A05-935

State of Minnesota,

Respondent,

vs.

David Alan Bolander,

Appellant.

Filed April 11, 2006

Affirmed

Hudson, Judge

St. Louis County District Court

File No. K9-02-600498

Mike Hatch, Attorney General, Catherine M. Powell, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

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

Richard P. Holmstrom, 319 West Superior Street, Suite 202, Duluth, Minnesota 55802 (for appellant)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

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

HUDSON, Judge

In this appeal from a conviction of first-degree controlled substance offense, appellant argues that evidence seized pursuant to the search warrant for appellant’s residence should have been suppressed because the warrant application failed to establish probable cause. Relying on this court’s unpublished opinion in State v. Waino, No. A03-516 (Minn. App. Dec. 2, 2003), review denied (Minn. Feb. 25, 2004), suppressing evidence seized under an identical warrant application from a co-defendant’s house, appellant argues that the district court in this case erred in coming to a different conclusion. Because there was sufficient evidence in the application to support a finding of probable cause to search appellant’s residence for controlled substances, we affirm.

FACTS

In late March 2001, Minnesota Bureau of Criminal Apprehension (BCA) Special Agent Koneczny spoke with BCA confidential informant CI-X-1779 (CI-X), who reported that appellant David Bolander was manufacturing and selling methamphetamine from his residence on Restormel Street in Duluth. CI-X had provided reliable and accurate information to Agent Koneczny at least five times in the past.

In April 2001, a known citizen informant (CI-4) provided information to the police that Bolander was supplying methamphetamine to one of CI-4’s family members and that Bolander was manufacturing the drug in Bolander’s basement. CI-4’s knowledge was not first hand; the information came from the family member.

In April 2002, a cooperating individual (CI-6) identified both Bolander and Michael Waino as manufacturing methamphetamine at each of their residences. CI-6 gave detailed information that Bolander was living in a blue house on Restormel Street with a garage on the property and a fence around the residence. Special Agent Koneczny, through drive-by surveillances, corroborated that Bolander’s house was blue, had a detached garage, and the property had a fence around it. In addition, water and gas records confirmed that 3216 Restormel Street was Bolander’s residence. On April 30, 2002, Special Agent Koneczy conducted a “garbage pull” at Bolander’s residence, which resulted in the discovery of marijuana plant materials.

On May 2, 2002, Special Agent Koneczy applied for search warrants for both Bolander’s residence and Waino’s residence. The district court found probable cause for the search of both residences and issued the warrants. Methamphetamine and manufacturing equipment were found in both residences.

Bolander’s co-defendant, Waino, challenged the validity of the search warrant at a contested omnibus hearing, and the district court ruled that the search warrant was invalid for lack of probable cause because (1) the affidavit did not contain sufficient evidence of several of the confidential informants’ reliability; and (2) the information was stale. The state appealed and this court affirmed in State v. Waino, No. A03-516, 2003 WL 22846231 at *4 (Minn. App. Dec. 2, 2003), review denied (Minn. Feb. 25, 2004).

Bolander also challenged the validity of the search warrant at a contested omnibus hearing, and the district court ruled that the search warrant for Bolander’s residence was valid. Bolander filed a motion to reconsider in light of this court’s decision in Waino, but the district court denied his motion. Bolander then submitted his case to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), preserving his appeal of the evidentiary ruling. The district court found Bolander guilty. This appeal follows.

D E C I S I O N

Bolander argues that because the affidavit of probable cause for the issuance of the search warrant in this case is identical to the affidavit of probable cause reviewed in State v. Waino, No. A03-516, 2003 WL 22846231 (Minn. App. Dec. 2, 2003), review denied (Minn. Feb. 25, 2004), this court should follow Waino and conclude that the Bolander search warrant lacked probable cause as well.

Bolander’s argument fails for three reasons. First, unpublished opinions of the court of appeals are not precedential. Minn. Stat. § 480A.08, subd. 3(c) (2002); Vlahos v. R&I Constr. of Bloomington, Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004). Second, in Waino,we were reviewing the district court’s decision to suppress the evidence for clear error. See State v. Kahn, 555 N.W.2d 15, 17 (Minn. App. 1996) (applying clear-error standard to a district court’s pretrial determinations). Here, the district court determined that there was sufficient probable cause to uphold the search. Our standard of review requires us to uphold the determination of probable cause if there is a substantial basis for the determination in light of the totality of the circumstances. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990). Third, and most importantly, this court has cautioned that the danger of mis-citation to an unpublished opinion is great because unpublished opinions rarely contain a full recitation of the facts. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993). The wisdom of that caution is evident here. In Waino, this court did not address the reliability of two of the confidential informants, CI-X and CI-4. See Waino, 2003 WL 22846231, at *3. This court did not discuss these two informants because they provided information relevant only to Bolander, not to Waino. Likewise, in Waino, the reliability of the other confidential informants was assessed as to the information they provided related to Waino, not Bolander. Plainly, the Bolander affidavit must be considered solely as it relates to a finding of probable cause to issue a search warrant for Bolander’s residence.

Bolander next argues that the totality of the circumstances did not support a finding of probable cause to issue a search warrant for the Bolander residence. The United States and Minnesota constitutions provide that no warrant shall issue without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. With limited exceptions, a search is lawful only if it is conducted pursuant to a valid search warrant issued by a neutral and detached magistrate upon a finding of probable cause. Minn. Stat. § 626.08 (2002); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). To determine whether probable cause exists, Minnesota has adopted the United States Supreme Court’s “totality of the circumstances” test. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). We do not engage in a de novo review, but, giving great deference to the issuing judge’s finding of probable cause, we limit our review to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). A “substantial basis” in this context means a “fair probability,” given the totality of the circumstances. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). Thus, we consider whether, according to all the information in the affidavit, including statements as to 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.” Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332).

When a search warrant is based on an informant’s tip, this court examines, among other things, the informant’s veracity and basis of knowledge to determine whether the information supports a finding of probable cause. Ward, 580 N.W.2d at 71. Courts prefer recent, first-hand observation of incriminating conduct by reliable informants. Id. The reliability of an informant can be established by an explicit statement in an officer’s affidavit that the informant has previously given police accurate information. Id. Here, Special Agent Koneczny explicitly stated in his affidavit that he knew “from working with BCA Informant [CI-X] that this person has provided reliable and accurate information to [him] in at least five different drug investigations involving the sale and use of methamphetamine.” Special Agent Koneczny established CI-X’s reliability and thus CI-X’s statements regarding Bolander’s manufacturing and selling of methamphetamine were also reliable.

The affidavit, however, fails to establish the reliability of CI-4. Special Agent Koneczny’s affidavit states that CI-4 is a known citizen informant. Even though a “first-time citizen informant who has not been involved in the criminal underworld is presumed to be reliable,” id., 580 N.W.2d at 71, the affidavit is silent as to whether CI-4 was a first-time informant, had been involved in criminal behavior, or had previously provided reliable information to officers. Because the affidavit fails to establish the reliability of CI-4, the information provided by this informant is not shown to be reliable.

CI-6 provided both first- and second-hand knowledge about both Bolander and Waino, and is best characterized as an informant who supplied statements against his or her penal interest. While courts are reluctant to give weight to information obtained against an informant’s penal interest, warrants have been upheld when the informant’s statements against interest have some corroboration or other indicia of reliability. See id., 580 N.W.2d at 71–72. CI-6 did not come forward voluntarily. Thus, in order to establish CI-6’s reliability, the affidavit must show that some of the statements made by CI-6 were independently corroborated. In Waino, this court found the information supplied by CI-6 to be unreliable, stating that “[a]lthough the affidavit indicates that the officers attempted to independently corroborate the information provided by confidential informant 6 through surveillance of the residence of David Bolander, another alleged supplier of methamphetamine, and a search of the garbage from Bolander’s residence, the officer’s attempts failed.” 2003 WL 22846231, at *3.

But the officer’s failure to corroborate the information CI-6 supplied regarding Waino does not automatically mean that the officer’s attempts failed to corroborate the information CI-6 supplied regarding Bolander. The corroboration of even minor details can enhance the credibility of an informant’s information where the police know the informant’s identity. State v. Wiberg, 296 N.W.2d 388, 396 (Minn. 1980). Here, CI-6 provided detailed information about Bolander’s residence: that it was a blue house on Restormel Street with a garage on the property and a fence around the residence. Special Agent Koneczny, through drive-by surveillances, corroborated that Bolander’s house was blue, the house had a detached garage, and the property had a fence around it. Police also confirmed through water and gas records and the license plate on the vehicle parked at the residence that 3216 Restormel Street was Bolander’s residence. Because officers corroborated several minor details provided by CI-6, this informant’s statements about Bolander’s manufacturing and selling of methamphetamine at his residence are reliable.

In a further attempt to corroborate information obtained from the informants, on April 30, 2002, Special Agent Koneczny conducted a “garbage pull” at Bolander’s residence. Significantly, the police did not conduct a “garbage pull” at the Waino residence. While the garbage search did not produce any clear indicia of methamphetamine production, it did result in the discovery of marijuana plant materials. Contraband seized from a garbage search can provide an independent and substantial basis for a probable-cause determination. See State v. Papadakis, 643 N.W.2d 349, 356 (Minn. App. 2002) (finding that spoon with burn marks and plastic bag containing cocaine residue were sufficient to establish probable cause for search). Most recently, in State v. McGrath, this court concluded that residual amounts of marijuana found in garbage searches supported a reasonable expectation that more marijuana or other evidence of criminal activity would be found on the premises. 706 N.W.2d 532, 544 (Minn. App. 2005).

Probable cause to issue a search warrant requires a fair probability to believe that contraband or evidence of a crime will be found in the location to be searched. Harris, 589 N.W.2d at 788; Zanter, 535 N.W.2d at 633. Here, in addition to methamphetamine, the search-warrant application and affidavit sought other controlled substances, including marijuana and drug paraphernalia. While the discovery of marijuana does not directly corroborate any of the confidential informants’ information regarding Bolander, it does strengthen the probability that illegal drugs would be found on Bolander’s property. This provided an independent and substantial basis for establishing probable cause to issue a search warrant for that residence. See McGrath, 706 N.W.2d at 544.

Our probable-cause analysis requires us to examine two final issues: (1) the staleness of the evidence used to support the probable cause determination; and (2) the nexus between the alleged crime and the particular place to be searched. A search warrant affidavit must supply specific facts to establish a “direct connection, or nexus,” between the crime alleged and the place to be searched, “particularly in cases involving the search of a residence for evidence of drug activity.” State v. Souto, 578 N.W.2d 744, 747–48 (Minn. 1998). Because a stale factual basis may invalidate a search warrant, the affidavit also must supply proof of facts so closely related in time to the issuance of the search warrant as to justify a finding of probable cause at the time the warrant is issued. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). Factors such as “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” are relevant to our consideration of whether the information supporting the search warrant is stale. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990).

Here, some of the evidence obtained from the various informants was arguably stale. The evidence from CI-X, for example, was obtained in March 2001. Although there was other information in the record to suggest that there was ongoing criminal activity at Bolander’s home, the information from CI-X was over a year old—considerably undermining its reliability. But unlike Waino, where much of the informant information was more than a year old, see Waino, 2003 W.L. 22846231 at *4, some of the evidence against Bolander was much more recent. For example, the evidence from CI-6 was obtained in April 2002, only a few weeks before the search warrant was issued. Moreover, police conducted the “garbage pull” indicating possession of marijuana two days before applying for the search warrant. This evidence was not stale. In addition, this evidence established a “direct connection, or nexus, between the alleged crime and the particular place to be searched” necessary to establish probable cause. DeWald, 463 N.W.2d at 747.

Based on the totality of the circumstances, there was a fair probability that illegal drugs were located at the Bolander residence. Thus, the district court had a substantial basis for concluding that probable cause existed for the search of Bolander’s home.

Affirmed.