This opinion will be unpublished and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
Filed July 26, 2005
St. Louis County District Court
File No. K9-02-600596
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)
Matthew K. Begeske, 713 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Forsberg, Judge.
On appeal from his conviction of first-degree controlled substance offense, appellant argues that the warrant was not supported by probable cause and that the district court abused its discretion in denying his motion to disclose the identity of the confidential informant or to allow inquiry into the informant’s track record. Because the court had a substantial basis for its probable cause determination and appellant’s disclosure request was based solely on speculation, we affirm.
raises the separate procedural issue of whether the district court ever properly considered the warrant’s
sufficiency. For several reasons,
appellant has waived this procedural issue.
First, he failed to brief or develop the issue on appeal.
“An appellate court reviews a
district court’s 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 (
An affidavit fails to support probable
cause when it includes no “details . . . that would permit the issuing
magistrate to independently evaluate” whether probable cause exists. State
v. Souto, 578 N.W.2d 744, 749 (
The primary basis of appellant’s
claim that the warrant application was insufficient is the inaccurate statement
that appellant resided at
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.
Appellant also argues that the information provided by informant #1 was stale, having been derived from “December 2001 and January 2002, some four to five months prior to execution of the search warrant in May.”
To avoid staleness, “proof must be
of facts so closely related to the time of the 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
The informant’s December 2001 statements to an agent that appellant had sold him heroin and was observed with heroin for sale on at least 10 occasions “in the past year” were facts indicating appellant’s ongoing drug sale activity, which were the basis for further surveillance of appellant’s activities. Other transactions reported by other informants and set out in the affidavit established appellant’s consistent May 2002 drug sale activities and showed that his previous activities were ongoing. Viewing the paragraphs in the light of the whole affidavit, the facts were not stale.
The remaining arguments challenging the sufficiency of the affidavit were not raised specifically in the district court. But because a Lothenbach plea preserves the right to appeal the probable cause finding, these issues raised for the first time on appeal are properly considered by this court. The issues are the relevance of informant #2’s information and the lack of facts on which informant #3 and corroborating witness #4 base their statements. Appellant claims that the information provided by these individuals was vague and lacking specificity.
Appellant argues first that the
supporting affidavit did not contain sufficient information to establish the
credibility or the reliability of the informant. In determining probable cause, the district
court must consider both the “veracity” and the “basis of knowledge” of persons
supplying hearsay information. Souto, 578 N.W.2d at 750 (quotation
omitted). “All of the facts relating to
the informant should be considered in weighing reliability.”
affidavit specified that informants #2 and #3 and cooperating witness #4 all
provided recent personal observations of appellant’s involvement in heroin or
crack cocaine sales. The affidavit also
contained statements by affiant that their information had been corroborated by
credible sources. Further, informant #2
personally observed drug sales and had purchased drugs at a
Viewing the components of the warrant affidavit together, there were ample facts showing the requisite object-place nexus for appellant’s recent drug-selling activity. Therefore, the district court had a substantial basis to determine that probable cause existed.
2. Identity of Informants
A defendant may
challenge the validity of a facially sufficient affidavit used to obtain a search
warrant and may obtain the identity of a confidential informant upon a prima
facie showing. State v. Luciow, 308
Appellant does not analyze the factors set out in Ford. At best, appellant’s request for disclosure and in camera review is based on speculation.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.