This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1575

 

 

State of Minnesota,

Respondent,

 

vs.

 

Brent Justin Russell,

Appellant.

 

 

Filed July 26, 2005

Affirmed
Forsberg, Judge*

 

St. Louis County District Court

File No. K9-02-600596

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN  55802 (for respondent)

 

Matthew K. Begeske, 713 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

On appeal from his conviction of first-degree controlled substance offense, appellant argues that the warrant was not supported by probable cause and that the district court abused its discretion in denying his motion to disclose the identity of the confidential informant or to allow inquiry into the informant’s track record.  Because the court had a substantial basis for its probable cause determination and appellant’s disclosure request was based solely on speculation, we affirm.

D E C I S I O N

            1.         Warrant

            Appellant raises the separate procedural issue of whether the district court ever properly considered the warrant’s sufficiency.  For several reasons, appellant has waived this procedural issue.  First, he failed to brief or develop the issue on appeal.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  Although appellant generally states as “background” that the district court decided the sufficiency of the warrant before the issue was “ripe,” he does not provide legal analysis.  Second, although appellant had the opportunity to argue the warrant’s sufficiency in the district court, he failed to do so.  Appellant made no specific motion requesting a hearing on the procedural issue, and he did not otherwise reserve the procedural issue for later review. 

            “An appellate court reviews a district court’s decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed.”  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  Reviewing courts accord significant deference to the issuing judge’s determination of probable cause.  Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983).  

            An affidavit fails to support probable cause when it includes no “details . . . that would permit the issuing magistrate to independently evaluate” whether probable cause exists.  State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998).  In terms of the contents of the affidavit, the sundry elements contributing to a determination of probable cause must not be parsed out, but considered together.  State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).  Even if each component, standing alone, is insufficient to establish probable cause, “the components viewed together may reveal . . . an internal coherence that gives weight to the whole.”  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).  Accordingly, a determination of whether probable cause exists for a warrant to issue is based on a test of the “totality of the circumstances.”  Id. 

            The primary basis of appellant’s claim that the warrant application was insufficient is the inaccurate statement that appellant resided at 1908 East Jefferson Street, Apartment #1, Duluth “in January 2002.”  It is undisputed that appellant began living at that address in February 2002, not January 2002.

            A search warrant may be held void and the product of the search excluded from evidence if it is demonstrated by a preponderance of the evidence that the affiant, knowingly or with reckless disregard for the truth, included a false statement in the affidavit.  Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978).  Appellant fails to establish the Franks threshold showing.  First, the confidential informant, not the affiant, was the source of the false starting date of appellant’s residence on East Jefferson.  Second, the error was not a materially false statement.  The starting date is not a necessary link among appellant, the residence, and the illegal activity.  Third, there is no showing that the affiant recklessly included the false statement in the affidavit.  Clearly, the address itself was correct, and appellant himself testified that he inquired about renting the apartment in early January, and the landlord phoned him in the middle of January. 

            Appellant also argues that the information provided by informant #1 was stale, having been derived from “December 2001 and January 2002, some four to five months prior to execution of the search warrant in May.” 

            To avoid staleness, “proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”  Souto, 578 N.W.2d at 750 (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)).  Factors used to determine staleness include:  (1) the age of the informant; (2) whether there is an indication of ongoing criminal activity; (3) whether the items sought are innocuous or incriminating; (4) whether the property sought is easily disposable or transferable; and (5) whether the property would have enduring utility.  State v. Jannetta, 355 N.W.2d 189, 193-94 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985) (two-year-old information of criminal sexual conduct not stale).  If an affidavit indicates that drug-related activity is of an ongoing nature, the passage of time between particular transactions is less significant.  State v. Dyer, 438 N.W.2d 716, 719 (Minn. App. 1989), review denied (Minn. June 9, 1989).  

            The informant’s December 2001 statements to an agent that appellant had sold him heroin and was observed with heroin for sale on at least 10 occasions “in the past year” were facts indicating appellant’s ongoing drug sale activity, which were the basis for further surveillance of appellant’s activities.  Other transactions reported by other informants and set out in the affidavit established appellant’s consistent May 2002 drug sale activities and showed that his previous activities were ongoing.  Viewing the paragraphs in the light of the whole affidavit, the facts were not stale. 

            The remaining arguments challenging the sufficiency of the affidavit were not raised specifically in the district court.  But because a Lothenbach plea preserves the right to appeal the probable cause finding, these issues raised for the first time on appeal are properly considered by this court.  The issues are the relevance of informant #2’s information and the lack of facts on which informant #3 and corroborating witness #4 base their statements.  Appellant claims that the information provided by these individuals was vague and lacking specificity. 

            Appellant argues first that the supporting affidavit did not contain sufficient information to establish the credibility or the reliability of the informant.  In determining probable cause, the district court must consider both the “veracity” and the “basis of knowledge” of persons supplying hearsay information.  Souto, 578 N.W.2d at 750 (quotation omitted).  “All of the facts relating to the informant should be considered in weighing reliability.”  Id. And “[r]ecent personal observation of incriminating conduct has traditionally been the preferred basis for an informant’s knowledge.”  Wiley, 366 N.W.2d at 269.  A proven track record is a primary indicator of an informant’s reliability, but specific details of an informant’s record are generally not required.  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999); see also Wiley, 366 N.W.2d at 269 (holding that assertion that informant “has been used over several years successfully” was sufficient, but indicating that more specific language is preferred).

            The affidavit specified that informants #2 and #3 and cooperating witness #4 all provided recent personal observations of appellant’s involvement in heroin or crack cocaine sales.  The affidavit also contained statements by affiant that their information had been corroborated by credible sources.  Further, informant #2 personally observed drug sales and had purchased drugs at a Superior, Wisconsin, residence at about the time appellant was observed by an agent entering and then leaving that same residence within ten minutes.  Although appellant’s visit to a dealer’s house alone does not prove that he was a dealer, it is not irrelevant that appellant was linked to an active drug dealing operation in neighboring Wisconsin close in time to his own sales in Duluth.  Appellant also complains of the lack of specificity regarding the information provided by informant #3 and cooperating witness #4, but all of their observations include a recent time period, the specific location, and the type of drug sold by or possessed by appellant.  Appellant cites no cases requiring greater specificity.

            Viewing the components of the warrant affidavit together, there were ample facts showing the requisite object-place nexus for appellant’s recent drug-selling activity.  Therefore, the district court had a substantial basis to determine that probable cause existed.

            2.         Identity of Informants

            A defendant may challenge the validity of a facially sufficient affidavit used to obtain a search warrant and may obtain the identity of a confidential informant upon a prima facie showing.  State v. Luciow, 308 Minn. 6, 240 N.W.2d 833, 835 (1976).  The following four factors are considered to determine if disclosure of a CRI is warranted:  “whether the informant was a material witness; whether the informant’s testimony will be material to the issue of guilt; whether the state’s evidence is suspect; and whether the informant’s testimony might disclose entrapment.”  State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982); see also Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979).  The defendant bears the burden of establishing that the informant’s testimony is necessary.  Ford, 322 N.W.2d at 614.  The name of a mere transmitter of information, who is not an active participant in or witness to the offense need not be disclosed.  State v. Purdy, 278 Minn. 133, 145, 153 N.W.2d 254, 262 (1967).  “[A] defendant must make a minimal showing of a basis for inquiry that is more than mere speculation” to obtain in camera review.  State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989) (noting that state’s interest in protecting informants in drug world is strong) (quotations omitted), review denied (Minn. Dec. 29, 1989).

            Appellant does not analyze the factors set out in Ford.  At best, appellant’s request for disclosure and in camera review is based on speculation.

            Affirmed.