This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Maurice Duncan,


Filed June 9, 1998


Klaphake, Judge

Kandiyohi County District Court

File No. K9-97-49

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, Tedman Heim, Certified Student Attorney, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Boyd Beccue, Kandiyohi County Attorney, Courthouse, 316 SW Fourth Street, Willmar, MN 56201 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Holtan, Judge*.

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



Maurice Duncan appeals from his conviction for conspiracy to commit a controlled substance crime in the first degree under Minn. Stat. §§ 152.021, subds. 1(1), 3(a) and 152.096 (1996). We affirm because the warrant affidavit contained sufficient information to establish probable cause and did not contain any material or deliberate misrepresentations, the warrant was valid; because the arresting officer had the consent of appellant's cousin to enter her house for the purpose of arresting appellant, appellant's subsequent statement was not constitutionally infirm; and because the evidence was sufficient to convict appellant when he stipulated to the requisite elements of the offense.



Appellant claims that the warrant to search the apartment where appellant and his girlfriend lived was invalid because the warrant affidavit lacked probable cause. See U.S. Const. Amend. IV; Minn. Const. art. I, § 10 (citizens protected from unreasonable searches and seizures). He argues that much of the information was stale because it stemmed from information obtained six months earlier and that the only remaining information consisted of tips from anonymous informants.

Information contained in a search warrant affidavit must establish a nexus between the alleged crime and the particular premises to be searched, particularly in cases involving the search of a residence for controlled substance evidence. State v. Souto, ___ N.W.2d. ___, ___ (Minn. May 14, 1998). While probable cause cannot be established by stale information, such information may suggest "ongoing criminal activity." State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987) ("the character of the crime is crucial because, when the acts are protracted and of a continuous nature, the passage of time is of less significance"). In addition, an anonymous tip that is corroborated by other information in the affidavit or that contains information tending to establish the informant's basis of knowledge may assist in establishing probable cause. See, e.g., Illinois v. Gates, 462 U.S. 213, 242-43, 103 S. Ct. 2317, 2334-35 (1983); State v. Eling, 355 N.W.2d 286, 291 (Minn. 1984).

The warrant affidavit here included a number of different pieces of information spanning a six-month period and arising from different sources, including at least two recent anonymous tips. The information obtained from each source tended to be internally consistent and was corroborated by other information contained in the affidavit. In particular, the affidavit contained consistent claims from several independent sources that appellant, or "Maurice," lived in the apartment; that the apartment had a lot of foot traffic; that appellant was selling cocaine, possibly to teenagers; and that the odor of burning marijuana had been smelled outside the apartment. Cf. Souto, ___ N.W.2d at ___ (when affidavit information failed to establish any nexus between defendant's drug activities and her home, no probable cause found). When all of the information is viewed under a "totality of the circumstances" test, it cannot be concluded that the issuing judge erred in determining that there was a "fair probability that contraband or evidence of a crime [would] be found" at the apartment. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (probable cause exists under totality of circumstances if, when viewed together, the individual components "reveal an internal coherence"); see State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990); State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989) (affidavit information must be "viewed as a whole," not in isolation), review denied (Minn. June 21, 1989).


Appellant also claims that the search warrant is invalid because the affidavit contains deliberate misrepresentations of material facts. To invalidate a warrant on this basis, appellant must show that the misrepresented facts were material to the determination of probable cause and that the agent who applied for the warrant deliberately or recklessly misrepresented those facts. State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977). Appellant has not met this burden. Examination of the affidavit and documents on which the affiant relied reveals no material misstatements or omissions that might have misled the issuing judge, and appellant has failed to show that the affiant acted deliberately or recklessly in drafting the affidavit.


Appellant was arrested two days after the search warrant was executed, while he was staying at his cousin's house. He challenges as unconstitutional a subsequent statement he made at the police station after receiving a Miranda warning, in which he admitted to owning and individually packaging the cocaine found in the apartment.

Police are prohibited from making a warrantless, nonconsensual entry into a person's home to make a routine felony arrest. Payton v. New York, 445 U.S. 573, 596, 100 S. Ct. 1371, 1382 (1980). The state claimed, however, that it had the consent of appellant's cousin to enter her house to arrest appellant. The arresting officer testified that the cousin gave him permission after he informed her that if she lied to him she could go to jail, possibly resulting in her children being removed from her custody. The cousin testified that she consented because she was afraid of these consequences. Although police may not use threatening language, trickery, or deceit to obtain consent, here the officer's statement was accurate in describing the possible consequences of the cousin's failure to cooperate. See State v. Lotton, 527 N.W.2d 840, 845 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). Under these circumstances, the state met its burden of showing that the cousin freely consented to the entry. Id. at 843.[1]


Appellant argues that the evidence and the trial court's findings are insufficient to support his conviction because the court made no reference to the amount of cocaine tested by the Bureau of Criminal Apprehension (BCA). See State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994) (conviction reversed because random sampling of only 7 out of 13 packets insufficient to establish 10 or more grams of cocaine, where total weight of packets was only 16.7 grams). Here, after adverse pretrial rulings, appellant entered a Lothenbach plea[2] to facilitate review of the pretrial issues, and in so doing stipulated to the following facts:

These [154 individually wrapped rocks of crack cocaine and another small baggie containing 4 more rocks which were found in one of the apartment's bedrooms ] were submitted to the [BCA] Laboratory in St. Paul which determined that they in total combined to a total weight of thirty two point eight grams of a mixture containing cocaine.

Thus, irrespective of proof of controlled substance amounts required under Robinson, appellant's stipulation was sufficient to support his conviction for "unlawfully sell[ing] one or more mixtures of a total weight of ten grams or more containing cocaine" under Minn. Stat. § 152.021, subd. 1(1) (1996). Further, the trial court's finding on the amount of cocaine mirrors the statute and is therefore also sufficient.


[ 1] Because of our decision on this issue, we decline to address the state's alternative argument that suppression of appellant's statement is not required under New York v. Harris, 495 U.S. 14, 19-20, 110 S. Ct. 1640, 1644 (1990).

[2] State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).