This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-2019

State of Minnesota,

Respondent,

vs.

Kyle Richard Maki,

Appellant.

St. Louis County District Court

File No. K6-94-300063

Filed June 18, 1996

Affirmed

Toussaint, Chief Judge

Hubert H. Humphrey, III, Attorney General, William F. Klumpp, Jr., Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN (for respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue, Suite 501, Duluth, MN 55802-1298 (for respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Toussaint,Chief Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Kyle Richard Maki challenges his conviction for fifth-degree possession of: (1) marijuana with the intent to sell; (2) psilocin mushrooms and (3) methylphenidate. Maki challenges the validity of the search warrants for his duplex, arguing that the warrants were not supported by probable cause. We affirm.

D E C I S I O N

Maki argues that no probable cause existed to support the warrants to search his duplex because the police first executed a warrant to search the upper residence based on the mistaken belief that Maki resided there; the police obtained the second warrant to search the lower residence only after an upstairs resident informed them that Maki had moved downstairs.

A warrant may be issued only upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or thing to be seized. U.S. Const. amend. IV; Minn. Const. art. I, ' 10. Courts apply a "totality of the circumstances" test to evaluate probable cause challenges to warrants:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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.

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); accord State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). On appeal, this court does not review probable cause determinations de novo. Wiley, 366 N.W.2d at 268. A reviewing court should uphold the issuing judge's determination of probable cause if the issuing judge had a "substantial basis" for concluding that probable cause existed. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. Courts must view the sufficiency of an affidavit as a whole and resolve doubtful or marginal cases "largely * * * by the preference to be accorded warrants." Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S. Ct. 2085, 2087-88 (1984).

Maki contends that the affidavit underlying the original warrant contained stale information, and the second warrant was a product of the first unlawful search. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) (holding that evidence obtained through the exploitation of illegality may not be used against defendant). Probable cause to search cannot be established by stale information. State v. Janetta, 355 N.W.2d 189, 193 (Minn. App. 1984) (citing Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)), review denied (Minn. Jan. 14, 1985). Factors that may be examined in determining whether information is stale include the age of the person giving the information, whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, whether the property sought is easily disposable or transferable, and whether the property would have enduring utility. Id. at 193-94.

In this case, there was evidence of ongoing criminal activity, and the police sought incriminating evidence such as marijuana and drug paraphernalia. The underlying affidavits stated that a confidential reliable informant (CRI) informed Deputy Hanegmon that the CRI's friend bought marijuana from Maki while the CRI remained outside the Maki residence. In 1987, Hanegmon cited Maki for possession of drug paraphernalia, and in 1988, Hanegmon completed a controlled drug purchase from Maki.

Maki argues that the CRI's information was unreliable and stale because Maki had moved downstairs approximately two months before the warrants were issued. Maki's argument is not supported by the record. On the face of the affidavit, no significant time gap exists between the time Hanegmon received the information and application for a warrant. On the day that Hanegmon applied for the warrants, the CRI informed him that a friend had purchased marijuana from Maki within the past 72 hours.

Further, Hanegmon made a reasonable mistake in interpreting the information provided by the CRI. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S. Ct. 2793, 2800 (1990) (holding that factual determinations underlying a warrant must be "reasonable," not necessarily correct). The affidavit states that the CRI described the Maki residence and told Hanegmon that Maki lives with Mehle. But the record does not indicate whether separate entrances or addresses for the duplex are visible. Moreover, Hanegmon's conclusion was consistent with information he received from collateral sources. The record reveals recent traffic citations indicated that Maki had been driving a vehicle registered to Mehle.

A Chisholm Water Department employee informed Hanegmon that Mehle and Mike Clark pay the utilities for the upper residence and suggested that there was a third resident.

The district court determined that any confusion in address is not an important factor because Maki had access to the upstairs residence. While executing the first search warrant, in the upstairs residence the police found personal property belonging to Maki and mail addressed to him. Maki's recent traffic citations and information from the water department also support the district court's finding of accessibility.

Maki also argues that the affidavit was deficient because the CRI received his information through an unidentified friend, and the police performed no independent corroboration linking appellant to any controlled substance crime. Police verification of key details is not necessary where an informant has previously provided the police with reliable information. Wiley, 366 N.W.2d at 269. Here, the police corroboration was sufficient because the affidavit stated that the CRI had provided accurate information in the past, the police independently confirmed the fact that Maki lived in the specified duplex, and the police knew Maki had been involved in drug transactions in 1987 and 1988. See id. at 269 (upholding validity of warrant where affidavit stated that informant had been "used over several years successfully" and police corroborated that a particular woman lived at a certain address and parked her vehicle there); State v. Yaritz, 287 N.W.2d 13, 17 (Minn. 1979) (upholding warrant where underlying affidavit indicated that defendant was named previously as drug supplier, police learned within the last month that he was still dealing, and officer made two controlled purchases from defendant).

Affirmed.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.