This opinion will be unpublished and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
David Alan Bolander,
Filed April 11, 2006
St. Louis County District Court
File No. K9-02-600498
Mike Hatch, Attorney General, Catherine M. Powell, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Alan L. Mitchell,
Richard P. Holmstrom,
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree controlled substance offense, appellant argues that evidence seized pursuant to the search warrant for appellant’s residence should have been suppressed because the warrant application failed to establish probable cause. Relying on this court’s unpublished opinion in State v. Waino, No. A03-516 (Minn. App. Dec. 2, 2003), review denied (Minn. Feb. 25, 2004), suppressing evidence seized under an identical warrant application from a co-defendant’s house, appellant argues that the district court in this case erred in coming to a different conclusion. Because there was sufficient evidence in the application to support a finding of probable cause to search appellant’s residence for controlled substances, we affirm.
On May 2, 2002, Special Agent Koneczy applied for search warrants for both Bolander’s residence and Waino’s residence. The district court found probable cause for the search of both residences and issued the warrants. Methamphetamine and manufacturing equipment were found in both residences.
Bolander’s co-defendant, Waino,
challenged the validity of the search warrant at a contested omnibus hearing,
and the district court ruled that the search warrant was invalid for lack of
probable cause because (1) the affidavit did not contain sufficient evidence of
several of the confidential informants’ reliability; and (2) the information
was stale. The state appealed and this
court affirmed in State v. Waino, No. A03-516, 2003 WL
22846231 at *4 (Minn. App. Dec. 2, 2003), review
Bolander also challenged the
validity of the search warrant at a contested omnibus hearing, and the district
court ruled that the search warrant for Bolander’s residence was valid. Bolander filed a motion to reconsider in
light of this court’s decision in Waino, but the district court denied his
motion. Bolander then submitted his case
to the district court pursuant to State
v. Lothenbach, 296 N.W.2d 854 (
argues that because the affidavit of probable cause for the issuance of the
search warrant in this case is identical to the affidavit of probable cause
reviewed in State v. Waino, No.
A03-516, 2003 WL 22846231 (Minn. App. Dec. 2, 2003), review denied (
Bolander’s argument fails for three
reasons. First, unpublished opinions of
the court of appeals are not precedential. Minn. Stat. § 480A.08, subd. 3(c) (2002);
Vlahos v. R&I Constr. of Bloomington,
Inc., 676 N.W.2d 672, 676 n.3 (
Bolander next argues that the
totality of the circumstances did not support a finding of probable cause to
issue a search warrant for the Bolander residence. The
When a search warrant is based on an
informant’s tip, this court examines, among other things, the informant’s
veracity and basis of knowledge to determine whether the information supports a
finding of probable cause. Ward, 580 N.W.2d at 71. Courts prefer recent, first-hand observation
of incriminating conduct by reliable informants. Id. The reliability of an informant can be
established by an explicit statement in an officer’s affidavit that the
informant has previously given police accurate information.
The affidavit, however, fails to establish the reliability of CI-4. Special Agent Koneczny’s affidavit states that CI-4 is a known citizen informant. Even though a “first-time citizen informant who has not been involved in the criminal underworld is presumed to be reliable,” id., 580 N.W.2d at 71, the affidavit is silent as to whether CI-4 was a first-time informant, had been involved in criminal behavior, or had previously provided reliable information to officers. Because the affidavit fails to establish the reliability of CI-4, the information provided by this informant is not shown to be reliable.
CI-6 provided both first- and second-hand knowledge about both Bolander and Waino, and is best characterized as an informant who supplied statements against his or her penal interest. While courts are reluctant to give weight to information obtained against an informant’s penal interest, warrants have been upheld when the informant’s statements against interest have some corroboration or other indicia of reliability. See id., 580 N.W.2d at 71–72. CI-6 did not come forward voluntarily. Thus, in order to establish CI-6’s reliability, the affidavit must show that some of the statements made by CI-6 were independently corroborated. In Waino, this court found the information supplied by CI-6 to be unreliable, stating that “[a]lthough the affidavit indicates that the officers attempted to independently corroborate the information provided by confidential informant 6 through surveillance of the residence of David Bolander, another alleged supplier of methamphetamine, and a search of the garbage from Bolander’s residence, the officer’s attempts failed.” 2003 WL 22846231, at *3.
the officer’s failure to corroborate the information CI-6 supplied regarding
Waino does not automatically mean that the officer’s attempts failed to
corroborate the information CI-6 supplied regarding Bolander. The corroboration of even minor details can
enhance the credibility of an informant’s information where the police know the
informant’s identity. State v. Wiberg, 296 N.W.2d 388, 396 (
a further attempt to corroborate information obtained from the informants, on
April 30, 2002, Special Agent Koneczny conducted a “garbage pull” at
Bolander’s residence. Significantly, the
police did not conduct a “garbage pull” at the Waino residence. While the garbage search did not produce any
clear indicia of methamphetamine production, it did result in the discovery of
marijuana plant materials. Contraband
seized from a garbage search can provide an independent and substantial basis
for a probable-cause determination. See State v. Papadakis, 643 N.W.2d 349, 356
(Minn. App. 2002) (finding that spoon with burn marks and plastic bag
containing cocaine residue were sufficient to establish probable cause for
search). Most recently, in State v. McGrath, this court concluded
that residual amounts of marijuana found in garbage searches supported a
reasonable expectation that more marijuana or other evidence of criminal
activity would be found on the premises. 706 N.W.2d 532, 544 (
Probable cause to issue a search warrant requires a fair probability to believe that contraband or evidence of a crime will be found in the location to be searched. Harris, 589 N.W.2d at 788; Zanter, 535 N.W.2d at 633. Here, in addition to methamphetamine, the search-warrant application and affidavit sought other controlled substances, including marijuana and drug paraphernalia. While the discovery of marijuana does not directly corroborate any of the confidential informants’ information regarding Bolander, it does strengthen the probability that illegal drugs would be found on Bolander’s property. This provided an independent and substantial basis for establishing probable cause to issue a search warrant for that residence. See McGrath, 706 N.W.2d at 544.
probable-cause analysis requires us to examine two final issues: (1) the
staleness of the evidence used to support the probable cause determination; and
(2) the nexus between the alleged crime and the particular place to be
searched. A search warrant affidavit
must supply specific facts to establish a “direct connection, or nexus,”
between the crime alleged and the place to be searched, “particularly in cases
involving the search of a residence for evidence of drug activity.” State v.
Souto, 578 N.W.2d 744, 747–48 (
Here, some of the evidence obtained from the various informants was arguably stale. The evidence from CI-X, for example, was obtained in March 2001. Although there was other information in the record to suggest that there was ongoing criminal activity at Bolander’s home, the information from CI-X was over a year old—considerably undermining its reliability. But unlike Waino, where much of the informant information was more than a year old, see Waino, 2003 W.L. 22846231 at *4, some of the evidence against Bolander was much more recent. For example, the evidence from CI-6 was obtained in April 2002, only a few weeks before the search warrant was issued. Moreover, police conducted the “garbage pull” indicating possession of marijuana two days before applying for the search warrant. This evidence was not stale. In addition, this evidence established a “direct connection, or nexus, between the alleged crime and the particular place to be searched” necessary to establish probable cause. DeWald, 463 N.W.2d at 747.
Based on the totality of the circumstances, there was a fair probability that illegal drugs were located at the Bolander residence. Thus, the district court had a substantial basis for concluding that probable cause existed for the search of Bolander’s home.