State v. Lorenz

• Decision Date: 31 May 1985
• Docket Number: No. C3-83-931,C3-83-931
• Citation: 368 N.W.2d 284
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. James William LORENZ, Appellant.

Page 284

368 N.W.2d 284

STATE of Minnesota, Respondent, v. James William LORENZ, Appellant.

No. C3-83-931.

Supreme Court of Minnesota.

May 31, 1985.

Syllabus by the Court

1. Trial court did not err in refusing to allow defense counsel to question the informant under oath and in denying defendant's motion to suppress on Fourth Amendment grounds.

2. Evidence was sufficient to support defendant's convictions of drug offenses.

Robert J. Hajek, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey Co. Atty., Steven C. DeCoster, Asst. Co. Atty., St. Paul, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

Following a warranted search of the two-bedroom apartment they shared, which resulted in the discovery of cocaine and marijuana in common areas and in the two bedrooms, defendant and Bradley John Eberhard were charged in a two-count complaint with possession of cocaine and possession of over 1.5 ounces of marijuana. After the trial court denied their respective pretrial motions, defendant and Eberhard waived their right to jury trials and let the trial court decide their guilt on the basis of the state's evidence, to which they stipulated. The court sentenced them identically by staying imposition of any prison term and placing them on probation for 3 years subject to certain conditions. Eberhard filed a notice of appeal but never filed a brief and the appeal was dismissed. Defendant's appeal raises two issues: (1) whether the trial court erred in refusing to allow defense counsel to question the informant under oath and in denying defendant's motion to suppress on Fourth Amendment grounds and (2) whether the evidence to which defendant stipulated was sufficient to support his convictions. We affirm.

The affidavit in support of the search warrant application informed the magistrate that (a) in 1981 an informant with a track record of reliability had told police that Eberhard was making deliveries of controlled substances in connection with his employment as a deliverer of vending products to area bars; (b) more recently police had obtained the assistance of a different informant, who made "controlled buys" (detailed in the affidavit) of marijuana from the residence at 515 East Cottage Avenue in St. Paul; and (c) police had checked and determined that Eberhard was the occupant and owner of the residence and that at least one other unidentified person lived there with him. ¹

Police obtained and executed the warrant at 9:00 a.m. on December 10, 1982. Eberhard and defendant were in the apartment when the police entered it and executed the warrant. In Eberhard's bedroom, police found two plastic bags containing white tablets that later were determined not to be controlled substances and a vial containing one gram of cocaine. Eberhard had $129 in cash on his person. In defendant's bedroom dresser, the police found two plastic bags containing a total of 20.5 grams of marijuana, a vial containing .5 grams of cocaine, one marijuana cigarette, $1,093 in cash, and a bottle containing white tablets that later were determined not to be controlled substances. In a kitchen closet, the police found a jar containing some capsules later determined not to be controlled substances, two bags containing a total of 131 grams of marijuana and a baggie with a white powdery substance in it. In the living room, they found a cigar box with some "marijuana roaches" and marijuana residue in it along with cigarette papers. Defendant admitted that a tin found in his jacket and containing a blue capsule and white crushed tablets was his. He also admitted that the marijuana, cocaine and what he called "white crosses" found in his bedroom were his. Eberhard told police that the marijuana found in the kitchen and the cocaine found in his bedroom were his.

1. Defendant claims that the search warrant was defective in that it did not make it clear to the police that they could search only Eberhard's bedroom and the common areas, not defendant's bedroom. He claims further that the trial court should have compelled the disclosure of the identity of the informant or at least should have questioned the informant in camera to determine if the police knew in advance that defendant was a resident but had not made the sales.

The general rule is that a search warrant for a "multiple occupancy building" is invalid unless it describes the particular unit to be searched with sufficient definiteness. 2 W. LaFave, Search and Seizure Sec. 4.5(b) (1978). Defendant concedes that such a warrant is valid, under an exception to the general rule recognized in United States v. Santore, 290 F.2d 51 (2nd Cir.1960), when police, acting reasonably, do not learn until executing the warrant that the building is a multiple occupancy building. He argues, however, that the police knew that there were two occupants and argues that compelling disclosure of the informant (or at least requiring the court to question the informant in camera) would have shown this and would have shown that defendant had not made the sales.

The trouble with defendant's argument is that the "multiple occupancy" rule does not apply when two or more people or families occupy a single residence in common, as where they share common living quarters but have separate bedrooms. Professor LaFave states:

Another type of case which has often been dealt with differently than the usual multiple-occupancy situation is that in which several persons or families occupy the premises in common rather than individually,...