This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Rick Allen Rochefort,
Filed November 27, 2007
Faribault County District Court
File No. CR-05-36
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Brian D. Roverud, Faribault County Attorney, 412 North Main, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Crippen, Judge.[*]
On appeal from the denial of his postconviction challenge to a first-degree controlled substance conviction, appellant argues that he was denied the effective assistance of counsel when his attorney failed to challenge the legality of a search of appellant’s friend’s residence where police found a methamphetamine-manufacturing operation, the probable cause supporting the search-warrant application, and the nighttime search. We affirm.
Appellant Rick Allen Rochefort challenges the district court’s denial of his petition for postconviction relief based on his contention that he was denied the effective assistance of counsel. A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law; legal conclusions are reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).
A party claiming ineffective assistance of counsel must prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s  errors,” the outcome would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong of Strickland requires that a defendant suffer actual prejudice, which the defendant must prove by a preponderance of the evidence. Pierson v. State,637 N.W.2d 571, 579 (Minn. 2002). When the error is harmless, the defendant cannot satisfy the prejudice prong. McDonough v. State,675 N.W.2d 53, 56 n.4 (Minn. 2004).
Appellant argues that his trial counsel was ineffective because she failed to challenge (1) the legality of the search conducted at his friend’s residence where he had stayed, (2) the probable cause supporting the search-warrant application, and (3) the nighttime-search provision in the warrant. At the postconviction hearing, appellant’s trial counsel conceded that it was a mistake not to challenge the legality of the search. Appellant’s trial counsel’s error may demonstrate representation below an object standard of reasonableness, but appellant must also prove, by a preponderance of the evidence, that but for the error, the outcome would have been different.
To support his argument, appellant claims that he had a reasonable expectation of privacy in the premises searched because he was staying with the home’s resident, George Nichols. The United States and Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A search occurs when a police officer enters an area in which a person has a legitimate expectation of privacy. State v. Carter, 697 N.W.2d 199, 206 (Minn. 2005). An overnight guest may claim protection under the Fourth Amendment. Minnesota v. Carter,525 U.S. 83, 90, 119 S. Ct. 469, 473 (1998). But the Supreme Court has expressly rejected the idea that “anyone legitimately on the premises where a search occurs may challenge its legality.” Id. at 90, 119 S. Ct. at 473.
The record shows that shortly after appellant began staying with Nichols, he was asked to leave because Nichols discovered that appellant was manufacturing methamphetamine in the basement. Appellant left Nichols’ residence several times but always returned; Nichols even changed and added locks, but discovered that the door hinges had been removed and appellant was in his basement. Therefore, appellant would not have legitimatelybeen on the premises when the search occurred and did not have a reasonable expectation of privacy.
Appellant argues that his trial counsel was ineffective by failing to challenge the probable cause supporting the search-warrant application because it was based on information from confidential informants who were not determined to be credible and reliable. “[S]tatements from citizen witnesses . . . may be presumed to be credible.” State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999). Anda citizen informant is presumed reliable. See Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (indicating a tip provided by a private, identifiable citizen is presumed reliable because the informant can be held responsible for the tip). In Yoraway v. Comm’r of Pub. Safety, this court noted that ultimately, reliability depends not only on the informant’s identification, but also on the nature of the information provided. 669 N.W.2d 622, 626 (Minn. App. 2003). This court reiterated that the totality of the circumstances will be considered in determining whether an informant’s tip contains sufficient indicia of reliability. Id.
Here, around the time that appellant began staying with Nichols, officers began receiving reports that there was a lot of traffic and a strong chemical odor coming from Nichols’ residence. On the evening of January 6, 2005, police officers received a call from Nichols’ neighbor who reported going to Nichols’ home and detecting a strong chemical odor. Police officers completed a search-warrant application requesting a nighttime search of Nichols’ residence. The district court signed the search-warrant application around 10:00 p.m., and the warrant was executed that night.
The search-warrant application indicates that a “concerned citizen” reported seeing a lot of late-night activity, noticed a strong chemical smell, and stated that she spoke with neighbors who expressed similar concerns. Officers also received informationfrom a “first-time citizen informant” who reported being at Nichols’ residence and observing what he/she believed to be the methamphetamine-manufacturing process and a white substance he/she believed to be methamphetamine. On the day the search warrant was executed, another “concerned citizen” reported that she went to Nichols’ residence and detected a strong chemical odor, similar to an ammonia smell, which burned her eyes and nose, and noticed a lot of foot traffic at the residence. Three individuals providedsimilar information within three-weeks’ time; under the totality of the circumstances, the information in the search-warrant application supports the finding of probable cause to issue a search warrant.
Finally, appellant argues that his trial counsel was ineffective for not challenging the nighttime-search provision. Before a court issues a warrant for a nighttime search, it must firstdetermine that the search “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. § 626.14 (2006). “[B]efore a nighttime search is authorized , the [search-warrant] application . . . must establish at least a reasonable suspicion that a nighttime search is necessary to preserve evidence or to protect officer or public safety.” State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).
The search-warrant application here provided:
A nighttime search is necessary to prevent the loss, destruction or removal of the objects of the search because: Your Affiant received this information at approx[imately] 7:30pm this evening. Your Affiant through training and experience believes that the suspects will move and get  rid of evidence after the manufacturing process is completed.
The search-warrant application established a reasonable suspicion that a nighttime search was necessary in order to preserve evidence based on the late hour in which the information was received and the officer’s experience in the removal of evidence once the manufacturing process has been completed.
Appellant fails to prove by a preponderance of the evidence that the outcome would have been different had his trial counsel challenged the legality of the search, the probable cause in the search-warrant application, and the nighttime-search provision. Nichols testified that appellant was manufacturing methamphetamine. Nichols’ neighbor testified that when appellant was staying with Nichols, she witnessed a lot of traffic and detected chemical smells. Another witness testified that he visited Nichols’ home and detected the smell of a methamphetamine lab and observed appellant cleaning the lab. Thus, there was sufficient evidence to uphold appellant’s conviction and the district court did not abuse its discretion in denying appellant postconviction relief.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.