This opinion will be unpublished and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
Robert Clare Hageman,
Filed February 14, 2006
Dakota County District Court
File No. K5-05-1256
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)
D. Nyvold, W1610,
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Huspeni, Judge.
The state appeals from a pretrial order suppressing evidence obtained during a search of an apartment and dismissing a criminal complaint. Because the dog sniff in this case was not supported by reasonable suspicion of drug-related activity and the search warrant lacked probable cause absent the dog sniff, we affirm.
An informant gave a tip to the
Gelhaye included the above
information and a recitation of the suspects’ criminal histories in his
application for a no-knock, nighttime warrant.
The application for the warrant contained no details about the source of
the tip other than a statement that the informant’s identity was known to
After an omnibus hearing, the district court ruled that the drug sniff was conducted without reasonable suspicion and that, without the drug-sniff results, the warrant was invalid for lack of probable cause. This appeal followed.
D E C I S I O N
To obtain reversal of a pretrial
order suppressing evidence, the state must prove that the district court
clearly erred. State v. Ross, 676 N.W.2d 301, 303 (
“When reviewing pretrial orders on
motions to suppress evidence, we may independently review the facts and
determine, as a matter of law, whether the district court erred in suppressing—or
not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (
I. Probable cause absent results of drug sniff
In State v. Carter, the Minnesota Supreme Court, presented with the question of whether a dog sniff outside a self-storage locker is a search under the Fourth Amendment to the United States Constitution or article I, section 10 of the Minnesota Constitution, first addressed whether the search-warrant affidavit established probable cause independent of the dog-sniff results. 697 N.W.2d 199, 204 (2005) (“If there was independent probable cause, we would affirm [the] conviction and save the constitutional questions concerning the dog sniff for another day.”). Consistent with the reservation expressed in Carter, we turn first to an examination of the record to determine whether the district court clearly erred in concluding that probable cause in this case did not exist independent of the dog sniff.
search-warrant application relies on an informant’s tip, the informant’s
veracity and basis of knowledge are factors to be considered under the
totality-of-the-circumstances test. Ward, 580 N.W.2d at 71. And, “
A first-time citizen informant who has not been involved in the criminal underworld is presumed to be reliable, but the affidavit must specifically aver that the informant is not involved in criminal activity. Similarly, an informant’s reliability may be demonstrated where the informant has previously given police correct information, but the affidavit must explicitly state this to be the case.
An informant’s reliability may be established by sufficient police corroboration of the information supplied, and corroboration of even minor details can lend credence to the informant’s information where the police know the identity of the informant. Where an informant voluntarily comes forward (without having first been arrested) to identify a suspect, and in the absence of a motive to falsify information, the informant’s credibility is enhanced because the informant is presumably aware that he or she could be arrested for making a false report. In narcotics cases, where the affidavit refers to a “controlled purchase,” the magistrate may accept this as a term of art and presume that police searched the informant immediately before and after the alleged drug purchase and conducted surveillance of the purchase to the extent feasible.
Finally, the fact that an informant makes a statement against his or her own penal interest is of some minimal relevance in a totality-of-the-circumstances analysis.
In this case, the informant was neither someone with a credible track record nor someone a court could presume reliable, as neither was affirmatively stated in the warrant application. There is no reference to a controlled purchase, nor is there any indication that the informant had no motive to lie or came forward voluntarily. At best, this informant was simply anonymous; at worst, the informant could be a “grudge-bearer” of dubious credibility. It must be determined whether police adequately corroborated or verified the information so as to demonstrate the informant’s reliability.
Information from an anonymous informant, although verified by police, does not establish credibility if the “information could have been obtained from any one of a number of sources.” State v. Gabbert, 411 N.W.2d 209, 213 (Minn. App. 1987) (finding no increased credibility when the only information subsequently verified by police was that suspect and another person were friends; contrasting Gates, 462 U.S. at 245, 103 S. Ct. at 2335, where independent corroboration of an anonymous informant’s “highly detailed” information proved that he had access to inside information and was therefore credible); see also State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (stating that corroboration of an address and ownership of a vehicle did not alone establish informant’s credibility or probable cause).
Wiley, a case relied upon by appellant for the proposition that corroboration of even minor details can lend credence where the informant is known to the police,is clearly distinguishable from this case because the informant in that case was not only known to police, but had a track record of providing reliable information. 366 N.W.2d at 269. In McCloskey, another case that appellant cites,the informant’s willingness to present himself face-to-face to police, combined with his statement against interest, the police officer’s corroboration of non-key details such as ownership of the home, the informant’s basis of knowledge (personal observation), plus the suspect’s previous criminal record, created a “sufficient” basis for probable cause. 453 N.W.2d at 701-02, 704.
In this case, the assertion in the affidavit that the informant’s identity was known to police, combined with corroboration of only the most minor, easily ascertainable details given by the informant, is insufficient to establish that the informant was reliable. As the above cases demonstrate, when an informant is anonymous or lacks a track record or other indicia of reliability, corroboration of such minor details is not alone sufficient to establish credibility.
Respondent also correctly notes other deficiencies in the affidavit. “Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant’s knowledge.” Wiley, 366 N.W.2d at 269. There was no information about the informant’s basis of knowledge in this case. Cf. McCloskey,453 N.W.2d at 703 (stating that “basis-of-knowledge” prong would be satisfied by facts showing that informant had not only purchased drugs from defendant but had also been present in house to be searched, viewed what looked like cocaine therein, and had heard defendant refer to the substance as cocaine).
And, probable cause to search requires a direct connection, or nexus, between the alleged crime and the particular place to be searched. Souto, 578 N.W.2d at 747. “Because a stale factual basis may invalidate a search warrant, the affidavit also must supply proof of facts so closely related in time to the issuance of the search warrant as to justify a finding of probable cause at the time.” State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005) (citations omitted). Here, there was a statement of nexus between the suspected criminal activity and the place to be searched, but the affidavit did not reveal that the information was “fresh.” Although the affidavit explained that Gelhaye had obtained the tip from the SPPD within the month in which the warrant was signed, there is no explanation of when SPPD received the tip from the informant. Nor is there any indication of when the informant obtained his or her knowledge. Finally, the affidavit did not contain any evidence of an ongoing criminal enterprise.
The combination of these serious deficiencies regarding the informant’s tip denotes a clear lack of probable cause based on the tip and minor corroboration of its details alone. See Ward, 580 N.W.2d at 72 (stating that even if informant’s reliability was not decisively lacking, the reliability information that was “tenuous at best,” combined with other “deficiencies in the affidavit” rendered application insufficient to establish probable cause).
Aside from the informant’s tip,
Gelhaye had learned that appellant had been reported to be a methamphetamine user
and that both men had prior (unspecified) felony convictions and arrest records
for various offenses, including controlled substances. Criminal history, while not alone capable of
establishing probable cause, has been deemed a proper consideration as one
factor in the totality of the circumstances.
State v. Lieberg, 553 N.W.2d
51, 56 (
Given the failure to demonstrate that the informant was reliable, the absence of any information as to the informant’s basis of knowledge, and the failure of the informant’s tip to establish a sufficient nexus between the alleged activity and the residence, we conclude that the district court did not clearly err in determining that the search warrant, absent the drug sniff, did not establish probable cause to search.
II. Dog sniff in apartment hallway
In Carter, the court recognized that there were important reasons to
grant greater privacy protection under the state constitution and concluded
that “the sniff of a drug-detection dog outside [the] storage unit was a search
for purposes of the Minnesota Constitution.”
A police officer may conduct a
limited investigation without violating the constitutional prohibitions on
unreasonable searches and seizures if the officer has “specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry v.
The Supreme Court has recognized that
an informant’s tip insufficient to establish probable cause may be sufficient
to justify the lesser intrusion of a limited investigatory stop. Adams v. Williams, 407
In the context of an investigative
The supreme court has found reasonable suspicion based on a tip from a “CRI,” someone who, by definition, had given reliable information in the past. Munson, 594 N.W.2d at 136. By contrast, the supreme court held in a recent case that a tip consisting of only a person’s name and license plate number and a suspicion that she was involved in drug dealing, where the state had not “attempted to establish the tip’s origins, how old [it] was, or whether [it] was substantiated,” and had provided no other method of evaluating its reliability, was insufficient, when combined with the suspect’s nervous demeanor and suspicious driving behavior when pulled over, to establish reasonable, articulable suspicion to expand a traffic stop. Burbach, 706 N.W.2d at 490-91.
evaluated whether reasonable suspicion existed based on an unknown informant’s
tip. The tip in that case, like the tip
in the case before us, provided “virtually nothing from which one might
conclude that [the caller] is either honest or his information reliable,” White, 496
Here, although the tip was from an informant said to be “known” to the police, as discussed above there was no information about the informant’s reliability or how the informant obtained his or her information. And the only corroboration was of the suspects’ address and that a car matching the description given was parked in front of their building. This is the type of prediction that White stated would not establish reasonable suspicion.
Absent this insubstantial tip, the only other information available to Agent Gelhaye was an allegation from a completely unidentified person or persons that appellant was a methamphetamine user. Nothing in the affidavit explained where or how that information was obtained. In the absence of any facts regarding who made the allegation or on what basis, the statement that respondent was a violent drug user must also be treated as coming from an unknown informant with an unclear basis of knowledge and does not create the requisite reasonable suspicion. We find no error in the district court’s determination that the dog sniff was conducted without reasonable articulable suspicion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Respondent suggests
that this court should rule that the dog sniff in this case required probable
cause. Because the record demonstrates
that respondent did not litigate this issue in the district court, it is not
properly before us for decision. See Roby v. State, 547 N.W.2d 354, 347 (