C5-99-895

State of Minnesota,

Respondent,

vs.

Thomas Lee Erickson,

Appellant.

Filed May 9, 2000

Affirmed

Willis, Judge

Dakota County District Court

File No. K6961323

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

Paul Applebaum, 1030 Minnesota Building, 46 E. 4th Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of third-degree controlled substance crime, arguing that the warrant authorizing the search that produced evidence against him failed to describe with sufficient particularity the place to be searched, because his address was omitted, and that the Search Warrant Application and Supporting Affidavit (the “application and affidavit”) on which his address appeared was not attached to the warrant or incorporated into the warrant by reference and did not accompany the warrant during the search. We affirm.

FACTS

On June 4, 1996, South St. Paul police officers were dispatched to the residence of appellant Thomas Lee Erickson on a report of a burglary in progress. Officers apprehended the juvenile burglars in a nearby park with bags of what was suspected to be marijuana. Several officers remained at the scene of the burglary and were securing the premises when Erickson’s wife arrived home. After the officers informed her of the burglary and voiced their concern that someone might still be inside, Mrs. Erickson allowed the officers to enter the house to search for additional suspects. While checking the master bedroom, Officer William White smelled marijuana and noted a marijuana roach in an ashtray and a triple-beam scale on the closet floor.

Officer White asked Mrs. Erickson for permission to search the residence for controlled substances; she refused. Officers then secured the Erickson property while Officer White returned to his office to prepare an application and affidavit and a draft search warrant.

Officer White presented the documents he prepared to the district court for review. The district court recommended a change in the wording of the warrant, so Officer White returned to his office to make the suggested change. In the revised version of the warrant, reviewed and signed by the district court, the address of the premises to be searched was omitted from the search warrant, although it remained in the application and affidavit. The application and affidavit was not attached to the search warrant. Although Officer White admitted that he did not have the application and affidavit on his person at the time of the warrant execution, he testified at the Rasmussen hearing that it would have been impossible for the wrong premises to be searched, not only because he was the executing officer and he had recently been present at the scene, but also because other officers were still securing the premises.

Officer White executed the search warrant later that evening, and he directed two officers to search a detached, two-story building with a tuck-under garage on the Erickson property. The officers smelled a strong odor of unburned or raw marijuana coming from a cardboard box on the floor of the garage’s upstairs storage area. The officers opened the box, finding two duffel bags containing a total of 31 large plastic bags (slightly over 30 pounds) of what was later identified as marijuana.

Erickson was charged with one count of third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 1(5) (1994), and one count of third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 2(5) (1994). The district court denied Erickson’s motion to suppress the evidence seized and, following a court trial on stipulated facts, found him guilty of possession with intent to sell marijuana, in violation of Minn. Stat. § 152.023, subd. 1(5).

D E C I S I O N

In reviewing pretrial orders on motions to suppress, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in denying suppression of the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Erickson argues that the evidence seized from the search of his garage should be suppressed as the result of an illegal search because the search warrant application and affidavit with the address of the premises to be searched was not attached to the search warrant or incorporated into the warrant by reference and, therefore, the warrant was invalid for failing to state with particularity the premises to be searched. The district court was troubled that, although the warrant and the application and affidavit were presented to the issuing judge and filed together, the application and affidavit was either in Officer White’s vehicle or at his office during the execution of the warrant and did not accompany the warrant during the search. The district court relied on United States v. Bonner, 808 F.2d 864, 867 (1st Cir. 1986), and State v. Gonzales, 314 N.W.2d 825 (Minn. 1982), which it interpreted as indicating that courts have viewed the particularity requirement with some flexibility. On the basis of that interpretation, the district court concluded that the inadvertent omission of the address did not invalidate the warrant, where the officer who executed the search warrant participated in an earlier search of the residence, thus minimizing the risk for mistakes. We agree.

Both the United States Constitution and the Minnesota Constitution specifically require that search warrants describe the place to be searched with particularity. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Section 626.08 contains a similar provision. Minn. Stat. § 626.08 (1994). “The main purpose of the requirement is ‘to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate.’” Gonzales, 314 N.W.2d at 827 (quoting 2 W. LaFave, Search and Seizure § 4.5 (1978)). Accordingly, “[n]ot all errors in the search warrant’s description of the premises to be searched will invalidate a search pursuant to the warrant.” Id.

The test for determining the sufficiency of the description of the premises is whether the description is sufficient so that the executing officer can “locate and identify the premises with reasonable effort” with no “reasonable probability that [other premises] might be mistakenly searched.”

Id. (quoting United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979)). Additionally, this court has stated:

Traditionally, an affidavit cannot be used to clarify a defective or ambiguous description in a warrant, since the warrant itself must “limit the discretion of the executing officers as well as to give notice to the party searched.” Nevertheless, an affidavit may be used to cure a deficient warrant if the affidavit and warrant are physically attached to one another and the warrant refers to the affidavit and incorporates it by reference.

State v. Bonynge, 450 N.W.2d 331, 335 (Minn. App. 1990) (quoting United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976)), review denied (Minn. Feb. 21, 1990); see also State v. Mathison, 263 N.W.2d 61, 63 n.2 (Minn. 1978) (describing identical two-pronged test).

Erickson argues that the facts of his case are similar to those of Mathison, where the supreme court held that “[t]he search of defendant’s apartment was * * * not authorized by the warrant and was clearly unconstitutional” because the warrant contained no particular description of the premises to be searched. 263 N.W.2d at 63. In Mathison, the application and affidavit contained the correct address but was not attached to the warrant or incorporated by reference into the warrant. Id. at 62. The search warrant in Mathison also failed to name the defendant or give his address, and the facts do not show whether the affiant was the executing officer. Id. at 62-63.

The decision in Mathison was narrowed by Gonzales, where the supreme court upheld the validity of a search warrant that showed the incorrect address because the executing officer, who had also prepared the application and affidavit and the warrant, had seen the house to be searched before he applied for the warrant and there was no reasonable probability that he would search the wrong house. Gonzales, 314 N.W.2d at 827. Because the application and affidavit also showed the incorrect address, the issues of attachment and incorporation did not arise. Further, the Gonzales court specifically distinguished Mathison, where there was no incorporation or attachment and no indication that the executing officer was the same officer who had observed contraband at the defendant’s apartment. Therefore, we conclude that the knowledge of the executing officer is to be given considerable weight.

On the facts before us, where the executing officer had been on the premises to be searched before preparing the warrant and the application and affidavit, and where officers were still securing the premises, there was no serious risk that there would be a search of any premises other than those the district court intended to be searched. Accordingly, the district court did not err in concluding that the search warrant was valid and denying suppression of the evidence seized during the execution of the warrant.

Affirmed.