This opinion will be unpublished and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
Rick Lee Semon,
Filed June 20, 2006
Toussaint, Chief Judge
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John M. Stuart, State
Public Defender, Susan J. Andrews, Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this appeal from his conviction of fifth-degree controlled-substance offense, appellant Rick Lee Semon argues that the search-warrant application lacked probable cause and that the district court failed to obtain appellant’s waiver of his rights associated with an adversarial trial. Because there was probable cause supporting the search-warrant application, we affirm the district court’s denial of appellant’s motion to suppress the evidence seized. Because the district court failed to obtain appellant’s waiver of his rights associated with an adversarial trial, we reverse and remand to the district court.
Appellant argues that the search-warrant application did not contain probable cause and, therefore, evidence seized during the search should have been suppressed.
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 (
Probable cause exists if an
affidavit sets forth competent evidence sufficient to lead a reasonably prudent
person to believe that evidence of a crime will be found at the location to be
searched. State v. Bagley, 286
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
State v. Wiley, 366 N.W.2d 265, 268 (
Here, probable cause was
based on information from a concerned citizen, who had never made a police
report before and provided personal identification and contact information. The concerned citizen informed a
The deputy drove by the residence and verified that there was a trailer at the address and identified one of the vehicles. Despite appellant testifying that his trailer was painted green with white trim on the day the search warrant was executed, appellant was residing in a trailer at the address.
Appellant concedes that the concerned citizen is presumed credible. See Harris, 589 N.W.2d at 789 (stating that statements from citizens may be presumed to be credible). But appellant argues there are innocent explanations for the things observed at the trailer. Regardless of possible innocent explanations, a reasonable person considering the totality of the circumstances could form the opinion that a methamphetamine lab was being operated at the residence. Specifically, based on the deputy’s experience in the drug task force, burns can be caused by the highly-explosive process of manufacturing methamphetamine, long-term methamphetamine use causes rotting teeth and a “skinny and gaunt” appearance, the red-phosphorus-method of methamphetamine manufacturing commonly creates a strong, undistinguishable odor, and syringes are often used to ingest methamphetamine and other controlled substances. Although reasonable minds may differ on whether probable cause existed, the facts support a fair probability that contraband or evidence of a crime would be found at appellant’s residence.
The deputy verified the accuracy of the concerned citizen’s information and confirmed that the concerned citizen did not have a criminal history. Additionally, the deputy performed drive-by surveillance and corroborated the description of the residence and one of the vehicles. While the deputy’s corroboration was not of key details related to controlled substances, the corroboration did lend credence to the concerned citizen’s tip. See Wiley, 366 N.W.2d at 269 (providing that while corroboration of informant’s statement that woman named Clare resided at particular address and parked 1973 Mercedes in front of that address was not corroboration of key detail, it did lend credence to informant’s tip).
The district court did not err in finding probable cause and denying appellant’s motion to suppress the evidence seized.
The parties agree that appellant’s conviction must be reversed because the district court never obtained a waiver of his rights associated with an adversarial trial. A stipulated-facts trial requires written or oral acknowledgement and waiver of the defendant’s “rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.” Minn. R. Crim. P. 26.01, subd. 3. A valid waiver under this rule requires that the defendant waive each right explicitly. State v. Halseth, 653 N.W.2d 782, 785–86 (Minn. App. 2002) (explaining that more than just right to jury trial must be waived under criminal rules).
Here, appellant agreed to proceed with a stipulated-facts trial but was only asked if he had enough time to talk to his attorney. Because this waiver was inadequate, appellant’s conviction is reversed and remanded to the district court.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.