This opinion will be unpublished and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
Filed August 7, 2007
Wadena County District Court
File No. K5-03-623
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jon Edin, Wadena County Attorney,
John M. Stuart, Minnesota State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge; Willis, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On November 22, 2003, Lois Nelson met with appellant Frederick Peterson in his garage; Nelson testified that she went to appellant’s residence in order to find her former boyfriend, Jim Grewing, who regularly used methamphetamine. Nelson testified that she had previously used methamphetamine regularly but that she had not used in more than two years. She also testified that based on her prior experiences in seeing the manufacturing process, it looked like appellant “was filtering methamphetamine.” She stated that she talked to appellant about how manufacturing methamphetamine would catch up to him. And Nelson testified that appellant replied that “he plays for life. Or keeps” and that she felt scared; “[appellant] said that—said something about—like a threat to me against my life.” Later that evening, Nelson called law enforcement to report that she believed appellant was filtering methamphetamine inside his garage. At trial, Nelson articulated her reasons for reporting appellant to the police: “For my protection. Plus, to help stop the production of [methamphetamine].”
chief deputy sheriff, Steve Young, interviewed Nelson on November 22, 2003, and
based on the information she provided, Young secured a search warrant for
appellant’s residence and garage. On
November 23, law enforcement executed a search warrant at appellant’s residence
and detached garage, finding items consistent with the manufacture of
methamphetamine and two firearms. In
appellant’s residence, the police found smoking pipes commonly used for
inhaling marijuana or methamphetamine; a receipt from November 1, 2003, for the
purchase of three 48-packs of Sudafed; two Ziploc bags with white powder
residue (which tested positive for methamphetamine); and a .22-caliber
semiautomatic Winchester rifle in the bedroom of appellant’s son. In appellant’s garage, the following was
recovered: Articles consistent with the
manufacture of methamphetamine, including various chemicals, solvents,
glassware, and coffee filters; and a
In an amended complaint, appellant was charged with two counts of first-degree controlled-substance offense, including possession of methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 2(1)(a), 3(b), 609.11, subd. 5 (2002); and manufacture of methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 2a(a), 3, 609.05, 609.11 (2002). Appellant was also charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 609.165, subd. 1b(a) (Supp. 2003). Appellant moved to suppress evidence, arguing that the search warrant was deficient. The district court denied appellant’s motion.
Respondent introduced Spreigl evidence that on January 9, 1998, appellant possessed methamphetamine at his residence and was convicted of felony fifth-degree controlled-substance crime. Additionally, respondent introduced Spreigl evidence of a 2004 incident: As a result of a report from a Wal-Mart employee regarding appellant’s excessive purchases of Sudafed, law enforcement searched appellant’s car and residence, finding numerous items used to manufacture methamphetamine.
After the jury trial, appellant was found guilty of all three counts. The district court sentenced appellant to 86 months for aiding and abetting the manufacture of methamphetamine and to a consecutive 60-month sentence for possession of a firearm by an ineligible person. This appeal follows.
D E C I S I O N
Appellant argues that the
district court erred by approving the search warrant for his residence and
garage because the affidavit in support failed to aver the reliability of the
informant or to corroborate the information provided by the informant. 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 (
A search warrant may be
issued only upon a finding of probable cause by a neutral and detached
The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . 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, appellant challenges the reliability of the informant, arguing that the informant, Nelson, was a member of the criminal sub-culture, rather than a citizen witness, due to the reference made to informant’s past methamphetamine use and exposure to its manufacture.
In a search-warrant
application based on an informant’s tip, the informant must be credible and the
reliability of an informant cannot be assumed.
State v. Siegfried, 274
N.W.2d 113, 114 (
Here, the search warrant was based on recent (within a day), first-hand observations, related by Nelson in a face-to-face interview with Chief Deputy Young. The affidavit asserted that informant Nelson was known to affiant, and Nelson was repeatedly named in the affidavit. In his affidavit, Chief Deputy Young did not specifically describe Nelson as a concerned citizen or a reliable informant. However, the affidavit does state the following: “Affiant is aware that in the past, Lois Nelson used methamphetamine drugs. Affiant is aware that Lois Nelson had been exposed to the processes, equipment, and supplies used in the manufacturing of methamphetamine.” Appellant argues that Nelson’s drug use and familiarity with the manufacturing process render her a member of the criminal sub-culture, and thus her information needs corroborating. However, a reasonable magistrate could perceive these circumstances (her familiarity with the manufacturing process) as having the effect of enhancing her knowledge and therefore her credibility.
There are other
factors that support Nelson’s credibility, such as her motive in reporting
appellant’s activities to the police.
“[A]ny circumstances which suggest the probable absence of any
motivation to falsify and an apparent motive for supplying the information are
relevant facts.” McCloskey, 453 N.W.2d at 704 (citation and quotation
omitted). “Where an informant
voluntarily comes forward (without having first been arrested) to identify a
suspect, and in the absence of a motive to falsify information, the informant’s
credibility is enhanced.” State v. Ward, 580 N.W.2d 67, 71 (
Respondent argues that “[i]t is this
threat of criminal or other sanctions that affords [Nelson] more credibility
than an informant providing the information anonymously without the possibility
of any recourse by law enforcement.” See State v. Lindquist, 295 Minn. 398,
400, 205 N.W.2d 333, 335 (1973) (“One who voluntarily comes forward and
identifies herself is more likely to be telling the truth because she
presumably knows that the police could arrest her for making a false
Appellant argues that there
was not sufficient corroboration of Nelson’s statements to bolster her
credibility as an informant; he relies on State
v. Gabbert, 411 N.W.2d 209 (
Assuming, without deciding,
that corroboration was required here, the affiant was able to corroborate some
information, such as details concerning the location of appellant’s residence,
including the fact that there was a house and an unattached garage on the
property. “[C]orroboration of even minor
details can ‘lend credence’ to the informant’s information where the police
know the identity of the informant.” State v. Ward, 580 N.W.2d 67, 71 (
In viewing the totality of
the circumstances, the district court’s decision to issue the warrant was
supported by probable cause: Nelson cannot
really be called a member of the criminal subculture; Nelson did not have to go
to the police, i.e., she was not receiving any kind of benefit from this;
Nelson stated that she was reporting appellant because she felt threatened;
Nelson was not anonymous and was named in the warrant (which means that
retaliation is a factor and also that she could be subject to false reporting
of a crime); Nelson knew what manufacturing meth looked like; and Nelson
observed appellant’s activities first-hand the day before her interview (close
in time). See McCloskey, 453 N.W.2d at 704 (citing United States v. Ventresca, 380
that the district court erred under Minn. Stat. § 609.165, subd. 1b (Supp.
2003), by determining that appellant was subject to a firearm restriction due
to a prior felony drug conviction.
Appellant argues that the conviction was later converted to a
misdemeanor drug conviction. Statutory construction is a
question of law, which this court reviews de novo. State v.
Stewart, 624 N.W.2d 585, 588 (
Appellant was convicted of being a felon in possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b, which provides: “Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony . . . .” (Emphasis added.) A “crime of violence” includes violations of “chapter 152 (drugs, controlled substances).” Minn. Stat. § 624.712, subd. 5 (Supp. 2003).
In 1998, appellant was convicted of a felony fifth-degree controlled-substance crime. Appellant successfully completed his probation and was discharged on July 11, 2000. The discharge order deems the offense, once discharged successfully from probation, a misdemeanor pursuant to Minn. Stat. § 609.13. The order also tells appellant not to “ship, transport, possess, or receive a firearm until 10 years have elapsed since you have been restored to civil rights and during that time you are not to have been convicted of any other crimes of violence.” Appellant failed to follow the discharge order, as law enforcement found two firearms on his property on November 23, 2003. Appellant was then charged and convicted of ineligible person in possession of firearms (based upon his 1998 “crime of violence” conviction), in violation of Minn. Stat. § 609.165, subd. 1b(a).
Appellant argues that in
1998 he did not commit a “crime of violence” for purposes of Minn. Stat.
609.165, subd. 1b, because the definition is limited to felony
convictions. Appellant claims that his
conviction was not a “felony conviction,” because his drug conviction was later
deemed a misdemeanor. This court
has already decided this issue in State
v. Anderson, which rejected the argument that appellant makes here. 720 N.W.2d 854 (
This court determined
[T]he statute proscribes possession of firearms by “[a]ny person who has been convicted of a crime of violence,” including a felony conviction of second-degree burglary. Here, appellant “has been convicted” of felony second-degree burglary. His conviction was later deemed a misdemeanor, but that does not change his underlying conviction for the purposes of the statute.
[i]f the legislature intended to override Moon, it could have included a provision in its 2003 amendments to expressly indicate that it did not intend for those convicted of felonies which are later deemed to be misdemeanors to be prohibited from possessing firearms. In light of the supreme court’s holding in Moon, and the plain language and purpose of the firearm prohibition statute, we conclude that appellant was subject to prosecution under the statute.
acknowledges that his argument was rejected by the
The district court did not err when issuing the warrant. The district court properly applied the firearm prohibition statute.
 In 2003, the Minnesota Legislature amended
Minn. Stat. § 624.712, subd. 5 (2002).