Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joseph Michael Patnode,
Filed March 10, 1998
File No. K5-96-133
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)
Hubert H. Humphrey, III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul., MN 55101-2128 (for respondent)
Donald H. Spartz, Le Sueur County Attorney, P.O. Box 10, Le Center, MN 56057 (for respondent)
Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.
Appellant Joseph Michael Patnode appeals from a judgment of conviction for fifth-degree controlled substance crime, challenging the district court's denial of his motion to suppress. He argues that the warrant to search his home was not supported by probable cause. We affirm.
On February 26, the female bought 400 tablets at Drug Express and also inquired about purchasing a case of tablets. The employees noted that she did not comment or otherwise react to that day's price increase of $5 per container. When she left the store, the employees saw her get into a vehicle with a white male. A check of the license showed that the vehicle was owned by Patnode, who is a white male.
February 27, 1996, the male visited Drug Express to buy a case of the tablets. The store did not have an entire case, but offered to order one. The male stated that his wife had placed an order the day before. When the male left, a Drug Express employee contacted the police. Within ten minutes, a police officer saw Patnode's vehicle behind a hardware store. Hardware store employees stated that Patnode had purchased four quarts of denatured alcohol.
Gliszinski spoke with U.S. Drug Enforcement Administration (DEA) personnel and learned that people who purchase large quantities of pseudoephedrine hydrochloride often are involved in producing methamphetamines. Production by the so-called "cold method" includes combining denatured alcohol with pseudoephedrine hydrochloride.
Also on February 27, 1996, Gliszinski spoke with an informant at the New Prague high school. The informant told Gliszinski that one person had said that Tammy Jones was living with Patnode on Highway 13 and that his friends had purchased crystal methamphetamine there within the last two weeks. Another person had said that Jones' relatives were concerned that Jones was selling drugs from her residence on Highway 13 and that Jones was from California.
Police checked Jones' records in California and found that she had been arrested on drug charges and that there was a warrant out for her arrest. Police called Patnode's residence on Highway 13 and asked if Tammy Jones lived there. Patnode answered the phone and replied, "Yes."
Gliszinski and Police Chief Dennis Rolhoff had been gathering intelligence on Patnode for ten years. They had learned that he was a member of the B.P.M. motorcycle group, which they associated with the distribution of methamphetamines. Their investigation also showed that Patnode has been involved in the distribution of methamphetamines and the possession of semi-automatic weapons.
On February 27, based on this information, a judge issued a warrant to search Patnode's house. That evening, police searched the residence. They found controlled substances and charged Patnode with controlled substance crime in the fifth-degree in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). On July 16, 1996, the complaint was amended, adding one count of fourth-degree controlled substance crime in violation of Minn. Stat. § 152.024, subd. 2(2) (1996).
Patnode unsuccessfully moved to suppress the evidence obtained in the search on the ground that the warrant was not supported by probable cause. The district court found that the affidavit set forth specific information from reliable sources demonstrating a reasonable suspicion that Patnode possessed controlled substances.
Patnode waived his right to a jury trial and submitted the case on an amended complaint charging only fifth-degree controlled substance crime in violation of Minn. Stat. § 152.025, subd. 2(1), and based on stipulated facts. The district court found Patnode guilty and granted him a conditional stay of imposition of sentence. Patnode appeals the denial of his motion to suppress.
A search warrant cannot be issued but upon probable cause, 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). "The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist." Minn. Stat. § 626.10 (1996).
To decide if a search warrant is supported by probable cause, the court looks at the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). The issuing judge
is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis 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.
Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). Probable cause decisions are given great deference and are not reviewed de novo. Id. We will uphold the issuing judge's decision as long as there was a substantial basis for finding probable cause. Id.; State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). Marginal cases normally are decided according to the preference accorded to warrants. Id. at 704. We view the components of the affidavit in their totality, not individually. Id. at 703.
We agree with the district court that the affidavit sufficiently showed probable cause to search Patnode's house. Patnode argued that the issuing judge had no information on which to determine reliability of the high school informants because they were not identified, the police did not conduct any surveillance to confirm their reliability, and the information was obtained through double and triple hearsay. Patnode asserts that there is no probable cause linking him or his residence to criminal activity.
An affidavit supporting a warrant application, however, may be based on hearsay. Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964); State v. DeSchoatz, 280 Minn. 3, 10, 157 N.W.2d 517, 523 (1968). The issuing judge must consider the "veracity" and "basis of knowledge" of the person supplying hearsay information. Zanter, 535 N.W.2d at 633.
The reliability of informants can be established through independent police corroboration. State v. Wiberg, 296 N.W.2d 388, 396 (Minn. 1980). Here, police (1) checked the license number of the vehicle reported by the Drug Express employees and learned that it was owned by appellant, (2) talked to a hardware store employee about what appellant had purchased, (3) called the DEA about the large quantity of drugs and chemicals that Patnode and Jones had purchased, (4) checked Jones' California police record, and (5) called Patnode's residence to verify that Jones lived there. In addition, the police also had evidence of Patnode's reputation as a member of a motorcycle group that they associated with the distribution of controlled substances. See State v. Nolting, 312 Minn. 449, 455-56, 254 N.W.2d 340, 344-45 (1977) (issuing judge can consider reputation in determining whether there is probable cause to search).
Moreover, probable cause exists even without the information given by the high school informants. The ongoing purchases of large quantities of drugs that had a particular color, the contemporaneous procurement of a gallon of denatured alcohol, and the information that those chemicals are used in making methamphetamines, provide strong suspicion of criminal activity. See United States v. Drake, 673 F.2d 15, 18 (1st Cir. 1982) ("The purchase in a single order of all the requisite chemicals * * * for the manufacture of a controlled drug is a `red flag' fact which arouses suspicion, although not necessarily establishing probable cause"). Those factors, combined with Patnode's motorcycle group affiliation, Jones' criminal record, and evidence that Jones lived with Patnode, make the presence of a methamphetamine laboratory at Patnode's home a fair probability. Viewing the totality of the circumstances, and mindful of the preference toward upholding warrants, we conclude that there was a substantial basis for finding probable cause to issue the search warrant.