This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brock Phillip Turnquist,
Filed April 5, 2005
Clay County District Court
File No. K5-03-88
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
Bradford Colbert, Suite 254, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Brock Turnquist guilty of two counts of first-degree controlled-substance crime. In this appeal from conviction, Turnquist challenges the sufficiency of the affidavit to establish probable cause for the warrant-authorized search that resulted in seizure of the controlled substances from a motel room. Because the affidavit offered in support of the warrant establishes probable cause, we affirm.
F A C T S
Moorhead police officers obtained a search warrant for a TraveLodge Motel room after executing an arrest warrant and observing contraband and other items on a nightstand. The execution of the arrest warrant developed from a TraveLodge manager’s call to a Moorhead police narcotics detective after the manager became suspicious of Danelle Olson, a registered guest who had asked to extend her occupancy. The manager reported that when Olson checked in she listed a local address, paid cash, and requested no housekeeping or room service.
In a record check, the detective learned that Olson had two active misdemeanor arrest warrants. The detective, along with a patrol officer, went to Olson’s room and knocked on the door. Brock Turnquist answered the door and gave the police permission to enter. The detective approached Olson who was dressed and lying on the bed. The detective identified himself and the patrol officer, told Olson that they had two warrants for her arrest, and said she would have to come with them to the Clay County jail. After a brief discussion, Olson said, “You’ve got me. I have warrants, let’s get out of here.” As the detective was talking to Olson, he saw, on the nightstand next to the bed, a laminated piece of paper, a package of Zig-Zag rolling papers, and a green leafy substance that the detective recognized as marijuana.
The detective asked the patrol officer to take Olson to the squad car. The detective then talked to Turnquist. He told Turnquist that he had observed the marijuana and that he believed there were more drugs in the room. He asked Turnquist for permission to search the room, and Turnquist said he would not consent. Turnquist told the detective that he had been recently released from the Cass County jail pending charges for marijuana and methamphetamine offenses. Based on this conversation, his observations of the items on the nightstand, and the information from the motel manager, the detective obtained a warrant to search the motel room.
The affidavit in support of the search warrant recounts the events leading up to the entry of Olson’s motel room and states that, while talking to Olson about the warrant, the detective saw on the nightstand next to the bed “a package of Zig-Zag cigarette rolling papers and a green leafy substance,” which he recognized as marijuana based on his experience and training as a drug enforcement officer. The affidavit further states that the detective “observed a piece of paper next to the Zig-Zag papers with first names written on it with amounts written after the names.” The detective stated that this “is commonly referred to as a pay-owe sheet for persons that sell drugs . . . to keep track of what they owe and what is to be paid.” The affidavit also includes Turnquist’s statement to the detective about Turnquist’s recent release on marijuana and methamphetamine charges. The final information on the affidavit, apparently to confirm this statement, is Turnquist’s arrests for three drug-related charges on three separate dates.
In executing the search warrant, police found and photographed on the nightstand two cell phones, a partially smoked marijuana cigarette, marijuana sprinkled on a piece of laminated paper, and a green piece of paper with writing indicating names and amounts. Inside the drawer of the nightstand, police found a cardboard box. The box contained tape, scissors, three small scales, a plastic spoon, two plastic bags with marijuana inside, a laminated paper folded to act as a funnel, and two plastic bags that held a total of 29.6 grams of methamphetamine.
As a result of the search and further investigation, the Clay County Attorney charged Turnquist with first-degree possession of methamphetamine under Minn. Stat. § 152.021, subd. 2(1) (2002), and first-degree sale of methamphetamine under Minn. Stat. § 152.021, subd. 1(1) (2002). At an omnibus hearing, Turnquist moved to suppress evidence seized from the motel room. Following an evidentiary hearing, the court denied the motion. A jury found Turnquist guilty of both first-degree controlled-substance crimes. In this appeal from conviction, Turnquist contends that the district court erred in denying the motion to suppress the evidence obtained from the motel room because the affidavit in support of the warrant fails to establish probable cause.
D E C I S I O N
The United States and Minnesota Constitutions provide that warrants must be supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. When reviewing a determination of probable cause, we analyze whether the affidavit offered in support of the warrant, viewed as a whole, provides a substantial basis for a finding of probable cause. 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). The task of the issuing judge is to make a practical, common-sense decision about whether the affidavit in support of the warrant sets forth sufficient, competent evidence from which a person could infer that there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).
The affidavit in support of the warrant lists the reasons underlying the request: (1) the motel manager’s report on the motel registrant who listed a local address, paid in cash, and requested no housekeeping or room service; (2) the detective’s list of items on a nightstand that he observed while executing the arrest warrant, which included a package of Zig-Zag rolling papers, a green, leafy substance that the detective recognized as marijuana, and a piece of paper next to the Zig-Zag papers with names on it and amounts written after the names, which the detective believed to be a pay-owe sheet for drug sales; (3) Turnquist’s statement to the detective that he had just been released from the Cass County jail pending drug charges involving marijuana and methamphetamine; and (4) information from police records confirming Turnquist’s three prior arrests on drug-related charges.
Turnquist casts his appeal as a challenge to the sufficiency of the probable cause to support the warrant. His specific arguments, however, are whether a search warrant may properly issue when it is primarily based on a police officer’s observation of a small amount of marijuana and whether it was reasonable for the police to observe the pay-owe sheet while arresting Olson.
A search warrant may be held void and the product of the search excluded from evidence if it is demonstrated by a preponderance of the evidence that the affiant, knowingly or with reckless disregard for the truth, included a false statement in the affidavit. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978). Turnquist has not alleged or presented evidence that the Moorhead police detective knowingly or recklessly made false statements in the affidavit. Consequently, our analysis is directed to the facial sufficiency of the warrant.
We find no support for Turnquist’s argument that observation of less than a felony amount of marijuana cannot provide a basis for issuance of a search warrant. The reported cases would indicate otherwise. See, e.g., State v. Schinzing, 342 N.W.2d 105, 110 (Minn. 1983) (accepting police officer’s discovery of marijuana cigarette and drug paraphernalia as basis for further search); State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985) (upholding observation of one marijuana plant as sufficient basis to search for other plants in same apartment), review denied (Minn. Sept. 19, 1985).
But more significantly, the search warrant for the TraveLodge motel room was not based solely on the presence of the marijuana. It was based on the detective’s observation of the marijuana in conjunction with the other items and the other information set forth in the affidavit: the suspicious factors of the occupancy that suggested possible drug activity, the pay-owe sheet, Turnquist’s statement about his recent arrests on drug-related conduct, and the confirming record of Turnquist’s arrests.
Turnquist’s second argument, that it was unreasonable for the police to observe the pay-owe sheet on the nightstand, also lacks legal support. After entering the room, the officer walked toward Olson to speak with her about the arrest warrant. Olson was on the bed, and the nightstand was next to the bed. The detective, trained as a narcotics officer, saw the marijuana and focused on it and the items on the nightstand. Turnquist acknowledges that the officer lawfully entered the room and took Olson into custody. When police are in a place that lawfully produces a plain view of an incriminating article, they may seize the article or use the information to obtain a search warrant. State v. Bradford, 618 N.W.2d 782, 795 (Minn. 2000). We find no basis in the law for excluding these observations.
The totality of the circumstances supports a finding of probable cause: the suspicious circumstances surrounding the rental of the room, the marijuana and Zig-Zag papers in plain view, the pay-owe sheet that the detective recognized as involving drug sales, and Turnquist’s statement to the detective that he had just been released from jail on charges involving marijuana and methamphetamine. The district court did not err in denying Turnquist’s motion to suppress the evidence obtained in the warrant-authorized search.