This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-1010

 

State of Minnesota,

Respondent,

 

vs.

 

Odean Garner,

Appellant.

 

Filed April 2, 2002

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 01001997

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, 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 illegal possession of a firearm, which was based on the discovery of a rifle during the execution of a search warrant at his residence.  He argues that the affidavit supporting the search warrant was not supported by probable cause and that the district court erred by admitting police testimony about an incriminating statement made by appellant.  Because we conclude that probable cause supported the search warrant and that the district court did not err by admitting evidence of appellant’s statement, we affirm. 

FACTS

In January 2001, Minneapolis police officer Lora Hilger obtained a warrant to search the residence of appellant Odean Garner, and police executed the warrant the following day.  For safety reasons, police officers handcuffed appellant and two juveniles who were present at the residence and seated them on the main floor of the house, near the place where Officer Hilger inventoried seized items.  During the search, a police officer found a box of .22-caliber ammunition and brought the ammunition to Officer Hilger.  Upon seeing the bullets, another officer remarked that he wondered about the location of the gun that went with the bullets.  Appellant then stated that the bullets were for a rifle that he kept in the basement.  An officer recovered the rifle from the basement, and appellant was subsequently charged with illegal possession of a firearm, a violation of Minn. Stat. § 624.713 (2000).  

At the Rasmussen hearing, appellant challenged the search warrant for insufficient probable cause and further argued that the district court should suppress police testimony that the appellant stated that he kept a rifle in the basement because the police officer’s remark amounted to a custodial interrogation with no prior Miranda warning and violated the Scales mandate that, when feasible, officers must electronically record a custodial interrogation.  The court upheld the search warrant, finding that “given the deference afforded to the judicial officer signing the warrant and the totality of the circumstances,” the warrant was properly issued.  Further, the court denied appellant’s motion to suppress his statement, finding that he had volunteered the statement about the rifle and, therefore, the officers did not violate Miranda or Scales.    

At trial, appellant testified that the police officers did not attempt to elicit an admission from him about the bullets or rifle, and he denied making any statement about the rifle to the officers.  A jury found appellant guilty, and this appeal follows.     

D E C I S I O N

I.

 

            This court reviews a district court’s determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).   There is such a substantial basis if there is a “fair probability,” given the totality of the circumstances, “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) (citations omitted).   

Under this test, the reviewing court is not to review each component of the affidavit in isolation but is to view them together.  * * *  The [authorizing judge] is to make a practical, common-sense determination, which a reviewing court may not undermine by engaging in a hypertechnical examination of the affidavit.

 

State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quotations omitted).  Therefore, this court gives “[g]reat deference” to the district court’s determination of probable cause.  State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989), review denied (Minn. June 21, 1989). 

            An affidavit fails to provide probable cause when it includes no “details * * * that would permit the issuing [judge] to independently evaluate” whether probable cause exists.  State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998) (citation omitted).  Officer Hilger’s affidavit describes neighbors’ complaints about the constant foot traffic in and out of appellant’s residence.  The affidavit further describes a controlled buy that police arranged through a confidential, reliable informant (CRI). 

Appellant nevertheless argues that the affidavit fails to provide details about the CRI’s reliability and about whether police followed proper controlled-buy procedures.  Without that information, appellant continues, the neighbors’ suspicions alone cannot support a determination of probable cause.  See State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994) (stating that “mere suspicion does not equal probable cause”).        

But Officer Hilger’s affidavit states that she and two other named officers “believe the CRI to be reliable” and that “[t]he CRI has given officers information in [the] near past that was checked through independent sources.”   Information in the affidavit that the officer had “successfully” used the informant in the past gives the authorizing judge reason to rely on the information that the informant provides.  State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985).  

Further, Officer Hilger worked undercover and corroborated the information that neighbors gave her.  See Anderson, 439 N.W.2d at 426 (“The incessant traffic of brief visits to [the defendant’s] residence * * * gained considerable significance [to the assessment of probable cause] because of the officers’ experience and training.”).  And, when an affidavit refers to a “controlled buy,” as this one did, the district court may presume that the use of that term of art means that police followed proper procedures, that is, “searched the informant immediately before and after the alleged drug purchase,” Ward, 580 N.W.2d at 71, and surveilled “as much of the transaction between the buyer and seller as possible.”  State v. Hawkins, 278 N.W.2d 750, 751 (Minn. 1979).  

            Given the totality of circumstances, Officer Hilger’s affidavit gave the authorizing judge “sufficient underlying facts” to conclude that probable cause existed.  See Ward, 580 N.W.2d at 71 (quotation omitted).  The district court did not err in upholding the search warrant.

II.

When reviewing pretrial orders on motions to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred in its ruling.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  

Statements made during a custodial interrogation or its functional equivalent are not admissible in evidence unless the suspect is first advised of his Miranda rights.  State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn. 1999).  Further, State v. Scales mandates that the interrogation or its functional equivalent must be electronically recorded when feasible and always when questioning occurs at a place of detention.  518 N.W.2d 587, 592 (Minn. 1994).  But neither Miranda nor Scales applies to a statement that is not made in response to a custodial interrogation or its functional equivalent; “‘[a]ny statement [that a suspect makes] freely and voluntarily without any compelling influences is * * * admissible in evidence.’”  Tibiatowski, 590 N.W.2d at 308 (quoting Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966)); State v. Edrozo, 578 N.W.2d 719, 726 (Minn. 1998) (noting that Scales applies only to custodial interrogation).

Minnesota applies federal constitutional standards through a totality-of-the-circumstances test to determine the voluntariness of a suspect’s statement, focusing on whether the overall effect of the circumstances would be enough to overpower the will of the suspect.  Some element of coercion is required for a statement to be deemed involuntary, and the nature of the interrogation is one factor to examine.

 

Tibiatowski, 590 N.W.2d at 310 (citations omitted).     

Appellant argues that the police officer’s remark about the location of the gun that went with the bullets was the functional equivalent of custodial interrogation.  Thus, although appellant testified at trial that he said nothing about the rifle to police, he argues that the district court erred in admitting police testimony about appellant’s statement because the police had not given appellant a Mirandawarning and, although it was feasible to do so, they failed to record the exchange between the police and appellant.  Whether the district court erred, then, in admitting the police testimony that appellant said he kept a gun in the basement turns on whether the police officer’s remark amounted to “custodial interrogation.”

Custodial interrogation means “‘express questioning’” as well as its functional equivalent, that is, “‘any words or actions on the part of the police * * * that the police should know are reasonably likely to elicit an incriminating response from the suspect.’” State v. King, 513 N.W.2d 245, 248 (Minn. 1994) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980)).  The mere possibility that police words or actions will elicit an incriminating response is not sufficient to constitute interrogation; the words or actions “‘must reflect a measure of compulsion above and beyond that inherent in the custody itself.’”  Tibiatowski, 590 N.W.2d at 310 (quoting Innis, 446 U.S. at 300, 100 S. Ct. at 1689); see King, 513 N.W.2d at 248.  The analysis of whether statements are reasonably likely to elicit such a response must focus on the “‘perceptions of the suspect, rather than the intent of the police.’”  State v. Munson, 594 N.W.2d 128, 141 (Minn. 1999) (quoting Innis, 446 U.S. at 301, 100 S. Ct. at 1690). 

            In Munson, the supreme court held that an exchange between two police officers that took place in a suspect’s presence constituted impermissible custodial interrogation in violation of the suspect’s right to counsel.  594 N.W.2d at 138-43 (applying definition of custodial interrogation set forth in Innis).  In that case, the officers ceased questioning the suspect when he invoked that right.  Id. at 139.  But one of the officers warned, “Remember what I said, though,” referring to an earlier comment regarding the suspect’s “window of opportunity” to help himself by talking to police.  Id. at 140.  The officers continued to talk to each other in the suspect’s presence regarding what would happen to his case and again commented on his “window of opportunity.”  Id.  The suspect then revoked his right to counsel and made incriminating statements.  Id. at 134.  The supreme court concluded that the officers had designed their exchange to elicit a response from the suspect and that, therefore, the response should have been suppressed.  Id. at 142-43.

Here, several witnesses, all police officers, testified that a police officer remarked that he wondered about the location of the gun that went with the bullets.  The witnesses testified that the officer did not direct his remark at appellant.  Unlike the exchange in Munson, the remark here did not “reflect a measure of compulsion above and beyond that inherent in the custody itself.”  See Tibiatowski, 590 N.W.2d at 310 (quotation omitted).  Under the circumstances, the officer who made the remark would not have reasonably anticipated that such a remark would elicit an incriminating statement from appellant.  The police had engaged in no direct questioning or the functional equivalent of a custodial interrogation of appellant before he told them about the gun, and therefore Miranda and Scales do not apply. 

Affirmed.