This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Larry NMN Cregg,
Filed May 29, 2007
Hennepin County District Court
File No. 05028880
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant Public
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction of fifth-degree controlled substance offense, appellant argues that a search warrant, based on reports from anonymous citizens of suspected narcotics trafficking occurring at appellant’s residence, police observation of the reported activity, and a controlled buy at the house, lacked sufficient probable cause when it was executed five days after it was issued. We affirm.
D E C I S I O N
Larry NMN Cregg argues that the district court erred by not suppressing the
evidence seized from his person during execution of the search warrant at his
residence. In reviewing
pretrial orders on motions to suppress evidence, this court may independently
examine the facts and determine whether, as a matter of law, the district court
erred. State v. Stoskopf,644 N.W.2d 842, 844 (
argues that the probable cause to search his residence had grown stale when the
search was executed five days after the warrant was signed. Appellant’s claim requires a two-part
analysis: whether the delay violated the statutes dealing with delays in
executing a search warrant and whether because of the delay probable cause to
search no longer existed when the search was executed. State
v. Yaritz, 287 N.W.2d 13, 15 (
warrant must be executed and returned to the court which issued it within ten
days after its date. After the
expiration of this time, the warrant is void unless previously executed.”
“Whether a delay in executing a
search warrant is unconstitutional depends on whether the probable cause
recited in the affidavit still exists at the time of execution of the warrant—that
is, whether it is still likely that the items sought will be found in the place
to be searched.” Yaritz, 287 N.W.2d at 16.
Factors considered in determining whether it is likely that items sought
will still be found in the place to be searched include: the character of the
crime, character of the criminal, character of the thing to be seized, and character
of the place to be searched.
This case is very similar to State v. King, in which an officer
applied for a warrant to search King’s apartment for narcotics, weapons, and
evidence of drug sales. State v. King, 690 N.W.2d 397, 399
(Minn. App. 2005), review denied (
Here, on May 4, 2005, a police officer applied for a warrant to search appellant’s residence. The district court signed the search warrant on May 5, 2005. On May 10, 2005, police officers executed the search warrant at appellant’s residence. During execution of the search warrant, appellant arrived home and was searched. Officers found a substance in his pant pocket that tested positive for cocaine.
In his search-warrant application, the officer indicated that he received numerous complaints from anonymous citizens who suspected narcotics trafficking occurring at appellant’s residence. The citizens reported observing numerous people come to appellant’s address, enter the rear door, stay for a very short period of time, and then leave the area and not return. The officer set up surveillance on appellant’s residence and observed the activity the citizens reported.
The officer also directed a CRI to purchase narcotics from someone inside appellant’s residence. The controlled buy was set up within 72 hours of the officer applying for the search warrant. The officer searched the CRI and found no contraband, weapons, or currency; gave the CRI pre-recorded money; and instructed the CRI to buy crack cocaine. The officer watched the CRI enter appellant’s residence through the rear door. Minutes later, the CRI returned and produced suspected crack cocaine, which tested positive for cocaine. The CRI was again searched and the officer did not find any contraband, weapons, or currency. The CRI told the officer that appellant approached the CRI and the CRI asked appellant for crack cocaine and appellant handed the CRI crack cocaine in exchange for money. The CRI also reported that appellant rents the basement of the residence to people by the hour or day in order to get high from the narcotics that appellant sells. The CRI positively identified appellant as the individual who sold the crack cocaine.
The search-warrant application, viewed in its entirety, supports probable cause existing five days after the search warrant was issued because like King, the affidavit showed that appellant was in an ongoing business of selling drugs from his residence. 690 N.W.2d at 401. Therefore, it was reasonable to conclude that the probable cause that existed at the time the warrant was issued continued to exist when the warrant was executed. The district court did not err by denying appellant’s motion to suppress.
submitted a pro se supplemental brief that essentially asks us to reweigh witness
credibility. But appellant
had a jury trial and we
leave credibility determinations to the jury.