This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jerry Lee Olson,
Filed August 2, 2005
Otter Tail County District Court
File No. K5-04-1558
Mike Hatch, Attorney General,
David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 W. Junius, Suite 320, Fergus Falls, MN 56537 (for appellant)
Mark D. Nyvold,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a pretrial order suppressing evidence and dismissing the charges against respondent, the state argues that the district court erred by concluding that the application for a search warrant was not supported by probable cause. Because we find no error, we affirm.
On August 23, 2004,
The police executed the search warrant and seized more than 40 grams of methamphetamine, several items of drug paraphernalia, and four guns, two of which had the serial numbers scratched off. Olson was charged with two counts of first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subds. 1(1), (2)1, 3(a) (2004); one count of theft, in violation of Minn. Stat. § 609.52, subds. 2(11), 3(1) (2004); and one count of illegal possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(j)(3) (2004).
At a pretrial hearing, Olson moved to suppress the evidence seized by police and to dismiss the charges on the ground that the state’s application for the search warrant failed to establish probable cause. The district court granted Olson’s motion and dismissed the charges. The state’s appeal follows.
D E C I S I O N
appeal from a pretrial order suppressing evidence, the state must demonstrate
that the district court has clearly and unequivocally erred and that the error,
unless reversed, will have a critical impact on the state’s ability to
successfully prosecute the defendant. State v. Horner, 617 N.W.2d 789, 792 (
United States and Minnesota constitutions provide that no warrant shall issue without
a showing of probable cause. U.S. Const.
review the search-warrant application to determine whether the issuing
magistrate had a “substantial basis” to conclude that probable cause
exists. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting
Gates, 462 U.S. at 238,
103 S. Ct. at 2332). A magistrate has a
substantial basis when there is a “fair probability that contraband or evidence
of a crime will be found in a particular place.”
The state argues that the district court erred by concluding that the search warrant was not supported by probable cause because the “totality of the circumstances indicates that more than sufficient probable cause was included in the application.” The district court’s concern with the search warrant was that the supporting affidavit failed to adequately demonstrate the reliability of the two confidential informants.
an informant’s tip provides the probable cause to issue a search warrant, the
court should consider the informant’s reliability and the basis of the
informant’s knowledge. State v. Ward, 580 N.W.2d 67, 71 (
The information in the affidavit submitted with search-warrant application does not satisfy any of the considerations supporting the reliability of CI-1. Although the affidavit states that CI‑1’s attempted purchases of methamphetamine were conducted under police surveillance, neither incident is described as a “controlled purchase.” In narcotics cases, “where the affidavit refers to a ‘controlled purchase,’ the magistrate may accept this as a term of art and presume” reliability. Ward, 580 N.W.2d at 71; see also Ross, 676 N.W.2d at 304. But “because ‘controlled purchase’ is an accepted term of art, the most logical assumption is that this was not a controlled purchase because an experienced drug enforcement officer would have identified it as such in the affidavit.” Ward, 580 N.W.2d at 73. Other than these attempted purchases, the affidavit contains no other information regarding the reliability of CI-1.
The only information in the affidavit that supports CI-2’s reliability is his admission that he is a regular user of methamphetamine and the police corroboration of Olson’s address. CI-2’s admission that he is a methamphetamine user is a statement against his interests, but caselaw suggests that this type of admission is only minimally relevant and supports a determination of reliability only when other factors are also satisfied. Ward, 580 N.W.2d at 71–72. And although a magistrate may rely on police corroboration of minor details, the affidavit here indicates that the only information verified by the police was Olson’s address, which is not enough to establish the informant’s reliability. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (holding that police corroboration of an address and ownership of a car is not sufficient to support a warrant based on information from a confidential informant).
affidavit does not indicate whether either CI-1 or CI-2 was a first-time
citizen informant, whether either had provided reliable information in the
past, or whether either approached the police voluntarily. But the reliability of an informant is just
one of the factors to consider in a totality-of-the-circumstances test, and the
“reviewing court is not to review each component of the affidavit in isolation
but is to view them together.” Ward, 580 N.W.2d at 71 (quoting State v. McCloskey,453
N.W.2d 700, 703 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.