State v. Doyle
| Decision Date | 08 July 1983 |
| Docket Number | No. C7-83-415.,C7-83-415. |
| Citation | 336 NW 2d 247 |
| Parties | STATE of Minnesota, Appellant, v. John Wallace DOYLE, Respondent. |
| Court | Minnesota Supreme Court |
Hubert H. Humphrey III, Atty. Gen., St. Paul, Raymond F. Schmitz, County Atty., and Michael S. Husby, Asst. County Atty., Rochester, for appellant.
Peterson & Stephenson and Mark G. Stephenson, Rochester, for respondent.
Considered and decided by the court en banc without oral argument.
This is an appeal by the state, pursuant to Minn.R.Crim.P. 29.03, subd. 1, from an order of the district court suppressing evidence on fourth amendment grounds and dismissing the prosecution of defendant for possessing cocaine with intent to sell and for simple possession of cocaine, hashish and LSD. The evidence in question was found in a warranted search of the apartment in which defendant was residing, an apartment that was leased by a friend of his. The trial court suppressed the evidence on the ground that the affidavit on which the search warrant application was based contained material misrepresentations of fact and that without those misstatements the affidavit did not contain sufficient information to establish probable cause to believe that controlled substances would be found in the apartment. We affirm.
Rochester police apparently suspected for a number of years that defendant was dealing in controlled substances. Sometime in May or June of 1982 they received information from a confidential source that defendant was trafficking in cocaine. Through random surveillance they saw defendant in the company of other known or suspected cocaine dealers at a bar in Rochester. At various times they also saw known or suspected drug users enter the apartment building in which defendant resided, stay for a short period of time, and then leave.
The street level of the building is occupied by a bookstore. The second story of the building contains four apartments, numbered 1 through 4. Access to the second floor is by an interior stairway from the front street level door or a stairway in the back that leads to a common back porch that has a roof but is not enclosed. All four apartments are to the north of the hallway. Apartments 1 and 3 face onto the street and Apartments 2 and 4 face onto the back alley. Apartment 4 can be entered from the back porch as well as from a vestibule off a second-story hallway that runs from the front of the building to the back porch. Apartment 3 can be entered from that same vestibule. Apartment 1 can be entered only from the hallway. Apartment 2 can be entered from the hallway or from the back porch. When the police had the building under surveillance and saw someone going in, they could not tell which of the four apartments was visited.
On the afternoon of July 12, 1982, police investigated a complaint that marijuana plants could be seen growing next to the window of one of the apartments above the bookstore. Standing across the street from the front or western end of the building and using 8 X 40 binoculars, the officers could see plants inside Apartment 3. The plants were in two white plastic pails, two beer cases and one cardboard box. Based on their experience, the officers concluded that the plants were marijuana.
The officers then talked with a person named Dave (last name unknown), who managed the bookstore and had something to do with the apartments. He stated that the apartment in question was Apartment 3 and that it was rented by defendant and defendant's mother. He also stated that defendant frequently stayed with a woman named Cady, the lessee of Apartment 4, which is the apartment in the northeast part of the upstairs. The officers, however, had seen defendant on numerous occasions with a woman, named Schultz, and did not believe that defendant was living with Ms. Cady at that time. Dave also told them that he thought Apartment 1 was vacant and that he thought Apartment 2 was rented to a so-called "escort service."
The following morning the officers drove past the building and saw that the plants were no longer in the window of Apartment 3. The officers then went to the roof of a building across the street from the rear or east side of the apartment building and, apparently using binoculars again, saw the plants on the back porch. The plants apparently were the same plants and were in the same containers as the plants they had seen the previous afternoon in the window of Apartment 3.
On July 14, an officer applied for warrants to search Apartment 3 and the person of defendant and Apartment 4 and the person of Cady. The affidavits in support of the applications were identical. They stated:
The police executed the warrants around noon on the 14th. They proceeded down the interior hallway to the vestibule and knocked on the doors to Apartments 3 and 4. Defendant's mother answered the door to Apartment 3, but no one answered the door to Apartment 4. After a short delay, defendant's mother produced a key to Apartment 4. When the officers opened the door they found defendant coming from the bathroom and Ms. Schultz in bed.
The officers found the marijuana plants in Apartment 3 by the window, which is where they had first seen the plants on the 12th. In Apartment 4 they found the items forming the basis of this prosecution.
During defense counsel's cross-examination of the affiant at the reopened omnibus hearing, the affiant admitted that he had not informed the magistrate of his doubts as to the total accuracy of Dave's statements relating to the tenancy of Apartment 4 and defendant's relationship with that person. It also came out at the hearing that the porch, which the affiant had represented as being "the porch for Apartment 4," was in fact a common porch. Ms. Cady testified that she had lived with defendant in Apartment 4 until April of 1980, when she moved out of town. Defendant testified that Ms. Schultz and he had been living together in Apartment 4 for about 1½ years. He testified that his mother was the tenant of Apartment 3 and that his 13-year-old daughter, who was home for the summer, was staying with her. He testified that some "guys" were living in Apartment 1 and that a number of women from the "escort service" were staying in Apartment 2.
The district court concluded that the affiant deliberately or recklessly misrepresented the facts bearing on the tenancy of Apartment 4 and the relationship of the porch to that apartment. The court concluded that the misrepresentations were material and that, setting those statements to the side, the remaining information was insufficient to establish probable cause to believe that there were controlled substances in Apartment 4.
The ultimate issue on appeal in this case is whether the affidavit contained sufficient reliable facts to support the magistrate's determination that there was probable cause to believe that controlled substances would be found in Apartment 4. Our starting point, however, is the requirement that the magistrate make an independent determination of probable cause. That requirement underlies the rule that the affiant must provide the magistrate with sufficient factual information regarding the circumstances which the affiant believes establish probable cause. As stated in Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964),1 if the magistrate is to "perform his `neutral and detached' function and not serve merely as a rubber stamp for the police," then the magistrate must be provided with more than the mere opinions, conclusions...
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