This opinion will be unpublished and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,
David Kenneth Dahlheimer,
Laura Lee Dahlheimer,
Filed November 23, 2004
Reversed and remanded
Hubbard` County District Court
File No. K2-03-853
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 court Street, Park Rapids, MN 56470 (for appellant)
Joseph Kaminsky, 6300 Shingle Creek Parkway, Suite 260, Brooklyn Center, MN 55430 (for respondents)
Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Stoneburner, Judge.
The district court suppressed evidence and dismissed charges against respondents pertaining to the manufacture of methamphetamine, finding that a search warrant was defective due to (1) stale information, (2) inadequate evidence regarding the informant’s reliability, and (3) insufficient details to supply probable cause. Because we conclude that the search warrant was properly supported by probable cause, we reverse and remand for trial.
On 7 October 2003, agents of a drug task force received information that respondents David and Laura Dahlheimer were manufacturing methamphetamine in their home. A search warrant for respondents’ home was obtained the same day. Police officers went to the home and found respondents standing outside. Upon seeing the officers, respondent David Dahlheimer ran and threw a suitcase into the brush. Inside the suitcase, officers found parts of a portable methamphetamine lab including plastic tubing, Red Devil lye, syringes, coffee filters, clips, green gloves, a finger scale, and containers of liquid. Inside respondents’ home, officers found white residue that tested positive for methamphetamine. Respondents were charged with conspiracy to commit controlled substance crime in the first degree.
Respondents’ cases were consolidated because the facts, search warrants, and issues were identical. At an omnibus hearing, respondents moved for exclusion of the evidence seized, arguing that the search warrant was defective and lacked probable cause. The district court granted the motion, ordering the evidence suppressed and the charges against both respondents dismissed. The state challenges this ruling.
D E C I S I O N
In reviewing search warrants, Minnesota courts require “a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence for evidence of drug activity.” State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998). This court reviews the issuing court’s determination of probable cause for a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Bradford, 618 N.W.2d 782, 795 (Minn. 2000); State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). 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) (citation omitted). Reviewing courts give great deference to the issuing judge’s determination of probable cause. State. v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).
To determine the existence of probable cause, the reviewing court may consider only the information presented in the affidavit supporting the search warrant application. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996). Probable cause exists if the supporting “affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search.” State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994). A court should review an affidavit under the totality of the circumstances test and avoid reviewing each part of the affidavit in isolation. State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991). Doubtful or marginal cases should be resolved in favor of the deference given to warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
The district court found that factual inadequacies in the affidavit supporting the search warrant application required a finding of a lack of probable cause. These inadequacies correspond generally to the following categories.
The district court asserted that the information that David Dahlheimer had been arrested about five weeks prior to the issuance of the search warrant for possession of methamphetamine was too stale to support a finding of probable cause. To avoid staleness, “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.” Souto, 578 N.W.2d at 750 (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140 (1932)). Factors used to determine staleness include: the age of the informant, whether there is an indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, whether the property sought is easily disposable or transferable, and whether the property would have enduring utility. State v. Jannetta, 355 N.W.2d 189, 193-94 (Minn. App. 1984), review denied (Minn. 14 Jan. 1985).
Here, respondent David Dahlheimer’s arrest for possession of methamphetamine approximately five weeks before was included in the affidavit. The affiant also stated that “manufacturing methamphetamine is often an ongoing process.” Thus, “ongoing criminal activity” is the only factor used to determine staleness that is relevant here. If an affidavit indicates that drug-related activity is of an ongoing nature, the passage of time between particular transactions is less significant. State v. Dyer, 438 N.W.2d 716, 719 (Minn. App. 1989), review denied (Minn. 9 Jun. 1998). Minnesota courts have held that a time gap longer than five weeks did not make information stale. See, e.g., State v. Demry, 605 N.W.2 106, 109 (Minn. App. 2000) (information four to six weeks old was not stale), review denied (Minn. 28 Mar. 2000); State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987) (information concerning marijuana farming that was one to one-and-a-half months old was not stale). Taken together with other information in the affidavit, an arrest for possession of methamphetamine five weeks earlier could be used reasonably in conjunction with suspicion of manufacturing activity to indicate ongoing criminal activity. The five week interval between the arrest and the application for a warrant, by itself, does not compel the conclusion that the warrant lacked probable cause.
2. Informant’s Reliability
The district court stated that the search warrant lacked probable cause because there were insufficient facts to demonstrate the informant’s past reliability. A proven track record is a primary indicator of an informant’s reliability, but specific details of an informant’s record are generally not required. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999); see also Wiley, 366 N.W.2d at 269 (holding assertion that informant “has been used over several years successfully” was sufficient, but indicating that more specific language is preferred).
Here, the affidavit specified that the informant had “provided information to law enforcement that [had] led to the seizures of at least five methamphetamine labs in the past.” More specifics may be preferred, but taken alone, this information about the informant’s track record does not constitute a deficiency in probable cause to justify invalidating the warrant.
3. Lack of Specificity
Next, the district court asserted that the affidavit lacked sufficient details to support a finding of probable cause. Probable cause cannot be established by conclusory affidavits, lacking detail about the circumstances supporting the affiant’s belief that probable cause exists. State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989), review denied (Minn. 21 Jun. 1989). A reviewing court, however, must not attempt to undermine the issuing court’s decision by using a hyper-technical analysis of the affidavit. Kahn, 555 N.W.2d at 18.
In addition to the above information about David Dahlheimer’s prior arrest and the informant’s tip, the affidavit included the following details: (1) a police officer learned that a man who was seen eating breakfast with Laura Dahlheimer had purchased Toluene, matches and iodine, all used in manufacturing methamphetamine; (2) an informant told law enforcement that he had “observed components of a methamphetamine lab” at respondents’ residence; and (3) the store manager of a local Pamida reported to police that he had seen respondents purchase bottles of Heet, Sudafed, and Coleman fuel, which are used in manufacturing methamphetamine. Notwithstanding these details, the district court cited the following grounds to support the affidavit’s lack of specificity: (1) no date for the observed breakfast meeting between Laura Dahlheimer and the man who purchased items used to manufacture methamphetamine; (2) the “components” used to manufacture methamphetamine seen at respondents’ residence were not listed; (3) the lack of specifics about how the items respondents purchased at Pamida left the store or where they were taken; and (4) the affiant’s statements that respondents’ home was within 100 yards of a camper, two out-buildings, and a vacant apartment complex, none of which related to any other facts.
The district court’s criticism of these missing details exemplifies the type of hyper-technical scrutiny prohibited by this court in Kahn. A common sense reading of the affidavit demonstrates that it contains sufficient details and factual circumstances to support the affiant’s belief. See Anderson, 439 N.W.2d at 425 (advocating common sense rather than hyper-technical interpretation of affidavits). The missing date that the district court cited can be reasonably inferred to be contemporaneous with the dates that are provided. Although exact dates and times for alleged events are preferred, courts do not hold warrant applications to the same standard required for pleadings, given that warrant applications are often hastily drafted by non-lawyers during an ongoing criminal investigation. See Harris, 589 N.W.2d at 791. Facts establishing the nexus between respondents’ home and drug activity include seeing a man who police learned had purchased items used to manufacture methamphetamine in respondents’ home and an informant’s statement to officers that he saw components of a methamphetamine lab at respondents’ home. Moreover, the fact that any marginal cases should be determined by the deference accorded to warrants also favors the affidavit’s sufficiency. See Anderson, 439 N.W.2d at 425 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746 (1965)). Although not a model, overall the affidavit contains adequate facts to establish probable cause. Under the totality of the circumstances, the details given, along with the remainder of the affidavit, provide a reader relying on common sense with sufficient probable cause. Given the deference this court allows the issuing judge, the lack of a few specifics in the affidavit does not invalidate the warrant. We reverse and remand for trial.
Reversed and remanded.