STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Lee Ballek,
Filed August 24, 1999
Clearwater County District Court
File No. K997402
Kip Fontaine, Clearwater County Attorney, 213 Main Avenue North, Department 301, Bagley, MN 56621 (for respondent)
Bradford Colbert, Melissa Victoria Sheridan, Assistant State Public Defenders, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.[*]
This appeal is from a conviction for fifth-degree controlled substance possession in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). Appellant argues the search warrant executed by the authorities was invalid. We affirm.
The warrant, as it related to appellant, was based on information from a confidential reliable informant (CRI). The CRI stated he had purchased marijuana, methamphetamine, and cocaine from appellant at appellant's residence "on numerous occasions" in the last year. The CRI also told Woolever that appellant manufactured marijuana on his property. The day before Woolever applied for and received the warrant, the CRI said he had seen drug paraphernalia at appellant's property in the last 72 hours. The CRI had given accurate and reliable information in the past resulting in two purchases of controlled substances from other drug traffickers in the area.
On June 29, 1997, Woolever and other agents from the task force were executing a warrant at the Russell Tilbury residence. Appellant drove up to the Tilbury residence in a 1991 Ford Crown Victoria. Woolever recognized and approached appellant and informed him he had a warrant to search appellant, his vehicle, and his residence and property. Upon searching appellant's person and vehicle, the agents discovered a sniffing spoon, marijuana, pills, and methamphetamine.
After completing the Tilbury search, the agents went to appellant's residence and searched the property, including all out buildings. Appellant challenges the issuance and execution of the warrant based on (1) lack of probable cause, (2) the issuing judge and officer were not from the same jurisdiction, and (3) appellant's vehicle and person were searched away from his residence.
Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. With few exceptions, a search is valid only when it is conducted pursuant to a valid search warrant. State v. Gabbert, 411 N.W.2d 209, 212 (Minn. App. 1987). To determine whether probable cause existed in order to issue a search warrant, the totality of the circumstances test is used. Under the totality of the circumstances test,
[t]he 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.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); see State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991).
Minnesota courts have adopted the totality of circumstances test as set forth in Gates to determine if the search warrant was properly issued. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). "The Fourth Amendment only requires that the magistrate had a `substantial basis for * * * conclud[ing] that a search would uncover evidence of wrongdoing.'" State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Gates, 462 U.S. at 236, 103 S. Ct. at 2331). "In reviewing the sufficiency of an affidavit under the totality of circumstances test, courts must be careful not to review each component of the affidavit in isolation." Albrecht, 465 N.W.2d at 109 (citing Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S. Ct. 2085, 2087-88, (1984)). Further, "the resolution of doubtful or marginal cases should be `largely determined by the preference to be accorded to warrants.'" Id. (quoting Upton, 466 U.S. at 734, 104 S. Ct. at 2089).
"A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common-sense manner."
State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989), review denied (Minn. June 21, 1989) (quoting Gates, 462 U.S. at 236, 103 S. Ct. at 2331).
The Minnesota Supreme Court requires "a direct connection or nexus between the alleged crime and the particular location to be searched." State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citations omitted). The evidence here establishing a direct connection or nexus is that the CRI made several purchases of drugs from appellant at appellant's home in the last year and saw drug paraphernalia at appellant's home in the last 72 hours.
The reliability of the CRI can be established by looking at all facts related to the informant. McCloskey, 453 N.W.2d at 703. Where the informant is confidential, but not anonymous to the police, reliability may be demonstrated by stating in the affidavit the informant has given correct information to police in the past. Wiley, 366 N.W.2d at 269. As is the case here, the CRI had given police information resulting in two controlled purchases and information leading to seven other search warrants. Another factor supporting the reliability of the CRI is the statement against the CRI's own interest that he purchased drugs from appellant over the course of the last year. See McCloskey, 453 N.W.2d at 704.
Appellant argues that Albrecht is the controlling case concerning informant reliability. However, that case is distinguishable by the fact the informant in Albrecht was anonymous and gave his information by telephone. 465 N.W.2d at 108. It is clear in the present controversy that the police knew the confidential informant and had received correct information in the past. Based on a totality of the circumstances analysis, the reliability of the informant was sound.
Appellant also argues the information used to obtain the search warrant was stale. The staleness of the information is determined by examining the circumstances of each case. See 2 Wayne R. LaFave, Search and Seizure, § 3.7(a) at 341 (1996). The Minnesota Supreme Court has held that factors to consider in determining whether information is stale include:
the age of the person supplying the information, whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable.
State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (citation omitted).
The single most important factor in determining whether information in a search warrant application is stale is whether there is an indication of ongoing criminal activity. 2 LaFave, supra, § 3.7(a) at 346. The indication from the application for the search warrant is that appellant was engaged in an ongoing criminal activity of selling drugs from his property. The application for the warrant states "during the course of the last year the CRI has purchased marijuana, methamphetamine and cocaine from [appellant] on numerous occasions while at the [appellant's] residence." The fact that the application does not give specific dates for when the drugs were purchased forces the magistrate to assume that transactions took place in the most remote part of the given time period. Commonwealth v. Novak, 335 A.2d 773, 774 (Pa. Super. Ct. 1975); see also 2 LaFave, supra, § 3.7(b) at 355-59.
But the CRI also gave information to authorities that he had "observed paraphernalia items used to ingest methamphetamine and/or cocaine" in appellant's residence within 72 hours of application for the warrant. When all the information is viewed as a whole under the "totality of the circumstances" test, it cannot be concluded that the issuing judge erred in concluding that there was a "`fair probability that contraband or evidence of a crime [would] be found.'" Wiley, 366 N.W.2d at 268 (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332).
If the judge is satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, the judge must issue a signed search warrant, naming the judge's judicial office, to a peace officer in the judge's county or to an agent of the bureau of criminal apprehension.
Agent Woolever, while a Bemidji police officer, was also assigned to the Paul Bunyan Narcotic Task Force. The task force's jurisdiction included 13 county and city jurisdictions. The issuing judge's county was one of those participating jurisdictions. The task force had a joint powers agreement pursuant to statute. Minn. Stat. § 471.59, subd. 12 (1996) states that "an officer acting pursuant to [a joint powers agreement] has the full and complete authority of a peace officer as though appointed by both governmental units."
Therefore, appellant's argument fails. The warrant was properly issued pursuant to the relevant statutes.
A 1-1/2 story residence, white in color, a white mobile home, a white camper trailer, all outbuildings, located at RR2 Box 44, on County Road 89, fire number S1123; described as Section 15 Township 147 Range 036, East half of the Southwest 1/4 Southeast 1/4; Southeast 1/4 of the Southeast 1/4 in Shevlin Township, Clearwater County, Minnesota; 1985 Chevrolet Celebrity, MN LIC/012 HTA; 1983 Mercury Grand Marquis, MN LIC/889 BEL; 1991 Ford Crown Victoria MN LIC/219 JYX and all vehicles located on the premises; on the person of James Leo Ballek, DOB 07-24-53.
The vehicle in question was described specifically in the search warrant application. The language appellant points to for his argument is "and all vehicles located on the premises. " This language does not prohibit a search of the 1991 Ford Crown Victoria. Rather, this language is for any other unidentified vehicles the agents may find on the property not otherwise identified. The fact agents could identify the Ford from the description in the warrant allows them to search the vehicle at the Tilbury residence. See 2 LaFave, supra, § 4.5(c) at 538. In this case, the agents had a sufficient description of the car, including the make, model, year of production, and license number. Therefore, the agents properly searched the vehicle away from appellant's residence.
We turn next to the search of appellant's person. The search warrant described appellant by giving his full name and date of birth. Agent Woolever recognized appellant and confirmed his identity prior to executing the warrant and searching appellant's person.
The Fourth Amendment does not require that a search warrant for a person indicate the place where he is to be found and searched. "If there is probable cause to believe that a certain specifically-described person has the described things to be seized on his person, there is no reason why the search of that person must be limited to a particular location." 2 LaFave, supra, § 4.5(e) at 543. Agent Woolever, through experience and training, knew drug dealers keep incriminating evidence on themselves and in their vehicles. This gave Woolever probable cause to search appellant at the Tilbury residence rather than waiting to have appellant arrive at his own residence to be searched. Appellant was described in the warrant and Woolever confirmed his identity.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.