STATE OF MINNESOTA

IN COURT OF APPEALS

A06-670

State of Minnesota,
Respondent,

vs.

Matthew Harvey Derby,
Appellant.

Filed May 22, 2007

Affirmed

Stoneburner, Judge

Pipestone County District Court

File No. 59K904000343

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

James E. O’Neill, Pipestone County Attorney, Box 128, Pipestone, MN 56164 (for respondent)

John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

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

STONEBURNER, Judge

Appellant challenges his conviction of fifth-degree controlled-substance offense, arguing that the district court erred by denying his motion to suppress evidence obtained in a warranted search because omissions of material facts from the warrant application invalidated the warrant. We affirm.

FACTS

On August 12, 2004, Pipestone County Deputy Sheriff Dale Mathews, a 25-year veteran law-enforcement officer, arranged a controlled buy of 2 1/2 pounds of methamphetamine between an undercover officer and Jose Wilmer Callejas. Callejas arrived at the pre-arranged location and indicated that he did not have enough methamphetamine to sell at that time, so the undercover officer arranged to purchase methamphetamine from Callejas later in the day in Worthington. Callejas, followed by law enforcement officers in surveillance vehicles, then drove directly to appellant Matthew Harvey Derby’s home at 713 North Hiawatha Avenue in Pipestone. Callejas entered the house and came out approximately 12 minutes later. Officers then followed Callejas to Worthington and arrested him just after methamphetamine was delivered to him by another person at the location of the arranged transaction.

In a subsequent interview, Callejas told Mathews that he had delivered one gram of methamphetamine to Randy Lee Stevens at 713 North Hiawatha Avenue that day and had delivered methamphetamine to Stevens 4–6 times in the previous nine months. Mathews went to 713 North Hiawatha the following day and noticed a surveillance camera mounted on the roof overhang and pointed towards the door.

On August 13, 2004, Mathews applied for a warrant to search 713 North Hiawatha Avenue, the person of Randy Lee Stevens, and Stevens’s vehicle. In the warrant application, Mathews recited the above facts as the basis of his belief that methamphetamine; weapons; and items of value, including U.S. currency gained from the sale or transfer of drugs, could be found on the property or person described in the application. Mathews stated in the warrant application that, in his experience, the surveillance equipment he saw at the residence “is used to alert suspects to the arrival of [l]aw [e]nforcement giving them the opportunity to destroy evidence.” The warrant was issued.

Mathews and other deputies executed the warrant the same day. Officers found Randy Stevens in a bedroom and recovered mail addressed to him at the residence. The door leading to the upstairs of the residence was locked. Stevens said that the door led to Derby’s bedroom, and he did not have a key. Police broke through the door and went upstairs where they found pay stubs confirming Derby’s address as 713 North Hiawatha. The officers seized items containing methamphetamine in Derby’s bedroom.

Derby was charged with fifth-degree controlled-substance crime in violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2004), and possession of drug paraphernalia in violation of Minn. Stat. § 152.092 (2004). Derby moved to suppress all evidence obtained during the search on the grounds that (1) the search warrant lacked probable cause; (2) Mathews deliberately or recklessly omitted material facts from the warrant application; and (3) officers exceeded the scope of the warrant when they searched Derby’s bedroom.[1] The district court denied Derby’s motion to suppress, and the case was submitted on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Derby guilty of fifth-degree controlled-substance crime and stayed adjudication pursuant to Minn. Stat. § 152.18 (2004), placed Derby on probation for five years, and ordered him to serve 30 days in the county jail and pay a fine of $500. The jail time was stayed pending the outcome of this appeal.

D E C I S I O N

On appeal, Derby argues that the warrant should be invalidated, the evidence suppressed, and his conviction vacated because Mathews omitted material facts in the affidavit supporting the warrant application, and the omitted material facts would have precluded issuance of the warrant. 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 not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). In determining whether an affidavit establishes probable cause, we defer to the issuing judge, “but this deference is not boundless.” State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). We leave credibility determinations to the district court and will not overturn those determinations unless they are clearly erroneous. Id.

“[T]he affiant must provide the magistrate with sufficient factual information regarding the circumstances which the affiant believes establish probable cause.” State v.

Doyle,336 N.W.2d 247, 249 (Minn. 1983). “A search warrant may be held void and the fruits 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.” Smith, 448 N.W.2d at 555(citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676-77 (1978)).

“The Minnesota Supreme Court has extended Franks to apply to material omissions from the affidavit. . . . The test is whether, after supplying the omissions, the affidavit established probable cause.” Id.(citation omitted). “When determining whether a search warrant is supported by probable cause, we do not engage in a de novo review.” State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Rather, our review is limited “to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed.” Id. “A substantial basis in this context means a fair probability, given the totality of the circumstances.” Id.(quotation omitted).

In cases primarily involving factual misstatements or misrepresentations—as opposed to factual omissions—in warrant applications, the determination of the validity of the warrant has been based on (1) whether the misrepresented or misstated facts were material to establishing probable cause and (2) whether the facts were deliberately or recklessly misrepresented or misstated in the affidavit. State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977); McGrath, 706 N.W.2d at 540;see also State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (applying the two-part test set forth in Causey where it was alleged that police misrepresented facts in an affidavit). In the context of misrepresentations in warrant applications, we have noted that not all material misrepresentations should invalidate a warrant because “an officer may have reasonable grounds to believe the object of his search is on the premises to be searched, even though he has innocently misrepresented a fact material to that determination.” Causey, 257 N.W.2d at 292. “An innocent misrepresentation of material fact thus does not negate probable cause and therefore does not contravene the Fourth Amendment.” Id.

In cases involving a challenge to a warrant based on facts omitted from a warrant application, the supreme court has articulated a different test. See Doyle, 336 N.W.2d at 250 (stating that once a defendant has established reckless or intentional omission of facts, the trial court should supply the omissions and decide whether the affidavit established probable cause); see also Smith, 448 N.W.2d at 555 (citing Doyle and stating that “[t]he test is whether, after supplying the omissions, the affidavit established probable cause”). Because this case involves allegations of omissions, we analyze it under the test set out in Smith. But we note that under either test, unless the affiant’s action was reckless or intentional, the warrant will not be invalidated.

Derby contends that Mathews recklessly and/or intentionally failed to state in the affidavit that (1) he did not know if Randy Lee Stevens lived at 713 North Hiawatha or would be at the home on the day of the search; (2) he did not know whether the previous drug sales to Stevens had occurred at 713 North Hiawatha; (3) he did not know whether the drugs that Callejas sold to Stevens the previous day would still be in the home; and (4) he had no evidence that there would be weapons, valuable items, or U.S. currency in the home. Mathews’s omnibus testimony confirmed that he did not know with certainty whether Randy Stevens lived at 713 North Hiawatha Ave, whether Stevens would be at the house on August 13, whether the prior sales had occurred at that address, or whether the one gram of methamphetamine delivered to Stevens on August 12 would still be in the house on August 13. Mathews testified that his assertion that there was probable cause to find weapons, U.S. currency, and other “items of value” was based on his experience that those things often go along with drugs.

The district court found that there was “no evidence that Deputy Mathews acted intentionally or recklessly in drafting the affidavit.” Because on this record, we cannot conclude that this finding is clearly erroneous, and because we defer to a district court’s credibility determinations, we must conclude that Mathews did not intentionally or recklessly omit information from the warrant application. See Smith, 448 N.W.2d at 555 (stating that determinations of credibility of witnesses at the omnibus hearing are left to the trial court and will not be overturned unless clearly erroneous).

Because any omissions by Mathews were not reckless or intentional, the omissions do not invalidate the warrant, and the district court correctly denied Derby’s motion to suppress.

Affirmed.

[1] On appeal, Derby does not challenge the facial validity of the warrant or the scope of the search.