A05-480

State of Minnesota,

Respondent,

vs.

Justin Patrick Allen Weston,

Appellant.

Filed May 30, 2006

Affirmed

Willis, Judge

Brown County District Court

File No. K4-04-189

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

James R. Olson, Brown County Attorney, John L.R. Yost, Assistant County Attorney, 519 Center Street, New Ulm, MN 56073-0428 (for respondent)

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

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

WILLIS, Judge

On appeal from convictions of conspiracy to manufacture methamphetamine and fourth-degree controlled-substance crime, appellant argues that his convictions must be reversed because (1) the district court erred by refusing to suppress evidence seized during a search when the search-warrant application did not provide facts that justified a nighttime search and (2) the cumulative effect of the district court’s evidentiary errors denied him his fundamental right to a fair trial. Because we determine that the application supported a warrant that authorized a nighttime search and that any evidentiary errors do not warrant reversal, we affirm.

FACTS

On February 17, 2004, Officer Dan Louwagie of the Brown/Lyon/Redwood County Drug Task Force, who was acting as an undercover agent, was introduced to appellant Justin Patrick Allen Weston by a “cooperating individual.” The three met at Weston’s apartment to discuss the possibility that Louwagie might purchase methamphetamine from Weston. Officer Louwagie testified that, at this meeting, Weston told him that Weston knew individuals who manufactured methamphetamine and asked Officer Louwagie if he could acquire a gallon of anhydrous ammonia for him in exchange for a half-ounce of methamphetamine.

Later that week, Officer Louwagie telephoned Weston to ask if Weston could “hook [Louwagie] up” with some drugs; the two arranged to meet on February 23, 2004, at Weston’s apartment. At the meeting, Louwagie was wearing a device that transmitted his conversation with Weston to Officer Jeffrey Hohensee of the New Ulm Police Department. Weston sold half a gram of methamphetamine to Louwagie and told him that he could get more in about four hours because his “guy was going to be cooking.” Officer Louwagie testified that he then offered to obtain some pseudoephedrine pills if Weston’s “guy” wanted them; Weston replied that he would check to see if his “guy” needed any. Officer Hohensee then followed Weston and watched him enter a residence. After summoning additional officers to watch the residence, Officer Hohensee contacted the county attorney’s office to get a warrant authorizing a nighttime search.

At 6:30 p.m., Weston called Officer Louwagie and told him that “[w]e [are] going to be cooking up a big batch” and that he would call him when they were finished. At approximately 10:15 p.m., New Ulm officers executed the search warrant, which had been obtained at 9:45 p.m., and found a number of items relating to the manufacture of methamphetamine, including a coffee grinder with white residue in it, bags of ground-up pills, blister packs, lithium batteries, a fire extinguisher with an attached black hose that tested positive for anhydrous ammonia, tubing, soda bottles, Heet containers, coffee filters, and camping fuel. Officers also found several people in the residence, including Weston, who was five feet away from people who were grinding pills. Weston, along with the others, was arrested. During his police interview, Weston admitted that he sold drugs but denied any involvement with the manufacture of the methamphetamine.

In separate complaints, the state charged Weston with conspiracy to manufacture methamphetamine, in violation of Minn. Stat. งง 152.021; 152.096, subd. 1 (2004); and with fourth-degree controlled-substance crime (sale), in violation of Minn. Stat. ง 152.024 (2004). At a contested omnibus hearing, Weston moved to suppress the evidence found during the execution of the search warrant, arguing that the application for the warrant did not contain sufficient facts to justify a nighttime search. The district court denied Weston’s motion.

Before trial, Weston and the state agreed to try the charges of conspiracy and fourth-degree controlled-substance crime together. A jury found Weston guilty of both charges. This appeal follows.

D E C I S I O N

Weston argues that the search-warrant application did not provide facts necessary to justify a nighttime search, and, thus, the district court erred by refusing to suppress the evidence seized during the search. And because his conviction was based on the seized evidence, he argues that his conviction must be reversed.

When the material facts are not in dispute, this court independently reviews whether evidence needs to be suppressed because of an insufficient search-warrant application. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). A search warrant may be executed only between the hours of 7:00 a.m. and 8:00 p.m., unless the issuing court determines from facts in the application that “a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. ง 626.14 (2004). The Minnesota Supreme Court has interpreted the statute to require a showing that the “warrant can only be executed successfully in the nighttime.” State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978). The applicant must rely on more than boilerplate language or blanket allegations “that could be made in almost any case” to make a showing sufficient to justify inclusion of the nighttime-search clause. See id.

In Officer Hohensee’s affidavit requesting a warrant that authorized a nighttime search, he stated:

Attached as exhibit A is a narrative of an ongoing investigation of the manufacture and sale of methamphetamine and the specific facts upon which affiant has reason to believe that persons are manufacturing methamphetamine at the premises described herein. Affiant also requests that the search be conducted after 8:00 p.m. to allow officers to seize the drugs and manufacturing equipment and ingredients before the persons involved are able to clean the premises and remove the drugs for sale.

Weston argues that this language is boilerplate and similar to language that was found insufficient in Garza v. State, 632 N.W.2d 633, 638-39 (Minn. 2001), and State v. Hohneke, No. C7-02-1400, 2003 WL 21146814, at *4-*5 (Minn. App. May 20, 2003). In Garza, this court held that an application for a search warrant did not contain sufficient facts to justify an unannounced entry when the only expression of need for such a search was a statement that “[p]ersons involved in Drug trafficking will destroy evidence . . . [and] will use violence” and the warrant provided no particularized facts of dangerousness, futility, or destruction of evidence if the search of the residence were announced. 632 N.W.2d at 638-39. In Hohneke, this court determined that an application for a search warrant does not establish sufficient justification for a nighttime search if, for example, it simply states that the affiant “knows from previous police experience narcotic traffickers often conduct their business during nighttime hours in an effort to mask their business from neighbors and police, and therefore have larger quantities of narcotics and contraband on hand.” 2003 WL 21146814, at *4-*5.

But based on the entire application at issue here, Officer Hohensee stated sufficient particularized facts to justify issuing the warrant for a nighttime search. Weston does not discuss exhibit A, which was attached to and made part of the application. That exhibit indicates that (1) at 5:49 p.m. on the day of the search, Weston had sold Officer Louwagie methamphetamine and that during this meeting, Weston told Officer Louwagie that his “source was currently cooking another batch of methamphetamine and it would take four hours”; (2) Weston then told Officer Louwagie that he was going to leave his residence and go to the “methamphetamine cook” and would call him later; (3) Officer Hohensee followed Weston and saw him enter the residence described in the application; (4) when Officer Hohensee did a “drive by” of the residence, he saw lights on in an unfinished basement and a fan in the basement window; and (5) at approximately 6:30 p.m., Officer Louwagie received a call from Weston, who told him that they were going to “cook” a large batch of methamphetamine and that Weston could sell Officer Louwagie more.

The allegations in the application for the warrant indicate that the “methamphetamine cook” was to finish at approximately 10:00 p.m. Thus, when the search warrant was authorized at approximately 9:45 p.m., there was reason to believe that the “cook” would soon finish and that the persons involved would remove their manufacturing equipment and the finished product. Because the warrant application included particularized facts that showed the need for immediacy to protect the “loss, destruction, or removal” of the evidence, we determine that it supported a warrant for a nighttime search. See Minn. Stat. ง 626.14. The district court did not err by refusing to suppress the evidence seized in the search.

II.

Weston argues that the cumulative effect of the district court’s evidentiary errors entitles him to a new trial. An appellant is entitled to a new trial if the district court’s evidentiary errors, taken cumulatively, had the effect of denying the appellant a fair trial. See State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998). “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). If a district court has erred by admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial. Id.

Testimony Regarding Methamphetamine Labs

Officer Hohensee testified that a police clean-up of a methamphetamine lab is a dangerous process and that because the police have to dispose of the equipment found as hazardous material, “we can’t bring them in here, all we can do is bring videotapes, photographs.” Weston unsuccessfully objected to this testimony at trial, asserting that it was irrelevant. Weston argues that the district court abused its discretion by allowing this testimony because “[s]uch testimony did not serve the purpose of helping the jury determine whether [Weston] conspired with others to manufacture methamphetamine” and the prejudicial effect of the testimony substantially outweighed any relevancy and “likely distracted the jury from its job of determining [Weston’s] guilt.” But the testimony was not irrelevant; it explained why the state did not introduce as evidence the items seized from the methamphetamine lab.

Weston also contends that, during Officer Hohensee’s testimony, the jury was “unnecessarily exposed” to a detailed explanation of the methamphetamine-manufacturing process. And Weston asserts that the following statements were both irrelevant and inflammatory: (1) because retail stores in the area have been asked to notify Officer Hohensee if people purchase more than two packages of pseudoephedrine pills, some people will try to “steal what they can”; and (2) “[y]ou don’t need to have a chemistry degree to cook methamphetamine. And in all reality, most of the people don’t even have high school degrees.” Weston did not object to this testimony at trial. “[R]eview of unobjected-to errors is discretionary” and is limited to review for plain error. State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998). Plain error requires: (1) error; (2) that is plain; and (3) that affects substantial rights. Id. at 740. The third prong is satisfied if the error affected the outcome of the case. Id. at 741.

We determine that the admission of Officer Hohensee’s unobjected-to testimony was not plain error. Officer Hohensee’s testimony regarding the methamphetamine-manufacturing process was relevant to provide background and to explain the incriminating nature of the evidence found in the residence where Weston was arrested. We conclude that Officer Hohensee’s statement that most methamphetamine cooks are not high-school graduates was irrelevant, but it does not satisfy the third prong of the plain-error test—that the error affect substantial rights—because we conclude that there is no reasonable likelihood that the error affected the jury’s verdict.

Testimony Regarding Complaints about Weston

Weston argues that it was error for the jury to hear Officer Hohensee’s testimony that he began investigating Weston after he “had received complaints on Mr. Weston, that he was selling narcotics.” In criminal cases, law-enforcement officers may testify that a tip was the basis for conducting surveillance, but they may not relate hearsay statements under the guise of explaining how the investigation came to focus on a particular person. State v. Litzau, 650 N.W.2d 177, 182 n.3, 183 (Minn. 2002) (determining that “testimony to the effect that the police had received a tip from a ‘reliable source’ who said that appellant was suspected of possessing and ‘was carrying–transporting drugs’ in his car was inadmissible hearsay” and that an officer’s testimony that he “acted ‘upon information received,’ or words to that effect, should be sufficient” to explain an officer’s investigation). Because Weston failed to object to this testimony at trial, our review is limited to a determination of whether it was plain error to allow the testimony. We conclude that Officer Hohensee’s statement that he received complaints that Weston “was selling narcotics” was inadmissible hearsay. But based on the record, this error does not satisfy the third prong of the plain-error test because there is no reasonable likelihood that the error affected the jury’s verdict.

Testimony Regarding Disposition of Charges Against Co-Conspirators

Weston argues that it was plain error for the district court to allow the jury to hear testimony that one of Weston’s co-conspirators, Jake Ehert, pleaded guilty and that another, Brandon Saffert, had received a reduced sentence in exchange for his cooperation. Although Weston did not object to the statements regarding Ehert’s guilty plea or Saffert’s plea agreement, he now asserts that the district court committed plain error by allowing the jury to hear this testimony.

Generally, evidence of a plea of guilty by an accomplice or evidence of an accomplice’s conviction or acquittal is not admissible to prove the guilt of the accused. State v. Cermak, 365 N.W.2d 243, 247 (Minn. 1985). “Such evidence is not probative of the accused’s guilt and may give rise to the prejudicial inference that, because the accomplice is guilty, so is the accused.” State v. Dillon, 529 N.W.2d 387, 391 (Minn. App. 1995), remanded on other grounds, 532 N.W.2d 558 (Minn. 1995). But the admission of such evidence is not automatically barred. For example, in State v. Cermak, charges against the defendant were not filed for more than one year after the first of her accomplices had been arrested. 365 N.W.2d at 247. In anticipation of the defendant’s argument that the charges against her were questionable because of the delay, the state introduced evidence regarding the prosecution and convictions of three of the defendant’s accomplices. Id. The supreme court determined that the evidence was admissible because it served to provide the jury with additional detail regarding the order in which the parties were charged and prosecuted. Id.

The state asserts that the district court here did not err by admitting testimony regarding Saffert’s plea agreement because the intent of providing the evidence was not to prove Weston’s guilt but to “blunt any cross-examination about possible witness bias.” Saffert provided incriminating testimony against Weston. Because the testimony regarding Saffert’s plea agreement showed that the agreement required Saffert to provide information regarding other drug manufacturers in the area and did not require Saffert to testify against Weston, we agree with the state’s assertion that the testimony was not introduced to prove Weston’s guilt and, thus, was not admitted in error. The state concedes, however, that the testimony regarding Ehert’s guilty plea was improperly admitted. But because there was overwhelming evidence of Weston’s guilt, we determine that the one isolated reference regarding Ehert was not error affecting the outcome of the case.

Because we reject Weston’s argument that the court’s evidentiary rulings were erroneous, we conclude that he is not entitled to a new trial under a cumulative-effect-of-error theory.

Affirmed.