Harlan Goulett, Allan H. Caplan & Associates, 525 Lumber Exchange, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Ass't County Attorney, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.[*]

In an appeal from an order denying his postconviction petition, Ronnie McCrimmon challenges his first-degree controlled substance conviction, alleging ineffective assistance of counsel. We conclude McCrimmon was not denied the effective assistance of counsel and affirm.

McCrimmon filed a postconviction petition seeking a new trial on several grounds, including ineffective assistance of counsel for failure to challenge the search warrant. The postconviction court denied the petition, concluding that McCrimmon did not have standing to challenge the search warrant and that even if it had been challenged, the lapse of time between the application and execution did not make the warrant impermissibly stale. McCrimmon appeals that determination.

A defendant claiming ineffective assistance of counsel must show that his counsel's representation 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. Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)). This court need not determine "whether [trial] counsel's performance was deficient" if it concludes that the defendant has failed to show prejudice. Gates v. State, 398 N.W.2d 558, 562 n.1 (Minn. 1987) (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

An overnight guest has standing to challenge a search of the residence in which he is a guest. Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S. Ct. 1684, 1689-90 (1990). The record indicates that McCrimmon was a frequent overnight guest at the apartment and that he stored personal belongings there, including a safe deposit key and his temporary drivers license. The postconviction court concluded that because McCrimmon was not present at the apartment when the search warrant was executed and he had not stayed there the night before the warrant was executed, he lacked standing. A frequent overnight guest has a qualitatively different connection to a residence than a temporary social guest, and McCrimmon's standing does not depend on the recency of his last visit nor his presence when the search warrant was executed. See generally State v. Carter, __N.W.2d__ (Minn. Sept. 11, 1997) (holding that overnight stay is not required for standing).

Standing to challenge the validity of the warrant is, however, only the threshold issue. In order to prevail on his claim of ineffective assistance, McCrimmon must show a "reasonable probability" that a motion to suppress would have been successful. See Gates, 398 N.W.2d at 561 (citing Strickland "reasonable probability" standard for general claim of ineffective assistance at trial); cf. State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (to show prejudice from failure to seek suppression, petitioner must show results would have been different). McCrimmon asserts that he has shown a reasonable probability that the evidence would have been suppressed because the warrant was executed nine days after it was approved and was therefore stale.

The issue of staleness is determined by the circumstances of each case. See e.g. State v. Hanson, 355 N.W.2d 328, 329 (Minn. App. 1984) (citing Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138 (1932)). The supreme court has enumerated several relevant factors to be considered. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (listing disposability of property, nature of items, age of informant, and whether activity ongoing). The central issue in determining staleness is whether there was evidence of ongoing criminal activity. See, e.g., State v. Lunsford, 507 N.W.2d 239, 243 (Minn. App. 1993) (evidence of ongoing sexual abuse important factor in making two-year-old information in search warrant fresh rather then "stale") review denied (Dec. 14, 1993); 2 Wayne R. LaFave, Search and Seizure § 3.7(a) at 346 (continuity of offense is single most important staleness factor).

The search warrant application states that police, acting through a confidential informant, had made a controlled buy of cocaine at the apartment within the past 72 hours (up to 12 days before the execution of the search warrant). A search warrant executed within a week of a controlled buy has been held not to be stale when there were indications that the sale was not isolated. State v. Cavegn, 356 N.W.2d 671, 673-674 (Minn. 1984); see also State v. Yaritz, 287 N.W.2d 13, 14-15 (Minn. 1979) (delay of six days held not to make the warrant stale when defendant suspected of possessing marijuana with intent to sell); State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987) (delay of six weeks held not to make the warrant stale when growing crop of marijuana had been seen in house). It may be open to question whether a single controlled buy of a small amount of cocaine would provide probable cause for a search nine days later, but the single controlled buy is not the only fact supporting issuance of the warrant.

The warrant application stated that "several narcotics search warrants" had been executed at the apartment building in the last year resulting in the recovery of narcotics. The application also stated that there had been many complaints of narcotics sales in the apartment building over the last several years and that there were records of "numerous calls to this building and this apartment." The application cited 64 police calls in the past year.

The application references to ongoing criminal activity do not all relate specifically to the apartment that was searched. Cf. State v. Richardson, 514 N.W.2d 573, 580 (Minn. App. 1994) (although search warrant affidavit did not tie drug activity to specific apartment it did tie it sufficiently to defendant personally). The application, however, does state there had been numerous police calls to "this apartment." We evaluate the search warrant application in a common-sense fashion, viewing its components together, not in isolation. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990). The only reasonable inference is that some of the complaints and indicators of ongoing narcotic sales listed in the application that related to the building as a whole were in fact attributable to this particular apartment.

McCrimmon argues that because the police officer who applied for the search warrant admitted that drugs are easily disposable and drug dealers frequently switch locations the information in the search warrant application was stale. We disagree. Probable cause does not require certainty, only facts warranting a person of reasonable caution in believing that contraband or other evidence of crime will be found. See DeWald, 463 N.W.2d at 747 (discussing probable cause to believe items in plain view were evidence of crime). In addition, the search warrant application sought pagers, money, scales and drug-dealing paraphernalia, all items that would not necessarily be disposed of or moved elsewhere even if a dealer temporarily sold from a different location.

We recognize that under Strickland McCrimmon must only show a "reasonable probability" that the suppression motion would have been granted. But the assessment of reasonable probability in this context is not subject to intangible factors; it is based on the search warrant application and other facts of record viewed in the light of the case law. We conclude, given the indication of ongoing narcotics activity at the apartment, that McCrimmon has not shown a "reasonable probability" that the cocaine would have been suppressed as seized under a "stale" search warrant.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.