State v. Lewis

• Decision Date: 06 November 1978
• Docket Number: No. 48311,48312.,48311
• Citation: 270 NW 2d 891
• Parties: STATE of Minnesota, Respondent, v. Jeffrey Bill LEWIS, Appellant. STATE of Minnesota, Respondent, v. Jerry Bill LEWIS, Appellant.
• Court: Minnesota Supreme Court

270 N.W.2d 891 (1978)

STATE of Minnesota, Respondent, v. Jeffrey Bill LEWIS, Appellant.

STATE of Minnesota, Respondent, v. Jerry Bill LEWIS, Appellant.

Nos. 48311, 48312.

Supreme Court of Minnesota.

September 15, 1978.

Rehearing Denied November 6, 1978.

Thomson & Nordby, St. Paul, for appellants.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Craig Forsman, Sp. Asst. Atty. Gen., St. Paul, William R. Glaeser, County Atty., Chaska, for respondent.

Heard before PETERSON, TODD and GODFREY, JJ., and considered and decided by the court en banc.

PETERSON, Justice.

Defendants Jeffrey and Jerry Lewis were convicted of felony possession of a controlled substance with intent to distribute in violation of Minn.St. 152.09, subd. 1(1), and 152.15, subd. 1(2). On appeal from the judgments, defendants raise issues concerning (1) disclosure of the identity of a confidential informant; (2) constitutionality of entry upon defendants' premises to place them under arrest; (3) validity of a search warrant; and (4) scope of the search warrant.

Defendants were arrested the evening of Sunday, January 18, 1976. The nature of the issues, including probable cause for arrest, necessitate a rather detailed statement of the facts. The events began Saturday, the day before defendants' arrest, when Sergeant Milton Shoquist of the Austin, Texas, police department received a telephone call from a confidential informant. The informant told Shoquist that 2 days earlier, Thursday, a man named Roberto Herrera had delivered 600 pounds of marijuana from the Corpus Christi area to Johnston, Texas (a small community northwest of Austin). In Johnston, according to the informant, the marijuana was transferred from Herrera's vehicle to a pickup truck operated by a man named "Ronnie," who left Texas on Friday to deliver the marijuana to the home of one Jeff Lewis in Chaska, Minnesota. The informant did not know Ronnie's last name or the license number of his pickup truck. But the informant did tell Shoquist that Ronnie's pickup had Texas license plates and a camper shell over the truck bed, that the marijuana would be concealed in the back of the pickup, and that Ronnie would be accompanied by his wife, Brenda, and their small child. The informant also provided Shoquist with a telephone number for the Lewis residence and specific road directions for reaching it. Finally, the informant also told Shoquist that Roberto Herrera, the man who had provided the marijuana to Ronnie for transportation to Minnesota, would soon be leaving the Austin, Texas, area and flying via Braniff Airlines to Minneapolis-St. Paul to meet Jeff Lewis and obtain payment for the marijuana.

After receiving this information from the informant, Sergeant Shoquist located a photograph of Roberto Herrera in Austin police files, supplied it to Austin airport security personnel, and asked that he be contacted if Herrera purchased an airline ticket. That same Saturday, Shoquist telephoned Richard Irwin, an agent of the Drug Enforcement Agency (DEA), who was also located in Austin, Texas, and gave him the information provided by the informant. Agent Irwin relayed the information to Jerry Kraemer, a DEA agent working in Minneapolis. Following these contacts, investigative work continued in both Texas and Minnesota.

In Minnesota Agent Kraemer began checking DEA files for references to a Jeff Lewis. He found references to defendants in connection with "drug related activity" in Mankato, Minnesota, in 1971. A DEA check of the phone number provided by the informant disclosed that it was listed to a Jerry Lewis in Chaska, Minnesota. About 4:30 that Saturday afternoon, Kraemer and another agent followed the directions provided by Sergeant Shoquist and located a house in a semirural part of Chaska which fit the described directions. They established surveillance of the house, which was defendants' residence, and remained there until approximately midnight Saturday, when they left.

At about 6 a. m. the next morning (Sunday), Agent Kraemer and others reestablished surveillance at the Lewis residence. They remained there until about 1 p. m., when they left for Minneapolis-St. Paul International Airport, because they had received information from Texas that, as expected, Roberto Herrera had left Austin on a Braniff flight and would be arriving in Minneapolis-St. Paul at 2:30 p. m. Based upon a description, the agents recognized a man they believed to be Herrera at the arrival gate of the Braniff flight. They followed him to a motel and observed him register there as Roberto Herrera.

At this point the focus of events shifted back to the Lewis residence. At about 6:30 p. m. (several hours after Herrera had arrived in Minneapolis), DEA Agent John O'Connor drove his pickup truck with a shell camper to the mouth of the Lewis driveway. He pulled onto the driveway and was turning around to leave when he saw someone open the front door of the house. Simultaneously, a light outside the house flashed on and off "a number of times, as if signaling." O'Connor also saw someone at a window who was looking out at him. He completed his turn in the Lewis driveway and then returned to a surveillance position near the Lewis residence.

About 9:15 that evening Agent O'Connor saw a truck with Texas license plates and more than one occupant in the cab drive past him, turn onto the Lewis driveway, and pull up close to the Lewis house. O'Connor left his surveillance position and drove past the Lewis residence. As he was driving past, he saw the figures walk from the truck to the Lewis house. A short time later he saw two figures emerge from the house, walk to the rear of the recently arrived truck, and shine a flashlight inside the camper shell. When the two figures returned from the pickup to the house, O'Connor radioed for local police and sheriff's deputies to come to the area, and then he left the area to meet with an assistant county attorney and apply for a warrant to search the Lewis premises. It should be noted that at this point there were four vehicles on the Lewis driveway: The pickup with Texas license plates, another pickup belonging to defendant Jerry Lewis, and two automobiles.

At 10:30 or 10:40 p. m., about an hour after Agent O'Connor left to obtain a search warrant, Agent Kraemer observed the garage door at the Lewis residence open and the garage light come on. Kraemer then saw two adult figures in the driveway and another automobile inside the garage. The automobile moved out of the garage onto the driveway. At about the same time, the two pickup trucks and one of the automobiles already on the driveway began to move.

Immediately after observing these movements on the driveway, the agents and officers left their surveillance positions and approached the Lewis driveway to place the persons there under arrest.¹ Defendant Jeffrey Lewis, Ronald Sherrill (the "Ronnie" who had driven the pickup from Texas), and Jeanette Erickson were arrested while standing on the driveway. As other officers took charge of these persons, Agent Kraemer walked to the automobile which had just emerged from the garage and stopped about 3 feet from the edge of the house. As he walked to the automobile, Kraemer passed a large window through which he saw a woman inside the house and a large quantity of marijuana plants on the kitchen table.²

From the automobile on the driveway, Agent Kraemer proceeded to the door between the inside of the garage and the house. When a woman (apparently Brenda Sherrill) came to the door, Kraemer identified himself, presented his credentials, and asked if anyone else was inside. The woman replied that only she and her child were in the house. Kraemer and another agent then entered and placed the woman under arrest; inside they also found and arrested defendant Jerry Lewis.

At this point other agents entered the house and brought with them the persons arrested on the driveway. Those arrested were advised of their rights and then, except for defendant Jerry Lewis, were taken to the county jail. Agent Kraemer and several other agents remained in the house with Jerry Lewis to await Agent O'Connor's return with the search warrant. During this time the inside of the house was not searched, although the agents and officers did determine that no one else was in or around the house.

Outside the house, an agent inspected the exterior of the Texas pickup truck. Upon shining his flashlight through the rear door of its camper shell, the agent observed numerous packages about 2 by 4 by 12 inches in size, which were wrapped in foil. The agent entered the camper and found that the foil packages contained marijuana. This information was radioed to Agent O'Connor, who was then applying for a search warrant.

Sometime between midnight and 1 a. m., a search warrant was issued to Agent O'Connor, who then returned to the Lewis residence, advised defendant Jerry Lewis of the warrant, and directed a search of the house. The search of the house revealed a large quantity of marijuana and a bag containing a large amount of currency. A search was also made (after the arrival of the warrant) of defendant Jerry Lewis'...