This opinion will be unpublished and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,
Scott Alan Fettig,
Filed September 21, 2004
Pope County District Court
File No. K0-02-317
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Belvin Doebbert, Pope County Attorney, 110 – 17th Avenue Northwest, P.O. Box 288, Glenwood, MN 56334 (for respondent)
Eric L. Newmark, Birrell & Newmark, Ltd., Suite 500, 510 First Avenue North, Minneapolis, MN 55403 (for appellant)
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of conspiracy to commit a first-degree controlled substance crime, Scott Fettig raises two challenges to the warrant issued for the search of his residence: first, that the affidavit in support of the warrant is insufficient to establish probable cause; and, second, material omissions in the affidavit defeat probable cause. Because the warrant application provided probable cause and the omissions did not undermine the existence of probable cause, we affirm.
Scott Fettig was charged in August 2002 with first-degree conspiracy to commit controlled-substance crime and first-degree aiding and abetting a felony controlled-substance crime. The charges were based on evidence of methamphetamine and materials and implements used in the manufacture of methamphetamine that were seized in an August 18, 2002 search of Fettig’s residence. Fettig waived his right to a jury trial and submitted the case on stipulated facts. The state dismissed the aiding-and-abetting charge, and the district court found Fettig guilty of the conspiracy charge.
The search warrant for Fettig’s residence was based on information obtained from two informants. The first informant was arrested by Pope County law enforcement for a traffic violation on August 16, 2002. The arresting officer found methamphetamine and associated paraphernalia in her car. In a taped interview the day after the arrest, she provided the officer with information about methamphetamine manufacture at Fettig’s residence. She specifically stated that she had transported quantities of methamphetamine from that residence to western North Dakota for the purposes of sale and distribution.
The second informant was also involved in a traffic offense; a state trooper stopped her on suspicion of impaired driving. In an inventory search of the car, police discovered methamphetamine and other controlled substances. In response to the trooper’s questions about the source of the methamphetamine, the second informant stated that Fettig’s residence was “dirty.”
The search warrant affiant was a Pope County deputy sheriff. The deputy stated that he had personally observed Fettig, whom he recognized, in the yard of the residence for which the search warrant was sought.
At the omnibus hearing Fettig moved to suppress the evidence obtained during the search, contending that it was insufficient to establish probable cause and that the affidavit contained material omissions which were intended to mislead the signing judge. The district court denied the motion. Fettig then moved the court to reopen the omnibus hearing following the discovery that the second informant’s use of the word “dirty” was not included in the transcript of her taped interview or in the trooper’s report. The district court denied the motion to reopen the omnibus proceedings, noting that the trooper would testify at a reopened hearing about the second informant’s statement and that these hearsay statements could be used to support probable cause.
Fettig appeals from the district court’s judgment, arguing that the denial of his motion to suppress evidence was error because (1) the search warrant was not based on probable cause and (2) omissions in the search warrant defeated probable cause.
D E C I S I O N
A warrant application must establish probable cause for the issuing court to believe that a crime has been committed and that evidence of the crime will be found at the place to be searched. State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999). When reviewing a finding of probable cause, we determine whether the affidavit offered in support of the warrant, viewed as a whole, provides a substantial basis for that finding. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). We accord significant deference to the issuing judge’s determination of probable cause, Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983), and will not invalidate a warrant by construing an affidavit in a hypertechnical rather than common-sense fashion, United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965).
Fettig’s first challenge to the search warrant is that the affidavit accompanying the warrant did not contain references to the time frame for methamphetamine-related activity and thus did not adequately establish that Fettig’s residence presently harbored contraband or evidence of a crime.
In support of this argument, Fettig points to the Minnesota Supreme Court’s “strong disapproval of the omission of time from an affidavit in support of a search warrant application.” See Harris, 589 N.W.2d at 789 (quotation omitted) (upholding warrant despite omission of time because it could be inferred from the affidavit). The facts in Harris, unlike the facts in this case, involved a necessary time link between a robbery and a homicide. Id. at 790. The precise chronology is not significant in the same
way when, as in this case, the activity is ongoing. State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998). Furthermore, the information referred to in the affidavits does provide a time context in two ways.
First, the affidavit for the search warrant for Fettig’s residence contains the police officer’s statement that the first informant told him about an “active methamphetamine manufacture lab.” Fettig contends that “active” is conclusory language that cannot be construed as “ongoing.” But the word “active,” spoken in the context of several other details about the nature of the methamphetamine operation and admissions against the informant’s own interest, provides grounds for the issuance of a search warrant. When these facts are combined with the corroborating report of the second informant who has been found in possession of methamphetamine, probable cause is established.
Second, although the affidavit does not separately indicate the date of the state trooper’s conversation with the second informant, it appears from the context of the affidavit to have been made on the same day as the first informant’s statement. Fettig further challenges the information in the affidavit provided by the second informant because her description of Fettig’s residence as “dirty” does not have a clear meaning. But the description of the residence as “dirty” is a direct response to an inquiry about the informant’s source of methamphetamine. Considering the corroborative role of the second informant’s statements within the affidavit, we reject Fettig’s argument that the affidavit is facially deficient to establish probable cause.
Fettig’s second argument is that material omissions on the part of the officer who prepared the affidavit require reversal of the district court’s determination of the search warrant’s validity. A search warrant may be voided, and any evidence obtained under the warrant suppressed, if the court finds that material facts were knowingly, or with reckless disregard for the truth, omitted from the affidavit. State v. Doyle, 336 N.W.2d 247, 250 (Minn. 1983) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978)). If the district court finds knowing or reckless omissions, it must supply the omissions and then determine whether the affidavit still establishes probable cause. Doyle, 336 N.W.2d at 250.
Fettig advances six material omissions which he asserts would void the search warrant: the officer knew that the first informant’s observations were six weeks old; the affidavit failed to state that the first informant had not been inside the residence or that she had obtained information from someone with a criminal record; and the affidavit did not address the timing of the second informant’s statement, her basis of knowledge, or what she meant by “dirty.” Fettig contends that the district court erred by failing to review a “revised” warrant which included the information. But the district court’s omnibus-hearing order expressly addressed each of these asserted omissions, reviewed them in light of the original affidavit, and explained why each omission would not undermine probable cause. The district court’s findings support the issuance of the warrant, and we therefore affirm the district court’s order denying Fettig’s motion to suppress evidence obtained under the search warrant.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.