State v. Wiley

premises a former curred owner arbitrary

to be served is and unreasonable.

Affirmed. Minnesota, Respondent,

STATE of WILEY, Appellant.

Earthia

No. CX-83-1672. Appeals

Court of of Minnesota.

April 1984. Aug.

Review Granted Jones, Defender, Paul

C. State Public Rademacher, Brian I. Asst. State Public Defender, Minneapolis, appellant. for III, Atty. Humphrey,

Hubert H. Gen., Johnson, Hennepin Thomas L. Coun- Atty., Minneapolis, respondent. ty for POPOVICH, and decided

Considered WOZNIAK, C.J., PARKER, FOLEY, JJ., LANSING, with oral SEDGWICK and argument waived.

OPINION FOLEY, Judge. appeal

This arises from a conviction of marijuana in of possession of violation §§ 152.01, 152.02, 152.09, 152.15 Minn.Stat. (1982). Appellant the trial asserts 1) respects: erred in three that the of the search warrant inadequate finding a to establish cause; 2) that trial the evidence at conviction; was insufficient 3) identity of the informant in order to as- should have been disclosed him a trial. affirm. sure fair We appeal, provi- purposes For of this of the Minnesota sions of Rule 4.6 Rules, Appeals Internal relative a divid- court, hereby waived. ed

FACTS 24, 1983, Minneapolis po- January a On a search warrant lice lieutenant obtained North, Upton Minneapolis, Avenue for Hennepin County District Court. from .the states, in warrant application part: pertinent into the Or- 1-24-83 the CRI came On he ganized office and told me that Crime (sic) Upton at 1501 Ave. N. on hd been hrs. 1-22-83 at 2330 At that time handguns he had seen 15-20 basement box that and rifles cardboard occupant dwelling stated were consisting saw stolen. He also narcotics marijuana and cocaine at the same dwelling has time. The CRI been compel has on numerous occasions and seen sto- motion disclosure of infor- property consisting identity guns, len there mant’s was denied. mise, stereos, TV’s and other items. The trial, public At health for the chemist Male, occupant as Black described City Minneapolis testified that her 40’s, tall, late close 7 ft. about 300 opinion marijua- expert the substance was pounds and he lives there with a white opinion na. Her was based on two labora- Clare. I checked the female named list- tory performed: tests that she had a micro- ing directory 1501 Upton the cross for layer scopic examination and a thin chro- Bettymae N. lists to Ave. and it Clare matography. I checked a 1973 Masanz. also Mercedes Appellant jury had right waived in front of that address that the CRI court, sitting fact, trial and as finder of is driven the black male and indicated guilty charged. him found as and I the white female obtained the li- cense number of DMJ 234. This vehicle ISSUES (sic) list BETTYMAE MA- CLARE probable 1. Was there cause to issue SANZ, 4 Upton 1501 Ave. N. and is a the search warrant? door blue in color.

2. Was the sup- evidence sufficient port appellant’s conviction? CRI It should be noted that the has been 3. appel- Was trial court’s denial of years successfully. used over several compel lant’s motion to of disclosure and police The lieutenant several other identity proper? Upton went to Ave. N. where

officers 1501 During search warrant. they executed the ANALYSIS the search the officers seized electronic Probable Cause equipment, guns, suspected marijua- and Supreme The United States recent Court na.1 ly announced a standard for determi new suspected marijuana The was found in probable Illinois v. of nations cause separate two of containers one the bed- Gates, —, 2317, U.S. 76 approxi- One of held rooms. the containers 527 pronged L.Ed.2d The “two mately marijuana. 5.5 ounces of loose Texas, Aguilar 108, test” of 378 84 U.S. box, was a There smaller labeled “Earthia 1509, (1964) Spi 12 S.Ct. L.Ed.2d 723 box, 4/27/82,” Wiley, along inside this with States, nelli v. United 393 U.S. container, marijuana. The second hold- (1969), reject S.Ct. L.Ed.2d 637 was ing approximately .5 loose ounces of mari- “totality ed in of a favor of the circum juana, syringe was a box a label — at—, test. stances” appellant’s with name. standard, 2332. S.Ct. at Under the new The bedroom where the was “veracity” prongs “reliability” two of papers found also contained numerous with knowledge” be “basis are to “under them, appellant’s name on letters ad- simply closely stood intertwined issues N., appellant Upton dressed to Ave. may usefully that illuminate the common clothing in closet a size question practical sense whether there is fit comfortably appellant. would There ‘probable cause’ to believe that contraband conflicting regarding evidence whether particular place.” or evidence located premises. appellant actually resided on the Id. magistrate’s hearing duty At the the court The prac- omnibus ruled is to make a tical, whether, that the search warrant was valid and the common sense decision marijuana properly Appellant’s seized. based on circumstances set forth in the charged receiving Appellant was also with sto- ihc omnibus court ruled that the evidence was goods charge improperly len but the was dismissed when seized. affidavit, ownership that The probability there is a fair verified the the premises. occupants will be found on allegedly contraband vehicle driven at-, Id. 103 S.Ct. at 2332. Upton Ave. N. The affidavit further stated the informant had been used reviewing court is “sim duty of the successfully past. ply to had a ensure that concluding]’ for ‘substantial basis This affidavit sets forth evidence (quoting cause existed.” reasonably prudent sufficient to allow 257, 271, States, 362 U.S. Jones v. United person to conclude that there was a basis (I960)). S.Ct. properly search. The trial court further stated: the fact “[A]fter pursuant admitted the evidence seized scrutiny by sufficiency courts of the the warrant. should not take form of de The dissent finds this affidavit defective magistrate’s novo A ‘determina review. it because lacks facts that would tend to paid great tion cause should be ” — establish the reliability of the informant. Id., by reviewing courts.’ deference at-, (citing Spi at 2331 U.S. 103 S.Ct. It only is true that the statement in the nelli, 419, 591). 89 393 U.S. at S.Ct. at regarding the informant’s reliabil- Finally, that the Court stated “resolution ity is the final sentence: “It should be marginal cases in this area doubtful that noted the has been used CRI over by largely prefer should determined the be However, years successfully.” several ence to to be accorded warrants.” prior type even to of this statements -, 103 S.Ct. at “reliability” held to satisfy prong were the Supreme adopted The Minnesota rigid of the test. Aguilar Spinelli See — Yahnke, the in v. 336 Court, Gates standard Longsworth 165 Mont. v. District (Minn.1983). 539, (1974) (statement 530 P.2d 462 that successfully informant had been used recently This court addressed the issue Mertens, past); the 268 N.W.2d State v. State, probable v. 344 cause Hanson (N.D.1978) (informant cooperated 446 had 1984). (Minn.App. 420 The facts of N.W.2d Likewise, past). with affiant in the state- case, from this it is Hanson differ but ments to the effect that an informant is useful to note that this court cited with provided to be or has known reliable reli- approval following the summation of the past have been able information in the held standard: Gates reliability requirement. fulfill the 1 See The cause is if the test of met § LeFave, Seizure, 3.3 at W. Search and affidavit, interpreted common sense (1978 Supp.1984). 515 manner, compe- and realistic sets forth tent sufficient to a reason- evidence lead a concededly may be close While ably prudent person to believe that there case, satisfy the this affidavit does more is a basis for the search or that has been relaxed standard. Gates Gates sought place are located at articles characterized at least two commentators be There must be sufficient searched. providing issuing magistrate with underlying magistrate facts so that under much more than was had latitude may his own conclusions of wheth- draw LeFave, supra; test. Aguilar Spinelli — er cause exists. Term, Court, Supreme Harv. Indeed, 4, 1983). (Nov. Judge’s L.Rev. 184-85 (quoting Id. at 423 the Minnesota (1983 Benchbook, Supp.)). 1-4 court itself stated: Criminal way Nothing opinion any hand, in our less- Turning to the case at the affidavit authority ens the mainly the warrant consists support of inferences as he draw such reasonable provided to the officer of information supplied will from the material to him The information was by the informant. warrant; indeed, applicants for a he is personal the informant's observa- based on regime Aguilar freer than under the suspected tion narcotics at residence. inferences, Spinelli draw such or United F.2d Fleming, States v. (1977)(cited to refuse to draw them if he is so mind- approval with States United 1498, Bentley, denied, ed. v. 706 F.2d cert. —U.S., U.S.—, — Platt v. 104 S.Ct. at-, U.S. at 2333. S.Ct. (1983)). In Fleming, L.Ed.2d 110 rejecting rigidly applied prong In two affidavit stated that informant had ob test, the court noted: premises served to be rigid neither compart- intended a [W]e searched; supported by inquiries mentalization of the into an in- supplied fact he had correct infor “veracity,” “reliability,” formant’s past. mation in the knowledge,” “basis of in- nor these Eighth language Circuit held this quiries exegeses of an be elaborate infor- sufficient because it revealed that the in- Rather, required tip. only mant’s we proven formant had to be a reliable source particu- that some facts on two past and that he had first-hand magistrate. issues provided lar be to the knowledge of the information forth set at-, U.S. 103 S.Ct. at n. 6. the affidavit. The court stated: “The affi- “totality In its reaffirmation only davit activity need show that criminal test, circumstances” the court cited with probable, beyond not it exists Ventresca, approval States United 380 reasonable doubt.” Id. at 625. The court held that the district had (1965),which stated: requiring erred in showing that the infor- [Wjhere [underlying are circumstances] prior tips mant’s had resulted in convictions detailed, crediting reason where for the practical because the effect of such a re- given, source of the information is and quirement necessity proof guilt is the of of where a has found separate in a as case a condition to the cause, the courts should not invalidate warrant. Id. by interpreting the warrant the affidavit Gates, Similarly, in the court noted that hypertechnical, than a rather com- proba- the standard for of determinations monsense manner. susceptible ble cause not to reduction to 109, 85 at Id. at S.Ct. 746. rules,” legal a “neat set of is a “fluid but — Furthermore, the court in refer- -, concept.” U.S. 103 S.Ct. at ring “reliability” to the elements of and knowledge” of “basis stated: deficien- “[A] Perhaps the teaching central of our deci for, cy may compensated in one be deter- sions on the cause stan mining tip, the a overall of a “practical, dard is that it is a nontechni * n * * strong showing to the other conception °. cal deal with [W]e * * at-, U.S. 103 S.Ct. at 2329. The court probabilities 1. These not are tech gave following example proposi- the of this nical; they practical are the factual and tion: everyday considerations of life which men, if doubt prudent we entertain some as to not legal reasonable

[E]ven motives, explicit an his technicians act.” description alleged wrongdo- detailed of quoting States, Brinegar Id. v. United ing, along with a statement the 160, 175-76, 1310-11, first-hand, event was entitles observed (1949). L.Ed. 1879 tip greater weight might to than oth- This affidavit satisfies the Gates erwise be the case. provided standard because it issuing the at-, 103 S.Ct. at 2329-30. In judge with sufficient facts to make inde this case we first have hand observation of pendent, common sense determination that premises narcotics on the to be searched. probable cause A existed. substantial ba Eighth upheld validity present Circuit the sis for the determination is in that a the warrant a similar factual situation information was based on the infor- Vail, he and that ous.” N.W.2d at 133. The personal mant’s observation court gave to finding to have reliable deference the trial court’s was shown been evidence, past. that the which consisted of the case, performed plus two tests an reading application a for Finally, the other, inadequate.” was “probably Id. at reliability of reflects that the the warrant 133. The was re defendant’s conviction partially was “at least corrobo- the CRI versed, however, the court because disa independently” particular on the oc- rated greed finding the trial with court’s that the seeking the involved the casion officer non-scientific evidence alone was sufficient warrant, v. 296 N.W.2d Wiberg, see State support Thus, at 134. to conviction. Id. (Minn.1980),and is an additional the crux of the Vail case was sufficien sustaining magistrate. reason evidence, cy not non-scientific Sufficiency Evidence scientific evidence. sufficiency Appellant challenges next Here, evi- of the evidence. He asserts that the the trial court determined of law dence was insufficient as a matter that the scientific evidence was sufficient respect finding both This with identification conviction. finding entitled to the same as the find substance as deference possession. ings clearly it is constructive Vail unless erroneous. are findings which “[District trial was held before of the de product of firsthand observation appellant right to a court after waived his parties pos meanor of and witnesses jury findings The trial are trial. court’s integrity a certain not contained sess ver jury entitled to the same review as a Inn, written record alone.” Tamarac Inc. 22, 151 Crosby, dict. v. 277 Minn. Lake, City Long 310 N.W.2d findings will not These (Minn.1981). say We that the cannot trial clearly unless erroneous. be set aside findings clearly are erroneous. court’s (Minn. Vail, 274 N.W.2d State v. argues also that the evidence Appellant 1979). reviewing The role of court is finding was insufficient “to whether review the record determine possession. required The circumstantial, evidence, constructive direct showing possession constructive finding of most favorable to a viewed Florine, 103, in 303 Minn. set forth guilty, permit was sufficient the trial (1975): My court to reach its conclusion. State v. 248, 276, tych, Minn. N.W.2d prove posses- order to constructive “[I]n (1972). a) to show sion the state should have police that the found the substance trial, analytical with near- At an chemist under exclusive control place defendant’s ly experience exten- years testified people normally other did not to which per- sively regarding the that she tests access, b) that, police if found it have suspected marijuana. It formed on the access, have place to which others expert opinion that the substance was her (inferable strong probability is a there marijuana of the she examined was indeed evidence) other that defendant was from by type prohibited law. exercising consciously the time domin- at sufficiency of the attacks the Appellant control over it. ion and identifying the testing procedures used in 226 N.W.2d at 611. Vail, marijuana, citing substance Vail. Florine, however, his was found supports the affirmance of In defendant possession packet of Supreme Court be in constructive of a The Minnesota conviction. lying on a this would draw cocaine which was found note- “Whether stated: bearing paper evidence is book that contained a conclusion from the the same * * n . unlocked, findings name. The notebook was in an judge’s not relevant The car clearly errone abandoned which also contained several will not be set aside unless papers other with the defendant’s name on DECISION them. panel being evenly The en banc divided on the issues appeal, involved Here, people probably other had ac judgment of the lower court is affirmed. cess to the marijuana bedroom where the We waive Rule 4.6 of the Minnesota Court However, was found. there was evidence Appeals publish Internal Rules and appellant dwelling; resided in the panel views in the event the Su- papers bearing there were numerous appel preme Court is asked and decides to review room; lant’s name in the and there was important question this matter as an clothing in the closet of a size that would law. appellant comfortably fit (appellant very is weighs tall pounds). almost 300 More SEDGWICK, Judge (dissenting). over, one of containing the boxes the mari I respectfully I dissent. While am in

juana also contained a smaller box complete agreement with the standard for appellant’s name. The second container of determining probable cause set forth above appellant’s also had name on it. by the majority, it is not inmet this case. This evidence is sufficient to inference that The appellant at one time had this warrant physical possession marijuana, entirely based on information from an alleged when found it he CRI. There continued to exer is not one fact from it, cise dominion and control which a over as re could conclude that the quired by informant was only attempt Florine. reliable. The

to corroborate the informant’s conclusion the affiant that: “It Disclosure Identity Informant’s should be noted that the CRI has been used Finally, appellant argues years over successfully.” several identity of the informant should have been majority analogizes The the fact situa- disclosed in order to assure him a fair trial. tion in Fleming, United States v. 566 F.2d argues He that the testimony (8th Cir.1977) with the facts the case helpful would have been to him in counter- They before us. analogous. are not The ing possession the constructive charge. affidavit, Fleming search warrant sworn Supreme United States Court man- sheriff, deputy contained fol- dated disclosure of an informant’s identity lowing statement: “Reliability of infor- States, Roviaro v. United 353 U.S. mant is based on fact that he has informed past occasions to the County St. Francis Court noted a need public to balance the sheriff’s office and the information interest in free against flow of information past always proven has correct as to the right the prepare individual’s to a defense. illegal activity by informed on the infor- Id. at public S.Ct. at 628. The inter- mant.” Id. at 624. gave way est in Roviaro because the infor- In present case, contrast to the in Flem- mant actually illegal was involved in the ing, the fact gave of who the informant transaction and the only was witness to to, together information with the fact that particular occurrences. correctly the information illegal related to activity on, supplies informed minimum The circumstances of this case are necessary facts for a to form an compelling not as as Roviaro. The infor independent judgment reliability. on surely mant only is not the witness who testify occupied could as to who the bed The standard of Illinois v. —, room or other posses matters relevant to 103 S.Ct. marijuana. (1983),

sion of the omnibus as summarized State, Hanson v. court’s compel slip denial of the motion to dis 344 op. N.W.2d (Minn.App. at 423 proper. 1984) closure was must be underly- “[t]here sufficient istrate to allow magistrate may so draw that official determine ing that facts probable cause; his own whether probable conclusions his action cannot be added) (emphasis does not cause exists” mere ratification of bare conclusions search, being There no basis for the exist. of others. In to ensure order that such suppressed. the evidence seized should be magistrate’s duty an abdication of the occur, not must does courts continue to LANSING, Judge (dissenting). conscientiously sufficiency review the join Sedgwick. I of Judge the dissent affidavits which warrants are issued. primary Amend- purpose A Fourth persuaded I also not am that the corrobo that sei- ment is insure searches and in this ration case is sufficient establish a neutral zures are screened advance reliability. informant’s In State v. Wi magistrate. detached Facts are essen- (Minn.1980), berg, 296 screening precondi- tial for this and are a police Court held that of a corroboration of a Al- tion for issuance warrant. key detail an informant’s statement type though the quantum of evidence gave remaining portions credence to the totality must be under the evaluated statement. The went find on to to insure circumstances against pe that the informant’s declaration sufficient, proba- cause is the existence of coupled police nal interest with the officer’s guaranteed by the ble cause must first be purchase from the informant of one of the case, In there presentation of facts. weapons support stolen was sufficient to facts crucial issue of reliabili- are no on the contrast, credibility. informant’s In ty the informant. corroboration in this case is limited to We cannot confer unbridled discretion that a independent the officer’s verification police the individual officer to conduct named lived at the address woman Clare officer must state searches. reg given by the informant and a car factual for the search under oath basis parked her istered to front of conclusory merely rather than assert inno This is corroboration of residence. terms an informant “credible” activity, “successfully.” key not corroboration of a “reliable” or has used cent been Allowing police make their own conclu statement. The detail can well-in sions about remotely suspi not corroboration here was tentioned but unsubstantiated searches. activity. of criminal cious equally procedure This willful can reasons, I dissent. For these Rehnquist As police misconduct. Justice —Gates, wrote the Court Illinois v. PARKER, Judge (dissenting). U.S.—, 2317, 2332, 76 L.Ed.2d (1983): Judges Sedgwick join I in the dissents of provide magistrate An affidavit must Lansing. determining with a substantial basis for * * *. the existence of cause

An that “affiants officer’s statement from a reliable information

have received person heroin and believe” that

credible home, is inade stored in a likewise Texas,

quate. Aguilar 378 U.S. n * 1509, 12 L.Ed.2d conclusory is mere statement

[T]his magistrate virtually no gives re making judgment all for

basis in probable cause. Sufficient

garding mag presented to the must be

formation

Case Details

Case Name: State v. Wiley

Court Name: Court of Appeals of Minnesota

Date Published: Aug 3, 1984

Citation: 348 N.W.2d 86

Docket Number: CX-83-1672

Court Abbreviation: Minn. Ct. App.