This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



Curtis James Jones,


Filed May 27, 1997


Mulally, Judge


Hennepin County District Court

File No. 9576963

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

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Barry V. Voss, Timothy J. Hickman, Voss & Hickman, P.A., Suite 840, 527 Marquette Avenue South, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mulally, Judge.



Appellant Curtis Jones challenges the district court's denial of his motion to suppress evidence obtained during the execution of a search warrant and statements he made after being arrested. Jones argues (1) the search warrant was not supported by probable cause and, (2) because the police did not tape record his statements, the statements should be suppressed. We affirm.



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)). "The court must make an assessment of the probability that contraband might be located based on the totality of the evidence." Id.

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Gates, 462 U.S. at 231-32, 103 S. Ct. at 2328-29 (citations omitted). The Supreme Court also 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." Id. at 235, 103 S. Ct. at 2230 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745 (1965)).

However, this does not mean that probable cause can be established by affidavits that are purely conclusory, "stating only the affiant's or an informer's belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based." Anderson, 439 N.W.2d at 425. "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. Id. 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. Furthermore, the Supreme Court has stated:

Although 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)).

Jones claims the informant's credibility was not established by the police. To support his claim, Jones cites this court's opinion in State v. Albrecht, 465 N.W.2d 107 (Minn. App. 1991). Jones's reliance on Albrecht is misplaced. In that case, the informant was an anonymous phone caller. Id. at 109. In such a case, the necessity of requiring that the informer provide the police with more than easily obtained facts, such as the alleged drug dealer's description, residence, and automobile make and model, is apparent.

Here, however, the police received information from an informant who had "given information to police officers that has proven to be accurate and reliable and has been used in the furtherance of narcotics investigations." While the affiant police officer had not personally worked with the informant in the past, the officer was aware that other police officers had previously used the informant. Further, the informant "provided no information that [the police officer] has found to be false."

In State v. McCloskey, 453 N.W.2d 700 (Minn. 1990), the fact that the informant met with the police officer face-to-face, rather than making an anonymous phone call, was considered significant. Id. at 704. Further, in Wiley, in finding an affidavit was sufficient to establish probable cause, the supreme court stated:

The affidavit also stated that the informant "has been used over several years successfully." Interpreted in a practical, commonsense manner, this language indicates that the informant had provided accurate information to the police in the past. The magistrate, presented with this language, would know that a police officer who had used an informant in the past "successfully" would have found the informant to have provided reliable information.

Wiley, 366 N.W.2d at 269. Stated another way, an informant's credibility can be established "by showing that the informant has a track record, e.g., by showing that in the past the information he has given the police has been accurate." State v. Siegfried, 274 N.W.2d 113, 114-15 (Minn. 1978).

These cases, 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, support the district court's determination that the police officer's affidavit established probable cause.


In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the supreme court stated:

[I]n the exercise of supervisory power to insure the fair administration of justice, we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.

Id. at 592 (emphasis added) (footnote omitted).

Here, the district court found that it was feasible to record Jones's statements. According to the court, "where officers know in advance that they may or may not be taking statements, * * * it is feasible to have provision for recording." The district court's factual findings are subject to a clearly erroneous standard. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996).

While we cannot say, as a factual determination, that the district court is clearly erroneous, we do question this finding. The arresting police officer did not have a tape recorder on his person or in his car, and he did not know if any other officer had one. As such, it appears that it was physically impossible for the police officer to tape record Jones's statements. Whether it is feasible for police officers routinely to carry tape recorders when they may have to record statements is a question different from whether it was feasible, under the circumstances, to make a recording in this case. The former is a legal question while the latter is a factual one.

As a legal matter, the supreme court has not mandated that police officers carry tape recorders, but rather that they record "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning * * * where feasible." Scales, 518 N.W.2d at 592 (emphasis added). What the supreme court meant when it said, "where feasible," is not entirely clear. The district court's logic would appear to require police officers to carry tape recorders with them at all times. Police officers know that they "may or may not be taking statements" whenever they work. At any time during a traffic stop, domestic disturbance call, or bar fight, a police officer may arrest an individual, thereby precipitating a reading of the individual's rights. The supreme court explicitly required recording at a detention center and, arguably, could have required recording in the field if it so desired. While there may be policy reasons for requiring recording in the field, because the court of appeals lacks the supervisory powers of the supreme court, this is a decision best left to the supreme court. See State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995) (supervisory powers reserved to supreme court).

Even though the district court found that the police did not record a defendant's statements where it was feasible, the court determined suppression was not required because the recording violation was not substantial. While the district court's factual findings are subject to the clearly erroneous standard, "the question whether there was a `substantial violation' of Scales is a legal [question] that this court reviews de novo." Critt, 554 N.W.2d at 95.

In Scales, the supreme court stated:

If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed "substantial." This determination is to be made by the trial court by considering all relevant circumstances bearing on substantiality, including those set forth in § 150.3 (2) and (3) of the Model Code of Pre-Arraignment Procedure.

Scales, 518 N.W.2d at 592 (footnote omitted). The nonexclusive list of factors from the Model Code includes the willfulness of the violation, the extent of the deviation from lawful conduct, the extent to which the violation was likely to lead to a misunderstanding of legal rights, and the extent to which suppressing the statement would tend to prevent other violations. Critt, 554 N.W.2d at 95 (citing Scales, 518 N.W.2d at 592 n.5).

Here, considering the factors presented above, we conclude the possible recording violation was not substantial. The police officer did not willfully violate a legal standard because, currently, while there is a detention center recording requirement, there is not a field recording requirement. As such, there is not a standard from which to deviate. In addition, the possible violation does not appear to be "likely to lead to a misunderstanding of legal rights." Accordingly, we conclude the district court was correct in not suppressing the defendant's statements.


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