may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
George (NMN) Dunkins,
Filed August 19, 1997
Ramsey County District Court
File No. K096302
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.
Appellant George Dunkins was convicted of a controlled substance crime in the fifth degree. On appeal, appellant challenges the district court's probable cause determination for the search warrant. We affirm.
Affiant is a Police Officer with the city of St. Paul and has been with the Police dept. for the past nine years. Affiant is assigned to the Force Unit. The Force Unit investigates street level narcotics and crack houses in cooperation with the community and has, in the course of her duties, investigated numerous narcotics offenses.
In the past 24 hours, a CRI (Confidential Reliable Informant) was inside 89 W. County Road C and saw a large amount of controlled substance.
Affiant believes information from the CRI to be reliable because information given by the CRI in the past has led to the recovery of evidence and the arrest and charging of suspects.
When the search warrant was executed, marijuana was found on appellant's premises. Subsequently, appellant was charged with a controlled substance crime in the fifth degree. Minn. Stat. § 152.025, subd. 2(1) (1996). At the omnibus hearing, appellant challenged the issuance of the search warrant for lack of probable cause. The district court upheld the search warrant. After a court trial, appellant was found guilty of the crime charged. Following sentencing, appellant filed a notice of appeal.
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.
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)). On appeal, the reviewing court must give deference to the magistrate's determination of probable cause, and such a determination should be upheld if there was a "substantial basis" for it. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990) (citation omitted). Under the "totality of the circumstances" test, the reviewing court must not view each component of the affidavit in isolation; instead, it must view all the components together. Id.
We hold that when all of the facts set forth in the affidavit are considered together, the affidavit is sufficient to establish probable cause. The affidavit stated that the informant had been at 89 West County Road C in the past 24 hours and had observed a large amount of controlled substance. "Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant's knowledge." Wiley, 366 N.W.2d at 269 (citations omitted). In addition, the affidavit established the reliability of the informant by stating that "information given by the CRI in the past has led to the recovery of evidence and the arrest and charging of suspects." See id. (holding statement that informant "has been used over several years successfully" was sufficient to establish the credibility of the informant). Based on the information provided in the affidavit, and in light of the principle that doubtful or marginal cases should be resolved in favor of the warrants, McCloskey, 453 N.W.2d at 704, we conclude there was probable cause for the issuance of the search warrant.
Appellant's argument that the confidential informant's reliability was questionable because he did not specify the kind of controlled substance he or she saw on appellant's premises is without merit. A more specific description in the affidavit of the controlled substance, i.e., a liquid, powder, pill, vegetable matter, would be helpful in separating facts from legal conclusions. However, the term "controlled substance" includes all substances that are contraband in Minnesota. Furthermore, some persons familiar with illegal drug transactions adopt the name of the offense in their conversations. As the U.S. Supreme Court has stated:
Where 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 a common sense, manner.
United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965).
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.