This opinion will be unpublished and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

A05-1184

 

 

State of Minnesota,

Respondent,

 

vs.

 

Rick Lee Semon,

Appellant.

 

 

Filed June 20, 2006

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

 

Beltrami County District Court

File No. K9-04-928

 

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

 

Timothy R. Faver, Beltrami County Attorney, David P. Frank, Assistant County Attorney, Judicial Courts Annex, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601-3071 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

In this appeal from his conviction of fifth-degree controlled-substance offense, appellant Rick Lee Semon argues that the search-warrant application lacked probable cause and that the district court failed to obtain appellant’s waiver of his rights associated with an adversarial trial.  Because there was probable cause supporting the search-warrant application, we affirm the district court’s denial of appellant’s motion to suppress the evidence seized.  Because the district court failed to obtain appellant’s waiver of his rights associated with an adversarial trial, we reverse and remand to the district court.

D E C I S I O N

I.

Appellant argues that the search-warrant application did not contain probable cause and, therefore, evidence seized during the search should have been suppressed.

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Appellate review of a district court’s determination of probable cause to issue a search warrant is limited to ensuring that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  On review, courts will resolve marginal cases in favor of issuance of the warrant.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).

Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched.  State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970). 

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including 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. 

 

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  When considering an application for a warrant under the totality-of-the-circumstances standard, courts view all components of the application together to determine whether, as a whole, the application merits a finding of probable cause.  Id.

Here, probable cause was based on information from a concerned citizen, who had never made a police report before and provided personal identification and contact information.  The concerned citizen informed a Beltrami County deputy sheriff, who was assigned to a drug task force, that there was a possible methamphetamine lab located at a particular address in Tenstrike, Minnesota.  The informant had been in the residence within the last 72 hours and had observed a strong, undistinguishable odor, a “brown dish containing a reddish crystal like substance and syringes,” and a “skinny and gaunt” woman who had “burn marks on her face” and “rotting” teeth.   Additionally, the informant described the residence as a white trailer home with brown trim and three vehicles parked in the driveway.

The deputy drove by the residence and verified that there was a trailer at the address and identified one of the vehicles.  Despite appellant testifying that his trailer was painted green with white trim on the day the search warrant was executed, appellant was residing in a trailer at the address. 

            Appellant concedes that the concerned citizen is presumed credible.  See Harris, 589 N.W.2d at 789 (stating that statements from citizens may be presumed to be credible).  But appellant argues there are innocent explanations for the things observed at the trailer.  Regardless of possible innocent explanations, a reasonable person considering the totality of the circumstances could form the opinion that a methamphetamine lab was being operated at the residence.  Specifically, based on the deputy’s experience in the drug task force, burns can be caused by the highly-explosive process of manufacturing methamphetamine, long-term methamphetamine use causes rotting teeth and a “skinny and gaunt” appearance, the red-phosphorus-method of methamphetamine manufacturing commonly creates a strong, undistinguishable odor, and syringes are often used to ingest methamphetamine and other controlled substances.  Although reasonable minds may differ on whether probable cause existed, the facts support a fair probability that contraband or evidence of a crime would be found at appellant’s residence.   

The deputy verified the accuracy of the concerned citizen’s information and confirmed that the concerned citizen did not have a criminal history.  Additionally, the deputy performed drive-by surveillance and corroborated the description of the residence and one of the vehicles.  While the deputy’s corroboration was not of key details related to controlled substances, the corroboration did lend credence to the concerned citizen’s tip.  See Wiley, 366 N.W.2d at 269 (providing that while corroboration of informant’s statement that woman named Clare resided at particular address and parked 1973 Mercedes in front of that address was not corroboration of key detail, it did lend credence to informant’s tip).

The district court did not err in finding probable cause and denying appellant’s motion to suppress the evidence seized.

II.

The parties agree that appellant’s conviction must be reversed because the district court never obtained a waiver of his rights associated with an adversarial trial.  A stipulated-facts trial requires written or oral acknowledgement and waiver of the defendant’s “rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.”  Minn. R. Crim. P. 26.01, subd. 3.  A valid waiver under this rule requires that the defendant waive each right explicitly.  State v. Halseth, 653 N.W.2d 782, 785–86 (Minn. App. 2002) (explaining that more than just right to jury trial must be waived under criminal rules).

Here, appellant agreed to proceed with a stipulated-facts trial but was only asked if he had enough time to talk to his attorney.  Because this waiver was inadequate, appellant’s conviction is reversed and remanded to the district court. 

            Affirmed in part, reversed in part, and remanded.