This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1756

State of Minnesota,

Appellant,

vs.

David Bruce Mathisen,

Respondent.

Filed January 21, 1997

Reversed

Kalitowski, Judge

Ramsey County District Court

File No. K196972

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Appellant)

Philip Resnick, 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

KALITOWSKI, Judge

In this pretrial appeal the state argues the district court erred in suppressing evidence obtained by a search warrant it found to lack probable cause. We reverse.

D E C I S I O N

To prevail on a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must clearly and unequivocally establish the trial court's ruling was erroneous and the ruling, unless reversed, will have a critical impact on the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).

The state argues the district court's determination that the search warrant was not supported by probable cause is clearly and unequivocally erroneous. We agree.

Probable cause is determined under a "totality of the circumstances" test:

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 "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 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).

Great deference is given to the issuing judge's determination of probable cause. Wiley, 366 N.W.2d at 268. In Gates, the United States Supreme Court stated:

[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."

Gates, 462 U.S. at 236, 103 S. Ct. at 2331 (citations omitted). A reviewing court is merely to decide "'whether the evidence viewed as a whole provided a "substantial basis" for the Magistrate's finding of probable cause.'" State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989) (quoting Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S. Ct. 2085, 2087-88 (1984)). Further, the Supreme Court has recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of criminal investigation. Technical requirements of elaborate specificity * * * have no proper place in this area." Gates, 462 U.S. at 235, 103 S. Ct. at 2230 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745 (1965)).

"Recital of some of the underlying circumstances in the affidavit is essential" to prevent the court from merely serving as a rubber stamp for the police. Anderson, 439 N.W.2d at 425. But,

[w]here these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical rather than commonsense, manner.

Ventresca, 380 U.S. at 109, 85 S. Ct. at 746. Further,

[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

Id. (citing Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 735 (1960)).

Applying these principles to the present case, we conclude the district court clearly and unequivocally erred in determining probable cause did not exist based on Hankee's affidavit. The affidavit provides a substantial basis for the magistrate's finding of probable cause.

First, the affidavit states that Hankee received information from a confidential informant (CI) that Mathisen had been and was selling cocaine from his residence. While the affidavit did not identify the CI, the affidavit states that Hankee had met with the CI. In State v. McCloskey, 453 N.W.2d 700 (Minn. 1990), the fact that the informant had met with the police officer face-to-face, rather than making an anonymous phone call, was considered to be significant. Id. at 704. Also, like the informant in McCloskey, the CI in the present case has a good reason, fear of retribution, for remaining anonymous. See id. (fear of retribution good reason for wanting anonymity).

Second, the CI was able to describe and identify Mathisen, his car and his residence, and provide Mathisen's address and phone number; all facts subsequently verified by Hankee. While the district court is correct that this "type of information is easily obtained by anyone," this was not the only information relied on by the police.

Third, Hankee is a 17-year veteran of the Ramsey County Sheriff's Department who has "investigated numerous narcotics cases" and "attended numerous federal, state and local schools relating to narcotic investigations." Hankee's affidavit states that the traffic patterns at Mathisen's residence observed by Hankee during his surveillance of the residence, are, based on Hankee's training and experience, "consistent with what is seen at drug traffickers residence when the drug trafficker has drugs for sale from their residence." Police officers' experience, coupled with observations during a surveillance that occurred prior to the issuance of the search warrant, can support a finding of probable cause. Anderson, 439 N.W.2d at 426. We have stated:

Observation of apparently innocent acts "can be significant to a trained officer" and that officer is "entitled to assess probable cause in light of his experience."

Id. (quoting United States v. Carlson, 697 F.2d 231, 238 (8th Cir. 1983)).

Finally, the affidavit contains information regarding a past investigation into the same type of alleged criminal activity by Mathisen. While this information alone would not have been sufficient to establish probable cause, it was appropriately provided as additional corroboration and part of the totality of the circumstances.

These facts, viewed in their totality, coupled with the great deference given to a magistrate's determination of probable cause and the presumption in favor of finding probable cause in marginal cases, establish that the district court clearly and unequivocally erred when it determined that probable cause did not exist based on Hankee's affidavit. Further, because the suppressed evidence is the only evidence the state has against Mathisen, its suppression has a critical impact on the trial.

Reversed.