This opinion will be unpublished and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
John Benjamin Amble, III,
Filed August 21, 2007
Mille Lacs County District Court
File No. 48-CR-05-1017
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Janice S. Kolb, Mille Lacs County Attorney, Christopher Zipko, Assistant County Attorney, Courthouse Square, 525 Second Street SE, Milaca, MN 56353 (for respondent)
Stefan A. Tolin, 845 Rand Tower,
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction for second-degree controlled substance crime, arguing that there was no probable cause to issue a search warrant because the search-warrant application contained an intentional misrepresentation that an informant was a first-time citizen informant and the information in the application was stale. Appellant also argues that he was entitled to disclosure of the informant’s identity. We affirm.
D E C I S I O N
Appellant John Benjamin Amble, III argues
that the district court erred by not suppressing the evidence seized because
the search warrant lacked probable cause.
“When reviewing pretrial orders on motions to suppress evidence, [this
court] 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 (
This court reviews the district
court’s determination of probable cause to issue a search warrant to decide “whether
the issuing judge had a substantial basis for concluding that probable cause
existed.” State v. Rochefort,631 N.W.2d 802, 804 (
Here, an investigator was approached by an individual who provided his/her real name and date of birth. The individual had never done informant work and was not given consideration for the information he/she provided. The informant reported that within the past 30 days, he/she observed large amounts of marijuana, pills, and cash in a small safe hidden under a couch in appellant’s living room. The informant also told the investigator that appellant is involved in the sale and distribution of marijuana and prescription pills. Additionally, the informant stated that appellant drives a red Mercedes Benz, goes to the cities once a week to pick up marijuana, conceals the marijuana in a blue bag with white writing, and sells a quarter ounce of marijuana for $40.
The investigator verified appellant’s address and vehicle. The investigator also observed appellant driving his car southbound toward the cities. Additionally, the investigator learned that approximately 18 months earlier, officers searched appellant’s residence and vehicle and found, among other things, a loaded shotgun, marijuana pipes, a scale, and plastic baggies containing marijuana. The investigator ran a criminal-history check and learned that appellant had a felony drug conviction.
The investigator executed the search warrant after observing appellant in a parking lot moving items from inside his car to the trunk. While searching appellant, the investigator found white tablets that appellant stated were Percocet. The investigator also found a blue bag that held, among other things, one-half ounce of marijuana and approximately 45 white tablets. The investigator recovered 125 Percocet tablets.
argues that the district court erred in determining that the investigator did
not make an intentional or reckless material misrepresentation in the
search-warrant application by characterizing the informant as a first-time
citizen informant when this individual had a criminal history. Although we normally presume the validity
of an affidavit supporting an otherwise valid search warrant, “this presumption
is overcome when the affidavit is shown to be
the product of deliberate falsehood or reckless disregard for the truth.” State
v. McGrath, 706 N.W.2d 532, 540 (Minn. App. 2005) (citing Franks v. Delaware, 438
“[S]tatements from citizen witnesses, as opposed to criminal
informants, may be presumed to be credible.”
State v. Harris, 589
N.W.2d 782, 789 (
The search-warrant application here provided that the informant was fully identified by name and date of birth, that this was an “arrested individual,” and a “first time citizen informant” with first-hand knowledge regarding appellant. The investigator also indicated that the informant was not receiving any consideration and that he knew that the informant had been charged with controlled-substances crimes. During the omnibus hearing, the investigator testified that he described the informant as a first-time citizen informant because it was the first time this person provided information for no consideration and that he had not been trained that an individual with a controlled-substance arrest or conviction cannot be characterized as a first-time citizen informant. Thus, although the investigator characterized the informant as a first-time citizen informant, the fact that this individual was “an arrested individual” who had been charged in the past with controlled-substance crimes, was included in the search-warrant application. Further, the investigator corroborated the information by verifying appellant’s address and vehicle description, observing appellant driving toward the cities, and observing individuals enter appellant’s home and stay only for a short time. The district court did not err in finding that the search-warrant application did not contain a material misrepresentation.
Appellant also argues that the
informant was not reliable. When
determining whether a confidential informant’s tip provided probable cause to
arrest or search, we consider the totality of the circumstances, including the informant’s
basis of knowledge, veracity, and reliability.
N.W.2d at 71. “[A] deficiency in one may
be compensated for, in determining the overall reliability of a tip, by a
strong showing as to the other, or by some other indicia of reliability.” Gates, 462
Here, the investigator corroborated information from the informant. Additionally, the informant voluntarily came forward and was not given any consideration. Finally, the investigator knew the informant’s identity and the informant could have faced consequences for providing false information. The district court did not err in determining that the informant was reliable.
Appellant also argues that the
district court should have suppressed the evidence because the information in
the search-warrant application was stale.
In determining whether the information supporting a search warrant
is stale, this court examines whether there is “any
indication of ongoing criminal activity, whether the articles sought are innocuous
or incriminating, whether the property sought is easily disposable or
transferable, and whether the items sought are of enduring utility.” State v. Souto,578 N.W.2d 744, 750 (
The district court found that the information in the warrant was not stale because the facts indicated that appellant was involved in ongoing criminal activity. The informant stated that appellant was involved in the sale and distribution of controlled substances; within the past 30 days he/she observed large amounts of marijuana, pills, and cash in a safe in appellant’s living room; and appellant travels to the cities weekly to pick up marijuana. The investigator testified that he stated in the search-warrant application that he learned this information “within the previous 20 days” because the informant did not want his/her identity known for fear of retaliation. Additionally, the investigator had information that marijuana was found in appellant’s possession approximately 18 months earlier, and appellant has prior drug convictions. The district court did not err in determining that the information in the search-warrant application was not stale.
Finally, appellant argues that
the district court should have ordered the state to disclose the informant’s
identity. The district court has
discretion to order the disclosure of an informant’s identity and this court
will not reverse that decision absent an abuse of discretion. State