may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rene Vela Marichalar,
File No. K196288
Hubert H. Humphrey III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, Suite 101, 223 E. 7th Street, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414; and
Chad M. Oldfather, Special Assistant State Public Defender, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
Appellant Rene Vela Marichalar challenges his conviction of possession of marijuana and related charges. Appellant contends that because the affidavit supporting the search warrant lacked probable cause the district court erred by refusing to suppress all evidence obtained as a result of the search warrant. We affirm.
When reviewing the issuance of a search warrant, we give great deference to the issuing judge's determination of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Pursuant to Minn. Stat. § 626.08 (1996), probable cause, supported by an affidavit, is required to issue a search warrant.
"[T]he test of probable cause is met if the affidavit sets forth competent evidence sufficient to lead a reasonably prudent [person] to believe that there is a basis for the search."
State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970) (quoting State v. Suess, 280 Minn. 308, 312, 159 N.W.2d 180, 182 (1968)). This determination should be made under the "totality of the circumstances" test. Wiley, 366 N.W.2d at 268.
Supporting affidavits must recite some of the underlying circumstances if the court is to be more than just a "rubber stamp for the police." State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989), review denied (Minn. June 21, 1989). Finally, the resolution of doubtful or marginal cases should be "largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965).
Appellant first contends that the police officer's affidavit was based on hearsay evidence from an unreliable informant. We disagree. The informant had been arrested for drug possession and, during the course of a police interview, identified the persons who had supplied him with narcotics, including appellant. Because the informant implicated himself in the purchase and possession of illegal controlled substances, the informant's statement is a statement against penal interest. The fact that the informant made statements against his penal interest has been considered an additional reason for crediting the informant's tip. United States v. Harris, 403 U.S. 573, 583-84, 91 S. Ct. 2075, 2082 (1971).
We also note that this was not an anonymous informant, and further that the informant's name appears on the affidavit, bolstering its credibility. The facts that a large number of suspects were named by the informant during the course of the interview, and he did not have full names for all of the suspects, do not render the search illegal for lack of probable cause. The magistrate based its decision on an affidavit that cited a named informant's sufficiently credible report that contravened his penal interests and named a particular suspect in a particular apartment.
Appellant also contends that there were reckless and/or willful misstatements within the affidavit accompanying the warrant. If appellant proves by a preponderance of the evidence that the affiant knowingly or recklessly included a false statement in the supporting affidavit, the search warrant could be found void and the evidence from the search excluded. State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). Appellant argues that the affidavit contains two recklessly or willfully supplied misstatements: (1) it asserts without evidentiary support that the informant purchased the marijuana at appellant's home; and (2) it references an incorrect apartment number provided by the informant.
Appellant's argument is without merit. Because only one conversation between the informant and the police officer was recorded, the affiant police officer could have learned the specific location of the purchase from an unrecorded conversation. Further, the informant correctly identified appellant's apartment building, and the current apartment number was subsequently supplied by a postal employee. We conclude appellant did not meet his burden to show that the police officer affiant was reckless or willful in any misstatements that may have been made. The district court properly held the affiant did not omit material information from the affidavit, and the affidavit did not lack probable cause.