State v. Souto

Minnesota, Respondent, STATE Appellant. SOUTO, petitioner, Ann

Debra

No. C4-96-1957. Minnesota.

Supreme Court of

May

OPINION GARDEBRING, Justice. appeals

Debra Ann from her convic- Pennington County tion in the District Court for of a controlled substance degree the fifth in violation of Minn.Stat. 3(b) (1996). 152.025, 1(2), subd. The con- resulted from a search of viction residence, pursuant to a that uncov- containing gram ered a vial less than one methamphetamine. challenges sufficiency of the in- applica-

formation contained the warrant tion to establish cause to believe concerning drug trans- or records actions be found at her residence. would Specifically, that the affidavit is ways: following deficient in the it fails to alleged drug establish a nexus between her residence; it on stale activities and her relies information; provide ‍​​‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌‌‌​​​​‌​​​‌​​‌​​​‌​‌‌‌‌​‍and it fails to sufficient regarding hold that there is no informant. Because we for a cause deter- substantial basis incriminating drugs or other mination that be found at the residence at evidence would searched, we reverse the the time it was appeals and vacаte Souto’s convic- court of tion. 8, 1994, Special Agent Ron September

On Bunyan Narcotic Task of the Paul Woolever unit, Force, multi-county anti-drug crime resi- a search warrant on Souto’s executed dence, link- looking drugs and documents for trafficker, Karl suspected her to of ten exe- The warrant was one Heinrichs. day part of an extensive investi- cuted that to 40 drug activity that involved 35 gation of Pennington County. The affi- individuals appli- of the search davit states, pertinent part: catiоn Woolever November On S/A Inspec- Postal spoke United States with Crow, tors, with A1 Eekland Steve Winters, Crookston, appellant. A. for John telling Woolever and Crow Eekland S/A General, III, Attorney Humphrey, Hubert package ad- they intercepted Attorney Ragatz, Assistant by Thomas R. of 1516 Northland dressed to Debbie-Souto General, Olin, Pennington County David M. Falls, MN River Village, # Thief Attorney, respondent. “D”, a return address Carmichael, CA, Way, Edgerton Inspectors Eekland and 95606. Postal supply methamphet- own would his Crow told Woolever S/A amine, returned to them from have to be otherwise the Falls Post Office Matson], the Thief River by. supplied parties [John at the [Office], Minneapolis/St. Paul whereas most CRI# also stated that on [CRI# 4]. they get canine to could a certified [sic] marijuana parties, these occasions at package. sniff the usually supplied by prevalent, [Mark and was 19, 1993, Woolever On November S/A Delage] [Wayne Delage]. or Inspectors A1 Eck- spoke with Postal U.S. Crow, Eckland and land and Steve with agents having 4 CRI# told that while stating package Crow n February with [Heinrichs] conversation fact, had in arrived to Debbie Souto 1994, 4 that he fact, stated CRI# [Heinrichs] custody, posi- been their and had Inspection methamphetamine from a female tively upon by a Postal ca- received his hit nine, Sacramento, area, substance. a controlled in the CA and the female facts, Subsequent a warrant was to these overnight express packages would mail mail signed by Mag- drafted and the Honorable (at unknown), time or оther [Beef] this 19, istrate J. Earl Cudd on November [Heinrichs]. friends of 20, 1993, Saturday, November On S/A 4 stated that in the later weeks of CRI# Inspectors Woolever met with U.S. Postal 1994, February purchased 4 1 CRI# ounce city A1 Eckland and Steve Crow methamphetamine [Heinrichs] Falls, a controlled deliv- Thief River where currency. in U.S. This transaction $1700 ery package of a addressed to Debbie Sou- place at the residence lo- [Heinrichs] took attempted to be delivered to the to was Souto, Fargo, cated in ND. CRI# 4 statеd to of Debbie known as 1516 104, Village, # Northland Thief River agents methamphetamine that he sold this Falls, at- MN 56701. After numerous persons, named one of whom was [five tempts, package not received and from the Thief River Falls area. Souto] subsequently the was turned over through affiant Your knows custody at a later date. Woolever’s S/A Federal, received from State and local law officers and a number of Con- enforcement 5, 1994, Thursday, May approxi- On Informants, [Souto] fidential Reliable mately p.m., аlong 2:00 Woolever [with] S/A possession distri- is involved and/or other Police met with [Confidential Officials methamphetamine, bution of mari- and/or 4, proven Reliable CRI# who had Informant] scale, juana on a in and around the wide through reliable and credible information re- Falls, area, Pennington County Thief River through ceived that was corroborated North [Heinrichs], being with a known affiliation Special Agent Fugelberg, Dakota BCI John native, Falls now a former Thief River Forks, in Grand ND. living Fargo, ND. Your affiant also knows that numerous аgents CRI# told that between the phone placed be- calls were and received February September months of 1993 and [Heinrichs/Toppen] residence tween the 1994, parties 4 would CRI# at his resi- residence, during the last [Souto] dence, Pennington County, located rural year, knowledge being supplied with this month, many sometimes as as 3 times a through Register the use of a Pen during the weekends. Numerous individuals Trap and Trace. up, marijuana, ingest would show smoke facts, your on affiant Based the above methаmphetamine by smoking either or is involved with [Souto] believes that snorting. GRI# 4 went on to further state (and/or [Toppen] [Heinrichs] and/or mostly that the individuals known for smok- individuals in the Thief River Falls/Pen- snorting methamphetamine [thir- were area) County continuing in a crimi- nington individuals, including teen named Souto]. enterprise involving nal 4 also CRI# stated that most occasions Bryl] up, [Bryl] when distribution of [Collin would show and/or (3) marijuana throughout Thief informant’s Falls, Pennington County adequately River area. established. that, based goes The affidavit on to statе Our review district court’s training experience with on the officer’s limited, probable cause determination is operations, knew traf- narcotics he great issuing deference to the afforded court. records, documents, etc., re- fickers maintain (Minn. Wiley, v. 366 N.W.2d lating trafficking and items that these 1985) Gates, (citing Illinois usually within the trafficker's are maintained 2317, 2331, 103 S.Ct. L.Ed.2d ápplication home or vehicle. The warrant (1983)). considering Rather than issue sought “premises authorization to novo, appeal de task on is to сourt’s Hilaire, MN Box St. described P.O. judge “ensure that had a ‘sub there, 56754,” any vehicles located and Sou- concluding probable stantial basis’ for person.1 The affidavit does not to’s Zanter, cause existed.” v. 535 State N.W.2d frequented or this whether Souto lived at (Minn.1995). 624, Furthermore, 633 we have residence. previously held that our is lim consideration warrant, po- Upon execution of the search presented ited to the information in the affi purse con- lice found brown vial Souto’s davit, actually rather than to the information taining methamphetamine. trace amounts of State, possessed by police. the Novak v. 349 drug paraphernalia. They also seized other 830, (Minn.1984). N.W.2d 831 charged posses- subsequently Souto issuing To determine whether the sion of the in violation finding had a court substantial basis for subd, 3(b). 152.025, 1(2), § After Minn.Stat. probable cause apartment, Souto’s search hearing, the pretrial omnibus court denied “totality we look to of the circumstances” suppress motion the evidence for probable by promulgated test for cause to the search lack Supreme Court in-Gates: and, trial, following a bench found warrant magistrate tásk of is sim- The guilty of crime a controlled substance ply practical, to make common-sense de- degree. fifth whether, given cision all circumstances appeals con- The court affirmed Souto!s him, in- set forth in the affidavit before viction, holding search that the cluding “veracity” and of knowl- “basis by probable cause. rea- The court supported hearsay еdge” persons supplying infor- “[although may the application soned that mation, probability that a fair there is strong lack a link the criminal activ- between will be or evidence crime contraband residence, ity application re- and Souto’s particular place. found in a link: important flects a more that between 238,103 at at 2332. Elements S.Ct. activity and Souto herself.” informa- bearing probability on include Souto, C4-96-1957, 1997 WL State v. No. to be linking place crime to the 15, 1997) tion (unpub.) (Minn.App. April 177653 1997) informа- and the freshness (Minn., searched granted (slip June review 6). Wayne 2 R. Search addition, tion. See op. the court held that the at ed.1996) ‍​​‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌‌‌​​​​‌​​​‌​​‌​​​‌​‌‌‌‌​‍Seizure, 3.7(d) (3d The at 372. adequately reliability of informant was of the information of the source Id. at 7. established. will likelihood that evidence also bears appeals, court As she did at the Gates, 462 place searched. found at the be challenges cause determi- now 238,103 at 2332. S.Ct. U.S. (1) grounds: three affida- nation on that the historically required a di- This court has vit contained no nexus, al- connection, between rect any contraband or evidence a crime place to be (2) particular residence, leged crime and the informa- found at involving the “stale,” searched, particularly in cases contained tion easily to other relative its location does not list a street address mátion 1. While residence, buildings small town. the St. Hilaire it describes identified by design provides infor- its color and house methamphet- received his dealer Heinrichs of a residеnce for evidence See, Cavegn, 356 e.g., packages v. amine in that were mailed to his activity. State (Minn.1984) (holding Sacramento, a woman friends from N.W.2d 3) area; “object-place occurring parties nexus” between clear California estab- searched was dealing and residence prior six months more than the execution actually oc- the fact that the sale lished had used Braasch, residence); v. at the State curred supplied by a that were certain confidential (estab- (Minn.1982) 578-79 friends, N.W.2d or his informant and that she when direct to residence lishing connection purchased once small amount of metham- residence suspect was seen to enter her 4) informant; phetamine the same picking up package after authorities shortly phone were “numerous” calls between Yaritz, drugs); contain knew to Heinrichs/Toppen Souto’s residence (Minn.1979) (concluding that 5) “during year”; the last nexus to residence was established sufficient through the affiant information” re- “kn[ew] beсause, immediately ar- after the defendant ceived from informants and law enforcement drugs by telephone, went ranged a sale of he Souto was wide- officers that involved sale). straight from his home distribution of meth- Novak, Citing marijuana. the state that we- amphetamine and/or now abandoned this nexus stan- strict significantly fall of These assertions short involving drug eases and dard for dealers uphold the that led us to a of the facts exception an to the their residences. Such “drug home of a wholesaler” in In Novak. requirement drug-related cases nexus for has case, question the affidavit in recited that juris- adopted in apparently been some police that had recorded the defendant’s tele- dictions, necessary which con- now allow the phone from his an un- conversation home to to the nection be demonstrated “on basis of agent; during conver- dercover narcotics the experience drug that the affiant-officer’s sation, agreed pounds Novak tо deliver six of ordinarily keep supply, dealers their records Novak, marijuana agent. the to 349 N.W.2d monetary profits and at home.” thereafter, Shortly police at 832. n observed Seizure, 3.7(d) and In Search at 379.- No- leaving drug him his home to drive to the vak, argues, state the this court attached deal, point at which he was arrested. Id. significance in considerable to information search of con- The warranted his home was the affidavit that defendant the day on the ducted later of his arrest. Id.2 “drug largе in was a wholesaler” who dealt contrast, the affidavit at here did quantities holding issue that there was drug arranged to search that Souto ever cause the defendant’s residence indicate following highway deals, sold, his arrest on drugs, the distri- or distributed much less Id., bution controlled substances. performed that she such acts from home. her at 832-833. Rather, only drug direct a the connection to Souto, supply package which is the mailed to purporting The evidence in the affidavit to Furthermore, she nevеr received. the loca- drug that establish Souto was a trafficker package tion to which likely drugs pertain- or information deals, Souto’s seven ceased to be residence some ing drug is as summarized follows: 1) months before affidavit was made and approximately prior that ten to the months warrant itself to a was directed execution of the search package Hilaire, building although containing in St. the affidavit drugs was Carmicha- mailed from el, California, does not even assert the St. Hilаire addressed to Souto her residence, building River home. The state- although Thief Falls is Souto’s officer’s 2) actually drugs never package; received the that ments that Souto did not receive di- an suspected drug informant stated rected to her residence Thief Falls River say we drug supplied by 2. While did support- in Novak that attached] "we sales the affidavit reason, significance ing reject considerable indi- For the warrant. we wholesaler,” cating petitioner drug argument represents depar- was a state’s Novak previous jurisprudence 349 N.W.2d at is made ture the nex- from our statement large reference to the description requirement. detailed us appli- way police support that she in no an inference can dealing drugs from her home in St. to search defendant’s cation residence Hilaire. interception described number of phone suspected drug calls between a dealer Further, phone calls between neither deals, discussing drug and the defendant and Heinrichs, her home that of nor Souto’s suspected drug stated that dealer also methamphet- previous purchase use or marijuana home, was believed store at the resi- away pro- from amine at locations her Id., of his associates. 371. necessary phone dences P.2d at nexus. The vide calls Longbine the Hein- between Souto residence and The affidavit did not name as one Id., that Souto richs residence fail establish these at 372. associates. P.2d net- part of distribution Heinrichs’ Supreme The Kansas Court held that is no evidence of work because there telephone merely gave appearance calls conversations or the identi- substance- part the defendant was generally See ties of callers. and, network dealer’s without more informa- Gabbert, (Minn.App.1987) 411 N.W.2d 209 tion, there was no for be- substantial basis affidavits, (holding includ- that information lieving at the found long drug dealer distance calls between Id., 896 at 371- defendant’s residence. P.2d insufficiently suspect’s tip, anonymous to estab- corroborated failed Here, although there is even less: suspect’s to search resi- lish phone numerous describes calls be- dence). purchase previous use and tween Souto’s residence Heinrichs’ resi- re- of a controlled substance locations dence, there is no information to their as certainly house were evi- moved her content, Further, Longbine. was in crime, no dence of but evidence whatsoever although mailing activity linked to her homе. containing drugs to Souto’s resi- that Finally, the officer’s statement gave appearance part the that dence she was in the “he was involved [knew]” that Souto Longbine, drug ring, of Heinrichs’ drugs on a distribution of indicating that is no substantive information vague conclusory and to wide was too drugs in fact received and stored for Souto position a bolster the state’s that Souto was fact, In Heinrichs at her the affidavit home. Doyle, drug dealer. In v. 336 N.W.2d State contradicting this con- contained information 247, (Minn.1983),we held the value 251 that informant, clusion; the who Souto to went of the affiant’s that he knew that statement purchased larger drug a amount of had the drugs dealing been for a the defendant had Heinrichs, -purchase a to small amount years of of number was diminished because and, although of she used conclusory indi its nature and its failure to parties, drugs at the informant’s cate the source of the information. Similar supplied persons one of the named who not here, ly, the lacks value because statement drugs. the any provide the officer details of the did permit that ‍​​‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌‌‌​​​​‌​​​‌​​‌​​​‌​‌‌‌‌​‍information he received Considering the information independently eval magistrate whole, that as a we hold it fails drug his a uate conclusion Souto was any pur a sufficient nexus between establish Martin, v. 866 dealer. United States Cf. drug dealing Pennington Coun ported (8th Cir.1989) 972, (holding 976-77 F.2d request ty area and Souto’s home. When the regarding affidavit contained sufficient facts is of of the court for the issuance a warrant magistrate the defendant’s behavior that the location, particular search a there must be judge independently probable could make a direct specific facts to establish a connection despite conclusory cause determination state alleged activity criminal and the between drug “casing” ment defendant no to be searched. Here such direct site store). is connection established. analysis find further our We only Not the search warrant did recently a case decided the Kansas Su- fail a nexus bеtween application to establish Court, Longbine, Kan. preme v. 267 State (1996). use, any drug Longbine, drug casual much less 896 367 In P.2d 750 home,

dealing, her generally but the information evidence of more than suspicious upon proof which it “[T]he relied was stale. necessary activities is to show continuation closely must be of facts so to the time related activity significant period after a of time justify, issue of the warrant as elapsed. 2 has See Search and Sei- finding probable Sgro that time.” at 3.7(a) zure, § Considering at 347. ten States, 206, 210, v. United S.Ct. elapsed attempted months that between the 138,140, (1932). 77 L.Ed. 260 Factors relat- delivery the execution any to staleness include there is whether telephone mere calls ongoing activity, indication of wheth- inadequate were to show the continuation sought er the articles are innocuous or in- drug trafficking conspiracy, especially criminating, sought property whether the is calls, when of the the dates the identities transferable, easily disposable or and wheth- callers, and the calls substance of the sought enduring utility. er items are of were unknown. Given the staleness of DeWald, (Minn. contained in the search warrant 1990). application and its failure to establish case, In lapse between time part drug ring, Souto was no there was events related and the search cause to believe that evi- application warrant is At the substantial. dence of crimes would at be found of the search it application, time at Souto’s residence the time it was seаrched. reported been over six months since Souto’s purchase of less than an ounce of metham- Finally, Souto raises an re issue phetamine reported since the last garding of the informant. party. Approximately 10 had tran- months cause, determining magistrate spired attempted delivery since the of the must consider and “basis of “veracity” substance, package containing a controlled knowledge” persons in supplying hearsay attempted delivery to a location Gates, formation. U.S. 103 S.Ct. than the one to be searched. All of the relating facts Nevertheless, argues informant in weighing should considered supporting the information war reliability. McCloskey, State v. 453 N.W.2d rant was not stale because was in (Minn.1990). organization. ongoing drug volved an not contain affidavit does sufficient informa activity an ongoing, protracted is of an When regarding accuracy tion the informant’s nature, passage significant. of time is less credibility to Seizure, 3.7(a) and Search especially light in of the informant’s admitted ‍​​‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌‌‌​​​​‌​​​‌​​‌​​​‌​‌‌‌‌​‍highlights The state 344-46. the information participation drug in trafficking. See affidavit that numerous (individual McCloskey, 453 N.W.2d at 703 phone calls were made and received between purchasing marijuana who admitted from during the Souto and Heinrichs residences suspect presumption not entitled to the prior year ongoing to underscore informer). honesty given to a citizen Furthermore, activity. nature argues that the information was not However, we hold that the infor sought because stale the warrant items of satisfactorily mant’s estab enduring utility likely to be innocuous on provides lished. The that infor face, telephone their such as numbers and provided by mation the informant was records, in perishable addition to more items, special agent a incriminating drugs and as corroborated in such and Grand paraphernalia. Additionally, Forks. the informant met Agent with Woolever and face-to-face However, just as we determined that the against made admissions his own interest whole, applicatiоn, as a taken police meeting type to officers. This to drug failed establish that was a credibility bolsters of the informant dealer, argument reject we likewise that police then because the know the infor application part established she was identity and ongoing an mant’s because the statement conspiracy. criminal More- over, enterprise, even in ongoing against implicates, cases of an interest the informant suspect. McCloskey, drug purchaser; police and a inter- as much as the See user 453 N.W.2d at 703-04. cepted package containing drugs a Souto; from mailed Car- sum, despite great we deference michael, Sacramento, city California —near a afford court’s determination from which Heinrich was known to have re- cause, we hold that the search war- drugs; telephone calls took ceived series whole, application, as a does not rant taken Heinrich, place between Souto and a known support a сontain sufficient information to dealer; drug “information received cause determination Federal, drugs drug dealing local law of- be evidence of or enforcement

would time the at the St. Hilaire residence ficers and a number of Confidential Reliable signed. search warrant was The warrant in- [indicated was] Informants that Souto necessary nexus be- failed establish the volved distribution and/or alleged the.crime home. tween methamphetamine, marijuana Further, there was no evidencе that Souto scale.” wide “drug such a nexus to wholesaler” target Because the of the warrant was presumed. be Addition- her could drug dealing such evidence as customer ally, in Longbine, there was no evidence lists, paraphernalia, just money or beyond superficial appearance that Souto —not drugs, temporary which tend to have more ongoing enter- was involved in an existence —the circumstances set forth establishing prise. ongoing ac- Without an fatally is also are stаle. It tivity establishing and without that Souto significant part this warrant was dealer, drug there was little reason to was a county-wide investigation that had been un- enduring rec- would have believe months, relating dealing derway ‍​​‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌‌‌​​​​‌​​​‌​​‌​​​‌​‌‌‌‌​‍implicating infor- for several nu- drug ords sup- varying relating people was too old to of in- mation merous levels Further, port trafficking. the issuance of the search warrant. volvement larger complexity, and nature breadth Accordingly, ap- we reverse the court of investigation suggest delаys would peals and order that Souto’s conviction may necessary to have been effectuate degree fifth substance crime controlled timing investigatory of the various activities vacated.3 scope and arrests made in the of the broad- STRINGER, (dissenting). investigation. Justice I conclude that the er her nexus between home was suf- -magistrate, A neutral is entitled-to broad ficient this context. a probable review of deference our “the resolution of doubtful determination and circumstances, I totality of the Given ‘largely marginal eases should be deter do not believe that the trial court erred by ” to be preference mined accorded war issuing the search warrant. Wiley, 366 rants.’ State v. (Minn.1985) Up (quoting Massachusetts

ton, 727, 734, 466 U.S. S.Ct. (1984). magistrate L.Ed.2d 721 The must totality circumstances.

consider Gates, 103 S.Ct.

Illinois (1983). I believe L.Ed.2d adequately sup search warrant was given upon and

ported the information relied large investi

the circumstances of I

gation. therefore dissent. judge multiple indicia of

Here known

criminal conduct: Souto appeal, first whether the state for the time 3. We decline to address issue of raised "good exception adequately there is a faith” to the exclu- below. it was not because Constitution, sionary rule under the Minnesota

Case Details

Case Name: State v. Souto

Court Name: Supreme Court of Minnesota

Date Published: May 14, 1998

Citation: 578 N.W.2d 744

Docket Number: C4-96-1957

Court Abbreviation: Minn.