This opinion will be unpublished and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,
Lester Ray Wiley,
Filed January 11, 2005
Affirmed in part, reversed in part, and remanded
Carver County District Court
File No. CR-03-478
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for appellant)
Kurt B. Glaser, Lisa D. Hill, Smith & Glaser, LLC, 331 North Second Avenue, Suite 250, Minneapolis, MN 55401-1627 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In its pretrial appeal from an order suppressing photographic lineup evidence and evidence seized in execution of search warrants, the state argues the order critically impacts the ability to successfully prosecute respondent for burglary, because stolen property seized pursuant to the search warrants would have tied respondent to other burglaries admissible as Spreigl evidence and would have tied him circumstantially to the charges against him—aiding an offender, obstruction of legal process, and burglary. The state also contends that because the affidavits indicate (1) the van seen leaving the scene was owned by respondent; (2) respondent’s report of the theft of the van was suspicious; (3) respondent had been connected to a burglary in the same location in 1992, and the affidavits also contain additional circumstantial evidence, probable cause is shown and the district court erred in focusing on the informant-witness’s request for anonymity in finding no probable cause. We affirm in part, reverse in part, and remand.
On June 7, 2003, at 5:43 a.m., Officer Julie Janke of the Chaska Police Department responded to an alarm at Aeration Industries. Upon her arrival at the scene, she observed a green van parked near the Aeration Industries office building. All of the van’s windows were intact, but Officer Janke was unable to locate anyone inside the van. She then noticed a black male crouching in the woods near the office building. As she approached him, he ran away, and a foot-chase ensued through the woods near the office building. When Officer Janke identified herself, and ordered the man to stop, he slowed and stated, “ok, ok.” But before Officer Janke could apprehend the suspect, he ran back to the parking lot toward the green van. Near the green van, he brandished a handgun. Officer Janke subsequently fired a shot, which struck the van. The suspect then jumped in the van and drove away.
Officer Janke reported the suspect as a black male in his 20s, 5’11”, 175 pounds, fuller face, and shoulder-length hair of a “dreadlock type.” A further investigation of the scene revealed that Aeration Industries had been burglarized, and that several laptop computers and an LCD projector had been stolen. Pry marks on the patio door indicated the burglar’s method of entry.
At approximately 9:00 a.m. that day, respondent Lester Wiley reported to the Minneapolis police that his green van had been stolen. He gave his address as 1030 Lowry Avenue in Minneapolis, but stated that the van was stolen from his girlfriend’s home at 1340 Vincent Avenue North, Minneapolis. The license plate of respondent’s van matched the license plate of the green van seen by Officer Janke at the Aeration Industries parking lot.
After learning that respondent owned the green van, a photograph of respondent, taken in 2000, was obtained by police and shown to Officer Janke. Upon viewing the photograph, Officer Janke stated that although there were some similarities with the shape of the face, she was “pretty sure” respondent was not the suspect.
Two Chaska police department detectives later went to 1340 Vincent Avenue North to contact respondent. The detectives observed at least three individuals inside, but no one answered the door. One detective then went to a neighboring home and described the suspect to a woman. She told him that a black male fit the general description of someone living at 1340 Vincent. Because the woman wished to remain anonymous, her name was not recorded.
On June 9, 2003, respondent’s vehicle was found in Fridley with a broken-out passenger window. Later that day, Officer Janke viewed, one by one, a photo line-up consisting of 20 pictures of black males, including a 1994 photograph of respondent with longer hair. Officer Janke was absolutely certain that 19 of the photographs were not of the suspect. The only photograph Officer Janke could not rule out was that of respondent. The next day, Officer Janke saw respondent in person at his workplace, viewed his recent employment identification photo, and listened to him state the phrase which she heard the suspect say on the night of the burglary. She could neither identify respondent as the suspect nor rule him out. Notably, the employer’s human resources director stated that respondent’s hair had not changed since the employment photograph was taken in January 2003.
Despite Officer Janke’s inability to positively identify respondent as the suspect, he was arrested on June 10, 2003, and search warrants for the 1340 Vincent Avenue North and 1030 Lowry Avenue North addresses were issued the same day. No illegal items were found at the Lowry address, but the search of the Vincent address revealed a variety of allegedly stolen items. None of the allegedly stolen items found at the Vincent address belonged to Aeration Industries, however.
Respondent was charged with aiding an offender under Minn. Stat. § 609.495, subd. 3 (2002); obstruction of legal process under Minn. Stat. § 609.50, subd. 1(1) (2002); and four counts of burglary under Minn. Stat. § 609.582, subds. 1-3 (2002). He moved to suppress the evidence obtained from the June 10 search warrants and from the photo line-up, and to dismiss the complaint. Contested omnibus hearings were held, at which one of the detectives testified that he omitted any mention from the search warrant affidavit that Officer Janke viewed the most recent driver’s license photograph of respondent, but she could not identify him as the suspect. The detective also admitted that the 20-photograph sequence shown to Officer Janke had been deleted from his computer. The detective further testified regarding the unidentified woman’s statement that a black male with dreadlocks or curls lived at 1340 Vincent.
In response to testimony regarding the unidentified woman’s statement, respondent stated that he had located the neighbor who matched the description of the unnamed woman, and that she disclaimed the statements attributed to her in the warrant. The district court then ordered that the identity of the neighbor cited in the warrant be disclosed. The detective, however, was able to describe only the general physical characteristics of the woman.
In support of his motion to suppress, respondent called Marchelle Davis, who testified that she was respondent’s neighbor, and was questioned by a detective on June 7, 2003. Davis stated that she told the detective that she had just moved to the neighborhood and that she did not know any of the neighbors. Davis also testified that there were a lot of black males in the neighborhood, and that she never told the detective that anyone wearing dreadlocks lived at a specific address.
The district court (a judge other than the judge who signed the search warrants) granted respondent’s motion to suppress the evidence obtained from the original search warrants on the basis that the state’s failure to identify respondent’s neighbor in the affidavit was fatal to a finding of probable cause, suppressed evidence obtained as a result of identification procedures because a large portion of the photo line-up was inadvertently destroyed, and denied respondent’s motion to dismiss the complaint.
D E C I S I O N
When the state appeals 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) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. “Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). “Whether suppression of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state’s evidence against the accused.” Zanter, 535 N.W.2d at 630. In the absence of critical impact, this court will not review a pretrial order. In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).
When analyzing critical impact, an appellate court should first examine all the admissible evidence available to the state in order to determine what impact the absence of the suppressed evidence will have. Zanter, 535 N.W.2d at 630-31. The reviewing court should then examine the inherent qualities of the suppressed evidence itself, its relevance and probative force, its chronological proximity to the alleged crime, its effect in filling gaps in the evidence viewed as a whole, its quality as a perspective of events different than those otherwise available, its clarity and amount of detail, and its origin. L.E.P., 594 N.W.2d at 168. “Suppressed evidence particularly unique in nature and quality is more likely to meet the critical impact test.” Id.
The state asserts that although it does not have any direct evidence against respondent, it possesses a substantial amount of circumstantial evidence linking respondent to the Aeration Industries burglary. The state contends that by suppressing the evidence obtained from the search warrants and the photo line-up, the district court effectively destroyed the state’s ability to successfully prosecute respondent.
During the execution of the search warrants, the state recovered an entry code to a gate at a local storage facility. Subsequent investigation revealed that respondent accessed the storage garage at 8:14 a.m. the morning of the Aeration Industries burglary. A separate warrant was obtained for the storage facility, where officers recovered a pair of baggy corduroy pants, a pair of baggy black jeans, and a replica firearm.
Officers also recovered a large amount of stolen property during the execution of the search warrants. The stolen property linked respondent to several recent metro-area burglaries. Of particular interest was the fact that four of the burglaries occurred in the neighboring community of Eden Prairie in the months preceding the burglary of Aeration Industries. In each of the four burglaries, pry marks were observed, illustrating a similar mode of entry. In addition, computers and electronic equipment were stolen in each of four Eden Prairie burglaries. Because of the lack of direct evidence linking respondent to the Aeration Industries burglary, the state asserts that it was going to seek admission of these prior bad acts to identify respondent as either the main suspect or an accomplice to these crimes.
Respondent argues that the state’s appeal is premature because the evidence of respondent’s alleged prior bad acts is Spreigl evidence which the district court has not yet ruled will be admissible. Respondent contends that without a ruling as to the admissibility of the Spreigl evidence, the state cannot show that the suppression has a critical impact on the state’s ability to prosecute respondent.
While there is superficial appeal in respondent’s argument regarding the Spreigl nature of the suppressed evidence, caselaw severely weakens that argument. In Zanter, the defendant was charged with murdering his co-worker. 535 N.W.2d at 630. Following an omnibus hearing, the district court suppressed a number of items, including some pictures and a set of keys that were found at the defendant’s house during the execution of three separate search warrants. Id. The state appealed, and this court affirmed. On review of this court’s decision, the Minnesota Supreme Court noted that the state sought to introduce both the photographs and the keys as Spreigl evidence to identify the defendant as the harasser. Id. The court also noted that the trial court had preliminarily ruled to allow as Spreigl evidence an allegation that the defendant admitted to another female co-worker that he took a computer manual from the victim’s desk without her permission. Id. Without giving an opinion as to the admissibility of the photographs or the keys, the court held that the suppression of the evidence had a critical impact on the state’s ability to successfully prosecute the defendant. See id. at 630-31 (stating that given the circumstantial nature of the state’s evidence against the defendant, the state’s ability to establish the defendant’s identity as the harasser and his motive to kill the victim were an essential part of the state’s theory of the case).
Here, the state acknowledged that it would seek to introduce all of the evidence obtained from the search warrants as Spreigl evidence. Although the district court has not yet ruled on the admissibility of this evidence, this does not, in itself, permit a conclusion that the critical impact test has not been met. See id. We note that the state’s case against respondent rests almost entirely upon circumstantial evidence. Without the evidence obtained in thesearch warrants, the state is left with evidence that respondent received stolen property from a 1992 burglary of Aeration Industries, and that he previously falsely reported his vehicle stolen after a home burglary in Plymouth in 1998. We do not know whether the suppressed evidence would have been admitted at trial. And we recognize that, arguably, it is logically inconsistent to speak of Spreigl evidence as having the ability to critically impact the state’s case. We must conclude, however, that pursuant to the holding in Zanter, suppression of evidence obtained from the search warrants in this case would have a critical impact on the likelihood of successful prosecution.
The state also argues that the suppression of the photo line-up evidence critically impacted the ability to successfully prosecute respondent. We disagree. Even assuming that the photographic line-up itself would have been admissible at trial, that evidence has been largely destroyed. Respondent has had no opportunity to review the photographs nor to respond to them in any way. Most important, the fact that Officer Janke would testify at trial that she could not eliminate respondent as the suspect after viewing the 20 photographs would constitute a minor piece of evidence at best. It would stretch the concept of critical impact beyond its breaking point to conclude that suppression of photo line-up evidence met the test of that concept. We conclude that suppression of the photo line-up evidence did not critically impact the state’s case, and therefore we need not address whether the decision to suppress that evidence was clearly erroneous.
A more difficult issue is raised by the state in its argument that the district court erred in concluding that there was not probable cause to support the issuance of the search warrants. An appellate court reviews the 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). 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 must provide the issuing judge with sufficient factual information to allow the judge to make an independent determination on the issue of probable cause. State v. Doyle, 336 N.W.2d 247, 249-50 (Minn. 1983).
If the application for a search warrant includes intentional or reckless misrepresentations of fact that are material to the finding of probable cause, the search warrant is void and the fruits of the search must be excluded. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989). A misrepresentation is material if, when set aside, there is no longer probable cause to issue the search warrant. Id. If the misrepresentation is material, then the district court must determine whether the police deliberately or recklessly misrepresented facts because innocent or negligent misrepresentations will not invalidate a warrant. Id.
In this case, the issuing judge found probable cause to issue the search warrants; a second judge, upon hearing substantial testimony, reached a contrary conclusion and suppressed all evidence seized pursuant to those warrants. In suppressing the evidence, the district court stated in its memorandum that
the neighbor’s account that a suspect matching the description lived at 1340 Vincent is material to a finding of probable cause, that the informant is likely a material witness, and that the State’s use of information from that witness as a basis in the search warrant affidavit was reckless in light of the fact that it purposefully decided not to collect identifying information about the witness. . . . The statement from the witness is the only fact that the police assert in the affidavit that ties [respondent] to the dreadlock-wearing suspect. Additionally, the neighbor’s statement is the only evidence that connects a man with “shoulder length dreadlocks or curls” to the 1340 Vincent address.
In support of its claim that the second judge erred in reversing the original judge and in determining that the information provided by the unidentified woman was material to a finding of probable cause, the state asserts that the affidavit in support of the issuance of the search warrants contained the following information: a burglary occurred at Aeration Industries on June 7, 2003; the suspect was a black male, 5’11”, 175 pounds, with shoulder-length black hair in dreadlocks; the suspect left the scene of the burglary in a green van; prior to Officer Janke’s encounter with the suspect, she walked around the van and observed all the windows intact; respondent is the owner of the green van observed by Officer Janke at Aeration Industries the night of the burglary; a few hours after the burglary, respondent reported that someone stole his van, the van was recovered in Fridley two days later with the front passenger window broken out and the keys in the ignition; glass was seen in the street outside of 1340 Vincent Avenue in the area where respondent reported the vehicle stolen; in 1992, Aeration Industries was burglarized, and items from the burglary were found in respondent’s possession; respondent sometimes stays at 1340 Vincent Avenue when he is out on weekend passes from his Department of Corrections half-way house; respondent reported that his green van was stolen from the 1340 Vincent Avenue address; respondent lives at and/or has significant connection to the 1030 Lowry Avenue address; and respondent has a criminal history that includes convictions for burglary.
The state contends that the unidentified woman’s statements were not material because, notwithstanding her statements, there is sufficient evidence in the affidavit to establish probable cause to issue the warrants. We agree. Respondent admitted that he stayed at the 1340 Vincent Avenue address the night of the burglary, and claimed that his van was stolen from that address. Respondent’s van was unquestionably the vehicle used in the burglary of Aeration Industries, and the circumstances under which respondent reported his vehicle stolen are suspicious. There was glass at the scene where respondent alleged that the van was stolen, yet, when Officer Janke observed the van in the Aeration Industries parking lot, the windows were intact. It was not until the van was recovered in Fridley that the window was observed to be broken. Furthermore, respondent’s past criminal history includes burglary convictions, and items from a previous burglary of Aeration Industries were found in respondent’s possession. Although each piece of information in the search warrant affidavits may not in itself establish probable cause, when taken together, the information provides a “fair probability,” given the totality of the circumstances, that contraband or evidence of the Aeration Industries burglary would be found at the addresses listed in the warrants. See Rochefort, 631 N.W.2d at 804.
Despite the volume of evidence contained in the search warrant affidavit, the district court found the unidentified woman’s statements to be material because only those statements linked respondent to the “dreadlock wearing suspect” and the 1340 Vincent address. But the fact that respondent’s van was used in the burglary, and the suspicious circumstances surrounding the alleged theft of the van, combined with respondent’s frequent stays at the 1340 Vincent address, sufficiently establish a connection between respondent and the burglary. In light of all the information contained in the affidavit, we conclude that the unidentified woman’s statements are not material to a finding of probable cause.
We also note that when reviewing a district court’s probable cause determination made in connection with the issuance of a search warrant, we generally afford the district court great deference. See State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999); see also State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). That caution applies fully when reviewing the determination of a signing judge that probable cause supported issuance of a warrant. The circumstances of this case involve not only that signing judge, however, but a second judge who heard evidence regarding the anonymity of a woman making statements the court believed were material, and who heard of evidence omitted from search warrant affidavits. The second judge was understandably concerned with the police investigation that was arguably less than stellar, and with the omission of evidence in the search warrant affidavits. We accept the reasonableness of that court’s concern. The critical issue, however, is the materiality of the unidentified woman’s statements. Because we have concluded that those statements are not material to a finding of probable cause, we need not address the issue that appears to have been of greatest concern to the district court—whether the police acted in a reckless or deliberate manner. See State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977) (stating that the first step in deciding whether the fruits of a search must be excluded based on an invalid warrant is to determine whether the misstatement of fact in the affidavit is material to the determination of probable cause). We therefore conclude that there was sufficient probable cause to support the search warrants, and the district court erred in suppressing the evidence obtained during the execution of those warrants.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The victim had been subject to on-going harassment at her workplace and, as part of the harassment, her keys had been stolen at least four times and never returned. Zanter, 535 N.W.2d at 627.
 This court affirmed the suppression of the photographs on the basis that the state did not meet its burden of showing that the suppression of the photographs would have a critical impact on the state’s ability to successfully prosecute the defendant. Id. The court suppressed the keys on the basis that there was no probable cause for the issuance of the third search warrant. See id. (stating that the court of appeals failed to address the issue of whether the suppression of the keys met the critical-impact standard).
 The admissibility of this evidence has yet to be determined by the district court.
 Respondent reported to police that he could not find the keys to his van.