A05-1598

State of Minnesota,

Respondent,

vs.

Clay Brian Nelson,

Appellant.

Filed October 17, 2006

Affirmed

Hudson, Judge

Freeborn County District Court

File No. K4-04-383

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

Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, Minnesota 56007 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Wright, 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 his conviction of first-degree controlled-substance offense, manufacturing methamphetamine, appellant Clay Nelson argues that the state, relying on a police report, failed to meet its burden of proving the validity of the traffic stop that produced evidence used in obtaining the search warrant for appellant’s residence. Appellant argues that the state failed to rebut the omnibus-hearing testimony of himself and his wife that he committed no traffic violation before the stop. He also argues that the search-warrant application failed to show the basis for a confidential informant’s knowledge and failed to state when he acquired that knowledge, and that the application failed, even when evidence from the traffic stop is considered, to establish probable cause. Because we conclude that the police had a reasonable, articulable basis for the traffic stop and that under the totality of the circumstances, including evidence gained as a result of the stop, probable cause existed to issue the search warrant, the district court did not err in denying the motion to suppress. We also conclude that appellant’s pro se arguments lack merit, and we affirm.

FACTS

Freeborn County sheriff’s deputies obtained and executed a search warrant for the residence of appellant Clay Nelson at 214 South Columbus in Albert Lea, in March 2004. The warrant application detailed, as a basis for the search, information from a confidential reliable informant that appellant was involved in methamphetamine manufacturing at the residence. The informant also stated that another identified person was involved, that he and appellant had other residences, and that they used this residence to make methamphetamine because it provided a safe place, and they did not draw attention to their other residences. The information had been received about a month prior to the execution of the warrant. The warrant application also stated that the other person was arrested in the past month for possession of methamphetamine.

The warrant application referred to a report from the City of Austin police, advising that, on the same day as the warrant application, appellant had been arrested for possession of methamphetamine after his vehicle was stopped. The stop occurred after Target store employees informed police that a person had purchased “a large amount of Sudafed.” When the vehicle was stopped, officers found 256 Sudafed tablets. The warrant application also indicated that the deputy applying for the warrant had driven by the residence, observed appellant’s wife’s car parked there, and noted that all of the windows of the house were covered from the inside and that there was a burning pit in the back yard.

When the warrant was executed, police found 28 grams of material that later tested positive for methamphetamine, as well as paraphernalia commonly used in the manufacture of methamphetamine by the Nazi, or birch, manufacturing method. Appellant was charged with first-degree controlled-substance crime, methamphetamine manufacture; attempted methamphetamine manufacture; possession of methamphetamine; and illegal possession of an explosive or incendiary device.

At an omnibus hearing, appellant moved to suppress evidence recovered in the search, arguing that the warrant lacked probable cause to form a basis for the search of the residence because the informant did not demonstrate a basis for the knowledge and the information was stale. He also challenged the basis for the traffic stop, arguing that police lacked a reasonable, articulable suspicion to stop his vehicle and that the police report of the stop should not be considered as a basis for probable cause absent testimony from the arresting officer. The district court considered the evidence, including the police report, without supporting testimony and denied the motion to suppress. A motion for reconsideration was also denied.

Appellant waived his right to a jury trial but declined a Lothenbach procedure. After a court trial, the district court convicted appellant of the three methamphetamine-related counts. This appeal follows.

D E C I S I O N

In reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in suppressing—or failing to suppress—the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s factual findings under the clearly erroneous standard, but the district court’s legal determinations are reviewed de novo. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).

We review the district court’s determination of probable cause to issue a search warrant to decide whether the issuing judge had a substantial basis to conclude that probable cause existed. State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005). A substantial basis exists when the warrant application establishes a “fair probability,” given the totality of the circumstances, “that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). In examining the sufficiency of an affidavit to establish probable cause under the totality-of-the-circumstances test, a court is to “make a practical, common-sense decision,” reviewing the components of the affidavit together because “[e]ven if each component is judged unsubstantial, 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) (quotations omitted). Appellate courts accord significant deference to a district court’s determination of probable cause to issue a search warrant and do not review that determination de novo. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).

Appellant argues that the district court erred in its probable-cause determination by considering information gained from the traffic stop of his vehicle, which he maintains was invalid because the police lacked a reasonable, articulable suspicion for the stop. The district court considered the legality of the stop for the limited purpose of determining whether the information gained as a result of the stop could be used to support a determination of probable cause for the search warrant. See State v. Hodges, 287 N.W.2d 413, 415–16 (Minn. 1979) (redacting information obtained from illegal search in determining validity of search warrant).

Police may perform a limited investigatory stop if an officer has a reasonable, articulable suspicion of a motor-vehicle violation or criminal activity. State v. Pike, 551 N.W.2d 919, 921–22 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968)). The stop must be based on more than a “hunch,” State v. George, 557 N.W.2d 575, 578 (Minn. 1997), and must not be the “product of mere whim, caprice or idle curiosity,” Pike, 551 N.W.2d at 921. This court reviews de novo the district court’s determination of the legality of a limited investigatory stop. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). The district court’s findings are reviewed for clear error. Id.

Appellant argues that the state bears the burden of calling witnesses at the suppression hearing and that the district court violated appellant’s right to confrontation by relying on the police report of the stop as a basis for its probable-cause determination. But a district court may consider “reliable hearsay” in a determination of probable cause. Minn. R. Crim. P. 11.03. Further, the record shows that, at the hearing, defense counsel did not object to the admission of the report for the purpose of establishing probable cause for the search warrant. Counsel indicated that “[I]t’s not the parts of the report that deal with probable cause that I’m objecting to, it’s all the other stuff that is in there . . . . So that’s why I’m objecting to it.” When the possibility of a continuance to hear the officer’s testimony was mentioned, the attorney stated, “[I]f he wants to call that police officer at another time, that will be his decision to make. I don’t think it’s going to be necessary because the report corroborates what the witnesses are going to say.” Therefore, we conclude that appellant waived any objection to the submission of the report without corroborating testimony from the officer who made the stop.

Appellant also challenges the articulated grounds for the stop. The police report specified, as grounds for the stop, (1) an unidentified Target employee’s report that a person had purchased “a large amount of pseudoephedrine,” and entered a blue Ford Ranger with a certain license plate, and left the premises; and (2) the police officer’s observation that the driver of that vehicle committed a traffic violation by crossing over the center line and weaving back across the fog line. We agree with appellant that the report of the Target employee, taken alone, did not provide reasonable, articulable suspicion to stop the vehicle. Cf. State v. Vereb, 643 N.W.2d 342, 347 (Minn. App. 2002) (holding that police had reasonable, articulable suspicion to stop a vehicle based on combined facts of store employee observing two men purchasing a large number of cold tablets, officer’s knowledge that cold tablets are precursor materials used in the manufacture of methamphetamine, observation of vehicle leaving the store and its direction, and driver’s evasive driving at excessive speed). But we conclude that with the additional consideration of observed illegal driving behavior, the district court did not err in determining that, under the totality of the circumstances, police had a reasonable, articulable basis for the stop.

Appellant cites the omnibus-hearing testimony of appellant and his wife that the car did not cross the center line. But we defer to the credibility determinations of the district court, who found the observation of the police officer, as stated in the police report, to be more credible than the testimony of appellant and his wife. Thus, after the stop was determined to be legal for the purpose of establishing probable cause for the warrant, the evidence gained as a result of the stop—256 tablets of pseudoephedrine—was admissible to support the district court’s determination of probable cause.

Appellant also argues that the warrant application lacked sufficient probable cause because (a) it failed to establish a basis of knowledge for information supplied by a confidential reliable informant and (b) that information was stale. A court considers an informant’s basis of knowledge as a factor in the totality of circumstances when evaluating a probable-cause determination. Wiley, 366 N.W.2d at 268. Here, the supporting affidavit stated that the informant, who had previously provided information to police regarding drug dealing in the Freeborn County area, had made controlled purchases of controlled substances and had specifically provided information about methamphetamine labs where items were recovered showing that methamphetamine had been produced. The affidavit also stated that the informant had received information that appellant was involved in manufacturing methamphetamine at this residence; that another person, Frank Villerreal, was involved; that appellant and Villerreal used this residence because they lived in other residences; and that Villerreal told the informant that they had a safe place to manufacture that did not draw attention to their own residences. The officer signing the affidavit also stated his knowledge that Villerreal had been arrested in the past month for possession of methamphetamine.

Although the affidavit appears unclear about the informant’s personal basis of knowledge, the information received from Villerreal may be used to corroborate the informant’s statement because Villerreal was identified by name and admitted to manufacturing methamphetamine. See State v. Wiberg, 296 N.W.2d 388, 396 (Minn. 1980) (concluding that informant’s veracity was established by declaration against interest coupled with partial corroboration). And the totality-of-the-circumstances test permits “a balanced assessment of the relative weights of all the various indicia of reliability.” Illinois v. Gates, 462 U.S. at 234, 103 S. Ct. at 2330. Thus, the failure of an informant with a history of providing reliable information to set forth the basis of knowledge is not fatal to a determination of probable cause. Id. Therefore, the district court properly considered the informant’s statements as part of the totality of the circumstances in its probable-cause evaluation.

In determining whether the information supporting a search warrant is stale, this court examines: (1) whether there is any indication of ongoing criminal activity; (2) whether the items sought are incriminating; (3) whether the property is easily disposable; and (4) whether the items sought are of enduring utility. State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998). The affidavit provided information that appellant was involved in manufacturing methamphetamine on an ongoing basis. Therefore, the facts that would establish probable cause a month earlier continued to exist so as to support the issuance of the warrant. See State v. Yaritz, 287 N.W.2d 13, 17 (Minn. 1979) (concluding that delay in executing warrant did not constitute constitutional violation rendering stale probable cause to believe that defendant was selling marijuana, when affidavit indicated continuing marijuana sales).

Appellant argues in a pro se supplemental brief that he was deprived of the effective assistance of counsel. A party alleging ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). The reviewing court applies a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 684, 104 S. Ct. at 2065. Appellant maintains that his attorney only moved for dismissal of the case at appellant’s insistence. The record shows, however, that defense counsel argued vigorously at the omnibus hearing for suppression of evidence gained in the search on the basis that the search warrant failed to establish probable cause for the search.

Appellant additionally argues that the court ignored his request for a speedy trial. But the record indicates that the district court set a trial schedule based, in part, on the length of time defense counsel anticipated for trial. We also note that after appellant’s attorney moved later for dismissal based on violation of appellant’s right to a speedy trial, trial was held within about two weeks.

Appellant also maintains that the district court should have released the identity of the confidential reliable informant. But “[w]hen an informant is a mere transmitter of information and not a competent witness to or active participant in the crime, his name need not be disclosed.” Wiley, 366 N.W.2d at 270. Because the record gives no indication that the informant participated in the crime, the district court was not required to disclose the informant’s identity. See State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989) (stating that “a defendant must make a minimal showing of a basis for inquiry that is more than mere speculation” to obtain in camera review) (quotation marks omitted), review denied (Minn. Dec. 29, 1989).

Appellant also requests a mistrial based on the district court’s receipt of a letter from the Freeborn County sheriff, alleging that appellant had threatened the sheriff, the judges, and their families. But the judge who presided over the omnibus hearing recused himself from trial, and there is no indication of prejudice to appellant from the court’s receipt of the letter. Finally, appellant’s allegations of unrelated misconduct by the police officer who made the traffic stop and the Freeborn County sheriff are not relevant to the district court’s determination in this case.

Affirmed.