This opinion will be unpublished and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

C7-95-2221

State of Minnesota,

Respondent,

vs.

Michael Laverne Reese,

Appellant.

Filed October 1, 1996

Affirmed

Peterson, Judge

Freeborn County District Court

File No. K994893

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Thoreen, Judge.[*]

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

PETERSON, Judge

On appeal from a conviction for fifth-degree controlled substance crime, appellant argues that (1) evidence seized during a search of his home should have been suppressed because the search warrant was not supported by probable cause; (2) the evidence was insufficient to support his conviction; and (3) charges of second-degree and third-degree controlled substance crime should have been dismissed for lack of probable cause and not submitted to the jury. We affirm.

FACTS

During the afternoon of February 10, 1994, narcotics officers Mark Harig, Eugene Arnold, and Spencer Osterberg conducted surveillance of the house in which Susan Cornwell and Richard Christenson resided. The officers saw appellant Michael Reese arrive at the house, enter it, and leave about 11 minutes later. About 19 minutes after Reese left, the officers executed a search warrant for narcotics at the Cornwell/Christenson residence.

When officer Osterberg found a plastic baggie containing seven bindles of cocaine in Christenson's jacket pocket, Christenson said:

What did you do -- send Reese in here with it. That was really neat. I knew he was a narc. Everyone's talking about how you're getting information and he's never charged.

After being read the search warrant and being advised of his Miranda[1] rights, Christenson stated that he never had any cocaine in his jacket before Reese came to the house.

Within two weeks before the Cornwell/Christenson residence was searched, Arnold had talked to a confidential informant (CI), who said that Reese had been talking about moving cocaine and about other persons being interested in buying cocaine from him. Arnold had known the CI for the previous five years. On two occasions, the CI had provided information that resulted in two persons being arrested for felony narcotics offenses. The arrests resulted in felony convictions. Officers also had received information that Reese was known to carry weapons.

Harig prepared an affidavit setting forth the above facts. A search warrant for Reese's residence was issued. The search warrant authorized a nighttime search and an unannounced entry.

Shortly after 7:00 p.m. on February 10, 1994, Harig, Arnold, Osterberg, and about five other officers executed the search warrant at Reese's residence. The items seized from Reese's residence included a large dinner plate; a folded piece of paper lying near the dinner plate; an envelope with white powder on it; a small vial with a little plastic funnel in the top of it; a handwritten note signed by Christenson; a ledger and notebooks with names in them; mail addressed to Reese; and other documents with Reese's name on them.

Harig testified that generally a plate or mirror is used to divide powder cocaine for packaging. There was white powder on the plate seized from Reese's residence but not enough to analyze.

The cocaine seized from Christenson's jacket was packaged in bindles. Harig testified that a bindle is a paper folded in a way that it will not spill its contents even when held upside down. The folded piece of paper seized from Reese's residence was about the same size as the bindles seized from Christenson's jacket. There was no powder on the folded piece of paper.

The Bureau of Criminal Apprehension analyzed the white powder from the envelope and concluded it was cocaine. Reese claims officers found the envelope in a stack with other papers and envelopes. But Harig testified that the envelope was with two smaller envelopes on an entertainment center. The smaller envelopes were either inside or underneath the envelope with cocaine. The envelopes were lying near the note from Christenson.

Harig testified that the funnel and vial seized from Reese's residence can be used for packaging cocaine. Harig admitted there must be legitimate uses for the vial and funnel, but he did not know of any uses other than packaging cocaine.

A jury convicted Reese of one count of fifth-degree controlled substance crime involving possession of a controlled substance. The jury found him not guilty on charges of second-degree and third-degree controlled substance crime.

D E C I S I O N

1. The state argues Reese waived his right to raise on appeal the issues of probable cause and the propriety of an unannounced, nighttime entry. This court generally will only decide issues that were addressed by the district court. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Reese challenged the legality of the search warrant and the search before the district court. The district court found that probable cause existed to issue the search warrant, the search warrant was adequate, and the search was properly executed. Because the district court addressed these issues, we will consider Reese's arguments on appeal.

Evidence obtained by a search and seizure that violates a defendant's constitutional rights is inadmissible. State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978). Both the United States and Minnesota Constitutions require the existence of probable cause for a search warrant to be issued. Id.

"The reviewing court must give deference to the magistrate's determination of probable cause * * *." State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991). The Supreme Court has adopted a totality of the circumstances test to determine whether there is probable cause to issue a search warrant. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983).

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.

Id. at 238, 103 S. Ct. at 2332. In interpreting the state Constitution, Minnesota courts have used the same test. Albrecht, 465 N.W.2d at 108. In reviewing the sufficiency of the affidavit under a totality of the circumstances test, a court must review the affidavit as a whole, not each component in isolation. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).

In this case, shortly before executing the search warrant at the Cornwell/Christenson residence, officers observed Reese arrive at the Cornwell/Christenson residence, enter it, and leave a few minutes later. When Osterberg found the cocaine in Christenson's jacket pocket, Christenson said Reese was a narc and accused police of sending Reese in with the cocaine. Christenson also stated that he did not have cocaine in his jacket before Reese came to the house. Christenson's statements indicate Reese brought the cocaine to the Cornwell/Christenson residence. The statements were sufficiently reliable to permit the magistrate to find them credible. C.f. Dutton v. Evans, 400 U.S. 74, 77, 88-89, 91 S. Ct. 210, 214, 219-20 (1970) (coconspirator's statement identifying defendant as participant in crime had indicia of reliability because it was spontaneous and against penal interest).

In addition to Christenson's statements, during the two weeks before police searched the Cornwell/Christenson residence, Arnold had received information from a CI that Reese had been talking about moving cocaine and about other persons being interested in buying cocaine from him. The fact that Arnold had known the CI for five years and the CI had provided Arnold with information leading to two felony convictions establishes the CI's reliability. See Wiley, 366 N.W.2d at 269 (information that CI had provided reliable tips in the past gave magistrate reason to credit CI's story). Taken together, the officers' observation of Reese's visit to the Cornwell/Christenson residence, Christenson's statements, and the information provided by the CI were sufficient to establish probable cause that Reese was involved in cocaine trafficking.

The absence of evidence that Reese conducted cocaine trafficking activities from somewhere other than his residence established probable cause that cocaine would be found at his residence. See Novak v. State, 349 N.W.2d 830, 832-33 (Minn. 1984) (probable cause existed that marijuana would be found at drug trafficker's residence when no information suggested he conducted drug business from somewhere else).

Reese argues that the affidavit supporting the search warrant application did not justify an unannounced entry because the affidavit did not expressly state Reese was selling illegal drugs or using his residence as an outlet for illegal drug sales. The existence of probable cause that Reese was conducting cocaine trafficking activities from his residence justified an unannounced entry. See State v. Ailport, 412 N.W.2d 35,38 (Minn. App. 1987) (when residence is being used as outlet for drug business, unannounced entry should be allowed), review denied (Minn. Nov. 18, 1987). The information that Reese was known to carry weapons also justified the unannounced entry. See id. (unannounced entry permitted when announced entry would result in danger to officers).

Reese also argues that a nighttime entry was not justified. See Minn. Stat. § 626.14 (1992) (search warrant may be executed only between 7:00 a.m. and 8:00 p.m. unless "a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public"). Because the officers executed the search warrant at Reese's residence shortly after 7:00 p.m., any violation of Minn. Stat. § 626.14, was only a technical violation. When there is only a technical violation of Minn. Stat. § 626.14, suppression of the evidence is not required. See State v. Lien, 265 N.W.2d 833, 841 (Minn. 1978) (when police executed search warrant at reasonable hour when most people are still awake, there was only a technical violation of Minn. Stat. § 626.14 and suppression of evidence was not required).

2. When the sufficiency of the evidence is challenged, this court must review

the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Minn. Stat. § 152.025, subd. 2(1) (1992), provides that a person is guilty of fifth- degree controlled substance crime if "the person unlawfully possesses one or more mixtures containing a controlled substance." To convict a person of unlawful possession of a controlled substance, the state must prove the defendant consciously possessed the substance and had actual knowledge of the nature of the substance. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).

Reese argues the state failed to prove possession. The state may prove possession by showing actual, physical, or constructive possession. Id., 226 N.W. 2d at 610. To show constructive possession, the state must prove

(a) that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.

Id. at 105, 226 N.W.2d at 611.

Here, officers found an envelope containing cocaine on Reese's entertainment center. Harig testified that the envelope was with two smaller envelopes, which were either inside or underneath the envelope with cocaine. The envelopes were lying near the note from Christenson. Reese does not contend that anyone else had control over or access to his entertainment center or that anyone else lived in his residence. The evidence was sufficient to show constructive possession. See State v. Colsch, 284 N.W.2d 839, 840, 841 (Minn. 1979) (defendant constructively possessed narcotics found, along with a checkbook bearing his name, in bedroom in mobile home where defendant lived with another person); State v. Mollberg, 310 Minn. 376, 390, 246 N.W.2d 463, 472 (1976) (defendant constructively possessed marijuana found in bedroom along with letters addressed to defendant and the front end of defendant's motorcycle).

Reese also argues the evidence was insufficient to show he had actual knowledge of the nature of the substance. "Knowledge * * * usually must be inferred from the evidence.". State v. Mattson, 359 N.W.2d 616, 617 (Minn. 1984).

[I]f defendant consciously possessed the [controlled] substance, either constructively or physically, then the [factfinder] could easily infer from that and from the nature of the substance that defendant had knowledge of the substance's nature.

Florine, 303 Minn. at 104, 226 N.W.2d at 610.

In addition to the envelope containing cocaine, officers found several items that can be used for packaging cocaine in Reese's residence: a dinner plate with white powder on it; a folded piece of paper, which was lying near the plate and was the same size as the bindles found in Christenson's jacket; and a small vial with a plastic funnel on top of it. Also, Officers Harig, Osterberg, and Arnold testified about Christenson's statements indicating that Reese brought the cocaine to the Cornwell/Christenson residence. The evidence was sufficient to show knowledge.

Finally, Reese argues that a trace amount of cocaine is insufficient to support a conviction for fifth-degree controlled substance crime. We disagree. Minn. Stat. § 152.025, subd. 2(1), does not specify a minimum amount of cocaine that must be present to support a conviction for fifth-degree controlled substance crime. See also State v. Siirila, 292 Minn. 1, 4-10, 193 N.W.2d 467, 470-473 (1971) (concluding that earlier cases, which held that possession of an unusable quantity of a controlled substance was not a crime, were wrongly decided and adopting view that "possession of any quantity of a proscribed drug constitutes a crime"), cert. denied, 408 U.S. 925 (1972).

3. Reese argues that the evidence about the events that occurred at the Cornwell/Christenson residence was inadmissible because it was relevant only to the charges of second-degree and third-degree controlled substance crime, and those charges should have been dismissed for lack of probable cause. But evidence of other crimes is admissible when it tends to prove an element of the charged offense and it was part of the immediate incident out of which the charged offense arose. See State v. Leecy, 294 N.W.2d 280, 281-82 (Minn. 1980) (defendant's threats against store customer earlier in the evening admissible to show defendant intended to assault customer that he attacked later in the evening; earlier threats were part of immediate episode out of which charges arose); see also State v. Mosby, 450 N.W.2d 629, 632-33 (Minn. App. 1990) (in prosecution for criminal sexual conduct, trial court properly admitted evidence that defendant attempted to steal a car in which to flee because flight suggests consciousness of guilt; attempted theft intimately connected with crime), review denied (Minn. Mar. 16, 1990).

Here, police observed Reese visit the Cornwell/Christenson residence. A short time later, police searched the Cornwell/Christenson residence and found cocaine in Christenson's jacket. Christenson accused Reese of bringing the cocaine to the Cornwell/Christenson residence. Christenson's statements tended to prove Reese had actual knowledge that the powder on the envelope was cocaine. Knowledge of the nature of the substance is an element of unlawful possession of a controlled substance. Florine, 303 Minn. at 104, 226 N.W.2d at 610. The events at the Cornwell/Christenson residence and the fifth-degree controlled substance crime arose out of the same immediate incident. Reese's visit and Christenson's statements led police to find cocaine in Reese's residence. The evidence about the events at the Cornwell/Christenson residence was, thus, admissible in the prosecution for fifth-degree controlled substance crime. Because the evidence was admissible in the prosecution for fifth-degree controlled substance crime, we do not address whether the remaining charges should have been dismissed for lack of probable cause.

We have considered the arguments raised by Reese in his pro se brief and find them to be unpersuasive.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1Miranda v. Arizona, 384 U.S. 436, 478-79, 86 St. Ct. 1602, 1630 (1966).