This opinion will be unpublished and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
State of Minnesota,
Bryan Michael Timm,
Dakota County District Court
File No. K6042650
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom,
Jonathan M. Peck, Howard Bass, Bass & Peck, PLLC, 14101 Southcross Drive West, Suite 100, Burnsville, MN 55337 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
Appellant challenges his conviction of a fifth-degree controlled-substance offense, arguing that the warrant to search his person, residence, and vehicle was not supported by probable cause. Because of the deference accorded to warrants, we affirm.
Lakeville Police Investigator Mark
Holden applied for a warrant to search appellant’s person, residence, and the
vehicle he used. Holden stated in the
affidavit supporting the warrant application that within 24 hours before the
application, he had received information from a known confidential reliable
informant (CRI). Holden stated that the
CRI advised him “that [the CRI] knew Timm . . . that [Timm] lives at [a specified
address]; and that [Timm] is in possession of cocaine.” Holden stated that the CRI also advised him
that “[Timm] would drive around in a green Cadillac and distribute the
narcotics.” Holden further stated that
an examination of trash from the address specified by the CRI verified that
Timm lived with his mother and father at that address, and a check of city
records revealed that 12 days before the application, Timm had been stopped
driving a green Cadillac registered to Timm’s parents and was found to be in
possession of about 77.5 grams of marijuana.
Holden stated that within weeks of the application, he had worked “on a
detail where another CRI has attempted to purchase narcotics from [Timm] and
that Timm would be driving a Green colored Cadillac, however, [Timm] did not
wish to travel into the
A warrant was issued, and the executing officers, including Holden, seized 2.65 grams of cocaine and drug paraphernalia from Timm’s car and $626 cash and additional drug paraphernalia from Timm’s residence. Timm was charged with a fifth-degree controlled-substance crime. The district court denied Timm’s motion to suppress evidence obtained from the searches conducted pursuant to the warrant, and Timm submitted the case to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty and stayed imposition of sentence. This appeal followed.
We review the district court’s
determination of probable cause to issue a search warrant to ensure that there
was a substantial basis to conclude that probable cause existed. State
v. Harris, 589 N.W.2d 782, 787-88 (
Appellant, Michael Timm, argues that in this case the warrant application was deficient because it (1) did not specify the basis of an informant’s purported knowledge or when the informant obtained the knowledge; (2) did not establish a nexus between the alleged crime and the places to be searched; (3) did not contain sufficient corroboration of the informant’s tip to establish reliability of the tip; and (4) contained information that dispelled any suspicion about Timm’s involvement with drugs.
In determining probable cause, the
issuing court must consider the “veracity” and “basis of knowledge” of persons
supplying the information as relevant considerations in the
But Timm correctly points out that the application does not provide any information about how the CRI obtained information that Timm “is in possession of cocaine” and does not state when the CRI obtained that knowledge. The district court’s determination that the CRI saw Timm in possession of cocaine within 24 hours before the application is without support in the application and is clearly erroneous. And Holden’s statement that the CRI gave him the tip within 24 hours before the application is insufficient to lead to an inference that the CRI’s information was recent. The only temporal indication contained in the CRI’s report to Holden is the use of the present tense in the CRI’s report that “[Timm] is in possession of cocaine.”
Timm relies on United States v. Kennedy, 427 F.3d 1136 (8th Cir. 2005), filed after the issuance of the warrant in this case, for the proposition that use of the present tense is insufficient to establish the recency of an informant’s information. In Kennedy, the federal district court rejected the argument that an informant’s use of the present tense was sufficient to establish probable cause for officers to conclude that drugs were currently hidden in Kennedy’s vehicle, stating:
[a]lthough an informant’s use of the present tense is some indication of present probable cause, the ultimate determination does not turn solely upon whether the verbs used by the hearsay informant end in “s” or “ed.” Rather, the question of whether information of an indeterminate recency establishes probable cause that contraband or evidence of a crime will be found in a particular location at a particular time “depends on the circumstances of the case,” including the crime under investigation and the property sought in the search.
In Timm’s case, the application reveals the involvement of two CRIs who both implicate Timm in ongoing drug distribution from a green Cadillac, and the fact that Timm was found with a felony-level amount of a controlled substance in a green Cadillac 12 days before the application for the warrant. The CRI’s use of the present tense is therefore not the only indication that the CRI’s information was not stale.
Timm argues that the district court
also erred by concluding that the CRI’s reliability made the basis of his
knowledge for the current tip irrelevant.
“Recitation of facts establishing a CRI’s reliability by his proven ‘track
record,’ . . . does not by itself establish probable cause.” State
v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) (citing 2
Timm also argues that the
application failed to establish a nexus between the alleged crime and Timm’s
residence, but the nexus was established by Holden’s recited training and past
experience that drug dealers frequently store controlled substances or proceeds
from sales at their residences. “Among
the factors considered in determining whether there is a sufficient showing of
probable cause to believe that items will be found in a particular place are
the type of crime, the nature of the items sought, the extent of the suspect’s
opportunity for concealment, and the normal inferences as to where the suspect
would normally keep the items.” State v. Harris,589 N.W.2d 782, 788 (
Timm cites State v. Kahn, 555 N.W.2d 15, 18 (
Timm argues that his marijuana
possession was too stale to be probative in this case. In determining whether the information
supporting a search warrant is stale, we consider (1) whether there is any
indication of ongoing criminal activity; (2) whether the items sought are
incriminating; (3) whether the property is easily disposable; and (4) whether
the items sought are of enduring utility.
State v. Souto, 578 N.W.2d
744, 750 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.