A06-1158

State of Minnesota,

Respondent,

vs.

Larry NMN Cregg,

Appellant.

Filed May 29, 2007

Affirmed

Worke, Judge

Hennepin County District Court

File No. 05028880

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, 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

WORKE, Judge

On appeal from a conviction of fifth-degree controlled substance offense, appellant argues that a search warrant, based on reports from anonymous citizens of suspected narcotics trafficking occurring at appellant’s residence, police observation of the reported activity, and a controlled buy at the house, lacked sufficient probable cause when it was executed five days after it was issued. We affirm.

D E C I S I O N

Appellant Larry NMN Cregg argues that the district court erred by not suppressing the evidence seized from his person during execution of the search warrant at his residence. In reviewing pretrial orders on motions to suppress evidence, this court may independently examine the facts and determine whether, as a matter of law, the district court erred. State v. Stoskopf,644 N.W.2d 842, 844 (Minn. App. 2002). But “when reviewing a district court’s probable cause determination made in connection with the issuance of a search warrant, an appellate court should afford the district court’s determination great deference .” State v. Rochefort,631 N.W.2d 802, 804 (Minn. 2001). This court’s task is to ensure that there was a “substantial basis for concluding that probable cause existed.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). The district court’s factual findings are reviewed for clear error. State v. Horner,617 N.W.2d 789, 795 (Minn. 2000).

Appellant argues that the probable cause to search his residence had grown stale when the search was executed five days after the warrant was signed. Appellant’s claim requires a two-part analysis: whether the delay violated the statutes dealing with delays in executing a search warrant and whether because of the delay probable cause to search no longer existed when the search was executed. State v. Yaritz, 287 N.W.2d 13, 15 (Minn. 1979).

“[A] search warrant must be executed and returned to the court which issued it within ten days after its date. After the expiration of this time, the warrant is void unless previously executed.” Minn. Stat. § 626.15(a) (2004). Here, the five-day delay in executing the search warrant did not violate Minnesota statutes. But the delay may have rendered the search unconstitutional.

“Whether a delay in executing a search warrant is unconstitutional depends on whether the probable cause recited in the affidavit still exists at the time of execution of the warrant—that is, whether it is still likely that the items sought will be found in the place to be searched.” Yaritz, 287 N.W.2d at 16. Factors considered in determining whether it is likely that items sought will still be found in the place to be searched include: the character of the crime, character of the criminal, character of the thing to be seized, and character of the place to be searched. Id.at 16-17. In Yaritz, the supreme court held that a six-day delay was reasonable because the affidavit supporting the search-warrant application indicated that the defendant was in the business of selling drugs and had been doing it on a continuing basis. Id.at 17.

This case is very similar to State v. King, in which an officer applied for a warrant to search King’s apartment for narcotics, weapons, and evidence of drug sales. State v. King, 690 N.W.2d 397, 399 (Minn. App. 2005), review denied (Minn. Mar. 29, 2005). The affidavit supporting the search-warrant application indicated that the affiant received citizen complaints that drugs were being sold out of King’s apartment, conducted a controlled buy three days before applying for the warrant, and relayed the confidential reliable informant’s (CRI) description of the seller. Id. Officers executed the search warrant seven days after the warrant was issued. Id. This court held that all of the affidavit’s components showed that King was in an ongoing business of selling drugs from his apartment. Id.at 401. This court determined that it was reasonable to conclude that the probable cause that existed at the time the warrant was issued continued to exist when the warrant was executed. Id.at 402.

Here, on May 4, 2005, a police officer applied for a warrant to search appellant’s residence. The district court signed the search warrant on May 5, 2005. On May 10, 2005, police officers executed the search warrant at appellant’s residence. During execution of the search warrant, appellant arrived home and was searched. Officers found a substance in his pant pocket that tested positive for cocaine.

In his search-warrant application, the officer indicated that he received numerous complaints from anonymous citizens who suspected narcotics trafficking occurring at appellant’s residence. The citizens reported observing numerous people come to appellant’s address, enter the rear door, stay for a very short period of time, and then leave the area and not return. The officer set up surveillance on appellant’s residence and observed the activity the citizens reported.

The officer also directed a CRI to purchase narcotics from someone inside appellant’s residence. The controlled buy was set up within 72 hours of the officer applying for the search warrant. The officer searched the CRI and found no contraband, weapons, or currency; gave the CRI pre-recorded money; and instructed the CRI to buy crack cocaine. The officer watched the CRI enter appellant’s residence through the rear door. Minutes later, the CRI returned and produced suspected crack cocaine, which tested positive for cocaine. The CRI was again searched and the officer did not find any contraband, weapons, or currency. The CRI told the officer that appellant approached the CRI and the CRI asked appellant for crack cocaine and appellant handed the CRI crack cocaine in exchange for money. The CRI also reported that appellant rents the basement of the residence to people by the hour or day in order to get high from the narcotics that appellant sells. The CRI positively identified appellant as the individual who sold the crack cocaine.

The search-warrant application, viewed in its entirety, supports probable cause existing five days after the search warrant was issued because like King, the affidavit showed that appellant was in an ongoing business of selling drugs from his residence. 690 N.W.2d at 401. Therefore, it was reasonable to conclude that the probable cause that existed at the time the warrant was issued continued to exist when the warrant was executed. The district court did not err by denying appellant’s motion to suppress.

Appellant submitted a pro se supplemental brief that essentially asks us to reweigh witness credibility. But appellant had a jury trial and we leave credibility determinations to the jury. See State v. Pieschke,295 N.W.2d 580, 584 (Minn. 1980) (“[W]eighing the credibility of witnesses is the exclusive function of the jury.”).

Affirmed.