November 1, 2002, police conducting surveillance of the Stutelberg property reported a person going in and out of the house carrying a handgun and another person carrying a long gun; and (16) on November 1, 2002, police conducting surveillance of the Stutelberg property reported that someone was firing a handgun in the yard of the property.
The district court concluded that the information in the application supported a finding of probable cause and signed the warrant to search Stutelberg’s property. The police executed the warrant; seized firearms, drugs, and drug paraphernalia from Stutelberg’s property; and placed Stutelberg under arrest. The state charged Stutelberg with several crimes. Stutelberg moved the district court to (1) dismiss the charges based on lack of probable cause and (2) suppress the evidence seized during the search of his property. The district court denied appellant’s motions. At trial, Stutelberg was convicted of illegally possessing firearms and of fifth-degree possession of marijuana, and the district court sentenced Stutelberg to the mandatory minimum sentence required under the sentencing guidelines. Stutelberg now appeals both his conviction and sentence.
Stutelberg argues that the district court erred when it concluded that the warrant issued to search his property was supported by probable cause. Stutelberg contends that because the information contained in the application for the warrant was stale and because there was no indication of the informant’s credibility, the district court erred by not suppressing the evidence obtained during the search. We disagree. Upon a finding of probable cause, a neutral and detached magistrate may issue a search warrant. Minn. Stat. § 626.08 (2002); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). Probable cause exists when the totality of the circumstances establishes that “there is a fair probability that . . . evidence of a crime will be found in a particular place.” Harris, 589 N.W.2d at 788 (quoting Illinois v. Gates, 642 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). Information linking the crime to the place to be searched and the freshness of the information are relevant factors for the issuing judge to consider in the probable-cause determination. State v. Hochstein, 623 N.W.2d 617, 622 (Minn. App. 2001).
We review the district court’s determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. Id. at 787-88. 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.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). We afford great deference to the issuing judge’s finding of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).
A. Stutelberg’s Challenge to the Staleness of the Information in the Application
In determining whether information supporting a search warrant is stale, a number of factors may be examined, including, the “age of the person supplying the information, whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable.” State v. DeWald, 463 N.W.2d 741, 746 (1990) (citations omitted). Information is not necessarily stale even after several weeks or months have passed. See, e.g., State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990) (concluding that information three and one-half weeks old was not stale), review denied (Minn. Sept. 28, 1990).
Stutelberg’s staleness challenge fails because even if some of the information in the application for the warrant was stale, there was sufficient recent information included in the affidavit that supported the district court’s probable-cause determination. Only 11 days before the search warrant issued, a CI told police that Stutelberg had bought guns – a violation of the order prohibiting Stutelberg from possessing, transporting, or receiving firearms. The CI also diagrammed Stutelberg’s property, and a police officer familiar with the property corroborated that the diagram depicted Stutelberg’s property. Finally, only one day before the warrant issued, officers conducting surveillance of the Stutelberg property reported that individuals were walking around the property with guns and that one individual was firing a gun. This information supporting the warrant was clearly not stale and was sufficient for the district court to conclude that a fair probability existed that both contraband and evidence of a crime would be found on Stutelberg’s property. Therefore, Stutelberg’s probable-cause challenge based on staleness fails.
Stutelberg’s challenge to probable cause based on the failure of the police to establish in the affidavit the informants’ credibility fails because, after Illinois v. Gates, 642 U.S. 213, 103 S. Ct. 2317 (1983), we no longer apply a strict test under which probable cause will not be found merely because an informant’s credibility is not established. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990) (noting that after Gates, the strict test established by Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S. Ct. 1509, 1513-14 (1964), that “the affidavit had to contain sufficient information establishing that the hearsay informant was credible and that the informant obtained his information in a reliable way,” was abandoned). After Gates, we allow the issuing judge “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.” Gates, 642 U.S. at 238, 103 S. Ct. at 2332 (quotations omitted).
Under the “totality of the circumstances” test, and reviewing the affidavit in its entirety, probable cause existed to search Stutelberg’s house because the affidavit contained: (1) a CI’s statement that Stutelberg bought guns, had guns on the property, and carried a gun on his person; (2) information that the diagrams drawn of Stutelberg’s property by the CI were corroborated by a police officer with knowledge of Stutelberg’s property; and (3) statements by police officers conducting surveillance of the Stutelberg property that reported that individuals were carrying guns and shooting a gun on the property. Because we defer to the issuing judge’s determination of probable cause to issue a warrant, and because under these facts, the issuing judge could have concluded under the totality of the circumstances that there was a fair probability that evidence of a crime would be found on Stutelberg’s property, we affirm the decision of the district court that probable cause existed to search Stutelberg’s property.
Stutelberg argues that the district court abused its discretion when it denied his motion for a downward durational departure of his sentence. “[S]entences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.” Minn. Sent. Guidelines II.D. The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (applying abuse-of-discretion standard in evaluating downward departure), review denied (Minn. Jan. 14, 1991).
Stutelberg contends that the district court abused its discretion when it imposed the mandatory minimum 60-month sentence under Minn. Stat. § 609.11, subd. 5(b) (2002). Stutelberg argues that a downward durational departure is appropriate in his case because his possession of guns was not as serious as other gun-possession cases, he did not resist the officers and indicated where some of the guns could be found, he has Crohn’s disease and the use of marijuana relieves some of the discomfort associated with it, and he is providing a home to relatives. But because the guideline sentences are presumed appropriate and because we only reverse the sentence imposed by the district court when the court abuses its discretion in sentencing, we will not disturb the sentence imposed on Stutelberg by the district court. See Givens, 544 N.W.2d at 776 (applying abuse-of-discretion standard to district court’s decision to depart from the sentencing guidelines). While the district court may not have taken into consideration all the factors Stutelberg now advances in support of his argument that the district court should have downwardly departed, it was not an abuse of discretion for the district court to refuse to depart in this case.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.