This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Rosemary Ortega,


Filed September 8, 1998


Randall, Judge

Ramsey County District Court

File No. K8-96-4162

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan E. Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, Minnesota State Public Defender, Mary Sue Snyder, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant argues the district court erred when it refused to suppress evidence seized pursuant to the execution of a search warrant because the search warrant was based on reckless or intentional misrepresentations by the police. We affirm.


Following the execution of a search warrant at her residence, appellant Rosemary Ortega was charged with conspiracy to distribute a controlled substance, conspiracy to commit robbery, and possession of cocaine. Ortega moved to suppress all evidence obtained pursuant to the search warrant, arguing that the search warrant was invalid because it was based on material misrepresentations. Ortega argued that if the material misstatements were stricken, the search warrant lacked probable cause. Following nearly four days of testimony at the Rasmussen hearings and an in-camera review of the police file on the confidential reliable informant used by police in the matter, the district court ruled that there were no material false statements or omissions in the affidavit accompanying the search warrant, the search warrant was supported by probable cause, and the evidence seized pursuant to the search warrant was admissible.

The matter was tried to the district court, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), based on the entire record which included the complaint, all police and laboratory reports, the testimony from the three Rasmussen hearings, and the transcript of the guilty plea by Ortega's co-defendant, Lebrado Martinez. On July 22, 1997, the district court found Ortega guilty of a controlled substance crime in the first-degree. The presumptive sentence of 86 months was stayed, and Ortega was placed on 30 years' probation and ordered to serve 180 days in jail. This appeal follows.


A magistrate's probable cause determination is to be paid great deference by a reviewing court and is not to be reviewed de novo. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Under the Fourth Amendment, a magistrate is required to have only a "'substantial basis for * * * conclud[ing] that a search would uncover evidence of wrongdoing.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)) (other quotations omitted). When determining whether probable cause exists, a reviewing court is limited to the information presented at the time of the search warrant application. State v. Gabbert, 411 N.W.2d 209, 212 (Minn. App. 1987). Once probable cause is determined to exist by the issuing court, "a reviewing court may not engage in a hypertechnical examination of the affidavit, but should pay great deference to the [issuing court's] determination." State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996). When examining the sufficiency of an affidavit, a reviewing court must look to the "totality of the circumstances" and not review each component of the affidavit in isolation. Wiley, 366 N.W.2d at 268. Under this test,

[t]he 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 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. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). "[T]he resolution of doubtful or marginal cases should be "'"largely determined by the preference to be accorded to warrants."'" State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085, 2089 (1984) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965))).

On appeal, Ortega argues that the search warrant should be invalidated and all the evidence obtained pursuant to the warrant suppressed because the undercover police officer, Michael Bratsch, included material misrepresentations in the affidavit accompanying the search warrant application. If a search warrant application contains intentional or reckless misrepresentations of fact material to the probable cause finding, the search warrant is void and the fruits of the search must be excluded. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978)). A misrepresentation is material if probable cause to issue the search warrant no longer exists when the misrepresentation is set aside. Id. "[A]n innocent mistake or non-material misrepresentation is no basis for suppression." State v. Jannetta, 355 N.W.2d 189, 194 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). To hold a search warrant void, it must be demonstrated by a preponderance of the evidence that the affiant knowingly, or with reckless disregard for the truth, included false statements in the affidavit. State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). State v. Luciow, 308 Minn. 6, 14, 240 N.W.2d 833, 839 (1976).

Ortega first challenges the sentence in the affidavit that states, "[t]he meeting occurred as planned." This refers to the meeting Bratsch had his confidential reliable informant (CRI) arrange with Martinez to purchase a kilo of cocaine. Ortega claims that the meeting did not take place "as planned" because the location of the meeting changed from a Burger King to a nearby car wash and Bratsch did not see or purchase the kilo of cocaine. Therefore, according to Ortega, the affidavit was based on a material misrepresentation.

It is undisputed that Bratsch met with Martinez and that the two discussed the purchase. Although the location of the deal was switched and Bratsch did not see or buy the cocaine, the meeting between Martinez and Bratsch essentially took place as planned. Ortega's reading of the affidavit's sentence is hypertechnical and disregards the fluid dynamics of an undercover drug purchase. Often the details of such purchases do not go exactly "as planned." "In viewing the circumstances of each case, [courts] must apply 'practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Jannette, 355 N.W.2d at 193 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949)). Recognizing the changing and the "play-it-by-ear" nature of an undercover drug purchase, we conclude that this statement was not an intentional or reckless material misrepresentation.

Ortega also attacks the sentence in the affidavit that reads, "[a]nother party involved in the transaction, but never identified, was an unwitting person." Ortega claims that this was a material misrepresentation because Bratsch knew the identity of the unwitting person to be Connie Green. It is clear that Bratsch learned Green's name and that he pulled her photograph and criminal history from police records before the meeting took place. By all accounts, Green was an unwitting person who did not know that Bratsch was an undercover officer. However, this statement is immaterial to the issue of probable cause. Even if the statement was deleted or reformed to reflect Bratsch's knowledge, it would not render the search warrant invalid for lack of probable cause. See Moore, 438 N.W.2d at 105 (holding misrepresentation is material if, when deleted, probable cause no longer exists). This misstatement is not material to the issue of probable cause and does not require the invalidation of the search warrant and the suppression of the evidence seized pursuant to the warrant. See Jannetta, 355 N.W.2d at 194 (stating innocent mistake or non-material misrepresentation no basis for suppression).

Ortega also argues that the designation of the informant as a CRI in the affidavit was a material misrepresentation by Bratsch. She claims that she is entitled to have the informant's identity disclosed in the other cases in which he has provided information to the police. However, to challenge the CRI designation of the informant as a material misrepresentation requires an inquiry into the information that the informant has provided in the past. This would require the district court to look behind what is an otherwise facially sufficient affidavit. Absent a prima-facie showing that the affidavit contained other material misrepresentations, Ortega cannot challenge the designation of the informant as a CRI. Cf. State v. Luciow, 308 Minn. 6, 14, 240 N.W.2d 833, 839 (1976) (holding defendant could require disclosure of identity of CRI whose information was relied on in affidavit supporting search warrant only after making prima-facie showing that affidavit contained material false statements). Without such a showing, she cannot challenge the statements contained in the affidavit designating the informant as a CRI.

Ortega argues that even if she did not meet her burden, she was still entitled to an in-camera evidentiary hearing by the district court on this issue. Even if a defendant fails to meet his burden of establishing the need for the disclosure of an informant's identity, the court should conduct an in-camera hearing to consider affidavits or to interview the informant in person if the defendant "establish[es] a basis for inquiry by the court." State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982). This review is to be done outside the presence of the defendant and his counsel. Moore, 438 N.W.2d at 106.

Despite finding that Ortega failed to establish a prima-facie showing that Bratsch's affidavit contained any material misrepresentations, the district court did an in-camera review of the CRI file on the informant maintained by the police. After reviewing the file, the district court concluded that it did not contain any exculpatory evidence. A review of this confidential file reveals that the informant provided the police with information regarding the sale of narcotics on four separate occasions and was paid for that information. If the information the informant had provided in the past was bad or unreliable, the police would not have continued to use the informant as a CRI. The police CRI file on the informant corroborates his designation as a CRI in this case.

In sum, Ortega has failed to establish a prima-facie showing that Bratsch's affidavit contains any intentional or reckless material misrepresentations. Absent such a showing, Ortega may not go behind and challenge what is a facially sufficient affidavit, including the designation of the informant as a CRI. In addition, by reviewing the CRI file on the informant's past work for the St. Paul police, Ortega did receive an in-camera review on the informant's designation as a CRI.