This opinion will be unpublished and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
Clay Brian Nelson,
Filed October 17, 2006
File No. K4-04-383
Mike Hatch, Attorney General,
Craig S. Nelson, Freeborn
John M. Stuart, State Public
Defender, Rochelle R. Winn, Assistant State Public Defender,
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction of first-degree controlled-substance offense, manufacturing methamphetamine, appellant Clay Nelson argues that the state, relying on a police report, failed to meet its burden of proving the validity of the traffic stop that produced evidence used in obtaining the search warrant for appellant’s residence. Appellant argues that the state failed to rebut the omnibus-hearing testimony of himself and his wife that he committed no traffic violation before the stop. He also argues that the search-warrant application failed to show the basis for a confidential informant’s knowledge and failed to state when he acquired that knowledge, and that the application failed, even when evidence from the traffic stop is considered, to establish probable cause. Because we conclude that the police had a reasonable, articulable basis for the traffic stop and that under the totality of the circumstances, including evidence gained as a result of the stop, probable cause existed to issue the search warrant, the district court did not err in denying the motion to suppress. We also conclude that appellant’s pro se arguments lack merit, and we affirm.
The warrant application referred to
a report from the City of
When the warrant was executed, police found 28 grams of material that later tested positive for methamphetamine, as well as paraphernalia commonly used in the manufacture of methamphetamine by the Nazi, or birch, manufacturing method. Appellant was charged with first-degree controlled-substance crime, methamphetamine manufacture; attempted methamphetamine manufacture; possession of methamphetamine; and illegal possession of an explosive or incendiary device.
At an omnibus hearing, appellant moved to suppress evidence recovered in the search, arguing that the warrant lacked probable cause to form a basis for the search of the residence because the informant did not demonstrate a basis for the knowledge and the information was stale. He also challenged the basis for the traffic stop, arguing that police lacked a reasonable, articulable suspicion to stop his vehicle and that the police report of the stop should not be considered as a basis for probable cause absent testimony from the arresting officer. The district court considered the evidence, including the police report, without supporting testimony and denied the motion to suppress. A motion for reconsideration was also denied.
Appellant waived his right to a jury trial but declined a Lothenbach procedure. After a court trial, the district court convicted appellant of the three methamphetamine-related counts. This appeal follows.
D E C I S I O N
In reviewing pretrial orders on
motions to suppress evidence, this court independently reviews the facts and
determines, as a matter of law, whether the district court erred in
suppressing—or failing to suppress—the evidence. State
v. Harris, 590 N.W.2d 90, 98 (
review the district court’s determination of probable cause to issue a search
warrant to decide whether the issuing judge had a substantial basis to conclude
that probable cause existed. State v. Carter, 697 N.W.2d 199, 205 (
argues that the district court erred in its probable-cause determination by
considering information gained from the traffic stop of his vehicle, which he
maintains was invalid because the police lacked a reasonable, articulable suspicion
for the stop. The district court
considered the legality of the stop for the limited purpose of determining
whether the information gained as a result of the stop could be used to support
a determination of probable cause for the search warrant. See
State v. Hodges, 287 N.W.2d 413, 415–16 (
may perform a limited investigatory stop if an officer has a reasonable,
articulable suspicion of a motor-vehicle violation or criminal activity. State
v. Pike, 551 N.W.2d 919, 921–22 (
argues that the state bears the burden of calling witnesses at the suppression
hearing and that the district court violated appellant’s right to confrontation
by relying on the police report of the stop as a basis for its probable-cause determination. But a district court may consider “reliable
hearsay” in a determination of probable cause.
also challenges the articulated grounds for the stop. The police report specified, as grounds for
the stop, (1) an unidentified Target employee’s report that a person had
purchased “a large amount of pseudoephedrine,” and entered a blue Ford Ranger
with a certain license plate, and left the premises; and (2) the police
officer’s observation that the driver of that vehicle committed a traffic
violation by crossing over the center line and weaving back across the fog
line. We agree with appellant that the
report of the Target employee, taken alone, did not provide reasonable,
articulable suspicion to stop the vehicle.
Appellant cites the omnibus-hearing testimony of appellant and his wife that the car did not cross the center line. But we defer to the credibility determinations of the district court, who found the observation of the police officer, as stated in the police report, to be more credible than the testimony of appellant and his wife. Thus, after the stop was determined to be legal for the purpose of establishing probable cause for the warrant, the evidence gained as a result of the stop—256 tablets of pseudoephedrine—was admissible to support the district court’s determination of probable cause.
Appellant also argues that the warrant application lacked sufficient probable cause because (a) it failed to establish a basis of knowledge for information supplied by a confidential reliable informant and (b) that information was stale. A court considers an informant’s basis of knowledge as a factor in the totality of circumstances when evaluating a probable-cause determination. Wiley, 366 N.W.2d at 268. Here, the supporting affidavit stated that the informant, who had previously provided information to police regarding drug dealing in the Freeborn County area, had made controlled purchases of controlled substances and had specifically provided information about methamphetamine labs where items were recovered showing that methamphetamine had been produced. The affidavit also stated that the informant had received information that appellant was involved in manufacturing methamphetamine at this residence; that another person, Frank Villerreal, was involved; that appellant and Villerreal used this residence because they lived in other residences; and that Villerreal told the informant that they had a safe place to manufacture that did not draw attention to their own residences. The officer signing the affidavit also stated his knowledge that Villerreal had been arrested in the past month for possession of methamphetamine.
the affidavit appears unclear about the informant’s personal basis of knowledge,
the information received from Villerreal may be used to corroborate the
informant’s statement because Villerreal was identified by name and admitted to
determining whether the information supporting a search warrant is stale, this
court examines: (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 (
Appellant argues in a pro se
supplemental brief that he was deprived of the effective assistance of counsel. A party alleging ineffective assistance of
counsel must show that counsel’s performance fell below an objective standard
of reasonableness and that “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Gates v. State, 398 N.W.2d 558, 561 (
Appellant additionally argues that the court ignored his request for a speedy trial. But the record indicates that the district court set a trial schedule based, in part, on the length of time defense counsel anticipated for trial. We also note that after appellant’s attorney moved later for dismissal based on violation of appellant’s right to a speedy trial, trial was held within about two weeks.
Appellant also maintains that the district
court should have released the identity of the confidential reliable
informant. But “[w]hen an informant is a
mere transmitter of information and not a competent witness to or active
participant in the crime, his name need not be disclosed.” Wiley,
366 N.W.2d at 270. Because the record
gives no indication that the informant participated in the crime, the district
court was not required to disclose the informant’s identity.
Appellant also requests a mistrial
based on the district court’s receipt of a letter from the