This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Barry Allan Emerick,


Filed June 17, 1997


Short, Judge

Ramsey County District Court

File No. K5961199

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Douglas W. Thomson, Lisa D. Lodin, Douglas W. Thomson, Ltd., 332 Minnesota Street, Suite W-1260, St. Paul, MN 55101 (for appellant)

Considered and decided by Short, Presiding Judge, Lansing, Judge, and Klaphake, Judge.


SHORT, Judge

A jury convicted Barry Allan Emerick of second-degree unlawful possession of cocaine in violation of Minn. Stat. § 152.022, subd. 2(1), (2). On appeal from the judgment of conviction, Emerick argues the trial court erred in determining probable cause existed to support the magistrate's issuance of a search warrant for Emerick's person and apartment and in refusing to suppress evidence seized in the resultant search. We affirm.


On appeal from a pre-trial suppression decision where the facts are not in dispute, we independently determine whether the evidence requires suppression as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Both the federal and state constitutions guarantee an individual the right to be secure against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art I, § 10. Minnesota law codifies the constitutional requirement that search warrants be issued only for probable cause, and be

supported by affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched.

Minn. Stat. § 626.08 (1996).

Probable cause exists to issue a search warrant when the issuing judge can 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), quoted in State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). The ultimate test is whether the affidavit in question sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search. See State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994) (recognizing that police officers may rely on training and experience to draw inferences in affidavits, but mere suspicion does not equal probable cause); see also Wiley, 366 N.W.2d at 268 (mandating that resolution of doubtful or marginal probable cause cases be "largely determined by the preference to be accorded warrants") (citation omitted).

Emerick argues the trial court erred in concluding probable cause existed to support the police search warrant application and in refusing to suppress evidence of drugs and money obtained during the search of his apartment. However, the record shows the supporting affidavit contained: (1) reports from a confidential reliable informant (CRI) informing police that a person named "Barry" was selling cocaine in a specific apartment and that within the past 72 hours the CRI had witnessed "Barry" complete a cocaine sale in the apartment; (2) the exact address, appearance, and number of the apartment, the apartment's telephone number and the full name of one of the apartment's occupants; (3) statements indicating that police had verified the CRI's information pertaining to the apartment and one of its occupants; (4) a physical description of "Barry"; and (5) statements supporting the CRI's reliability, noting the CRI had previously provided accurate information to the Hennepin County sheriff's office and had made controlled buys for law enforcement officers resulting in the arrests of numerous individuals and at least one conviction for the distribution of controlled substances. Given these facts, there was a fair probability that police would discover contraband or evidence of a crime in Emerick's apartment. Under these circumstances, probable cause existed for the search warrant. Therefore, the trial court properly issued the warrant and refused to suppress evidence seized during the search of the apartment.

Emerick also argues the execution of the search warrant violated his Fourth Amendment rights because the warrant failed to describe Emerick with sufficient particularity, and no one who executed the search had personal knowledge of Emerick's appearance. See, e.g., State v. Siirila, 292 Minn. 1, 11, 193 N.W.2d 467, 474 (1971) (affirming sufficiency of defendant's description in search warrant, and noting issue of sufficient description presents question of fact), cert. denied, 408 U.S. 925 (1972). While the search warrant contained technical errors relating to Emerick's height, weight, and current hairstyle, those errors do not affect the validity of the search warrant for the premises. All of the contraband and money that police seized during the search was from Emerick's apartment, not his person. Therefore, the warrant was sufficiently particular to satisfy the requirements of the state and federal constitutions.