State v. Luciow

• Decision Date: 26 March 1976
• Docket Number: No. 45483,45483
• Parties: STATE of Minnesota, Respondent, v. Theodore Elk LUCIOW, Appellant.
• Court: Minnesota Supreme Court

Page 833

240 N.W.2d 833

308 Minn. 6

STATE of Minnesota, Respondent, v. Theodore Elk LUCIOW, Appellant.

No. 45483.

Supreme Court of Minnesota.

March 26, 1976.

Syllabus by the Court

1. Probable cause for personal search of defendant cannot be established by positing hypothetical reasons to justify the presence of arresting officers at defendant's house.

2. A defendant in Minnesota has the right to challenge the truth and accuracy of allegations in a facially sufficient affidavit which is used to obtain a search warrant.

3. Such challenge should be made at the omnibus hearing. Rule 11, Rules of Criminal Procedure.

4. In this case, the trial court correctly determined that defendant had produced sufficient evidence to put in issue the truth and accuracy of allegations in the affidavit presented to the issuing magistrate.

5. A defendant is entitled to some form of disclosure as provided herein regarding the identity of a confidential informant where he makes a sufficient showing that such evidence is necessary to support his challenge to the issuance of the search warrant.

6. Once defendant makes a sufficient prima facie showing that an affidavit executed to obtain a search warrant contains material false statements, the trial court shall, in accordance with principles endorsed in decisions of the United States Supreme Court and prior decisions of this court, require disclosure of the identity of a confidential informant whose information is relied upon in the affidavit.

7. On remand, the trial court must rule on the validity of the search warrant, either on the basis of the evidence presently before it, or upon that evidence and such other evidence, including disclosure regarding the confidential informant, as it deems necessary to make its ruling. The prosecution may decline to disclose the identity of the confidential informant if ordered to do so by the court. If it so declines, the prosecution must dismiss the charges. The trial court's subsequent rulings on the warrant's validity, in light of its determination as to the truth and accuracy of the supporting affidavit, will govern the disposition of this case.

Bergstein & Foster, Sherman Bergstein and Curtis H. Foster, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Robert W. Johnson, County Atty., Dennis Schloss, Asst. County Atty., Anoka, for respondent.

Considered and decided by the court en banc.

TODD, Justice.

Defendant, Theodore Elko Luciow (Luciow), appeals his conviction on two counts of possession of a controlled substance. He contends the trial court erred in refusing to compel the prosecution to disclose the name of the informant whose information was the basis for the search warrant. Luciow also asserts as error the admission into evidence of substances obtained from his companion at the time of arrest, and certain prosecutorial comments regarding some of those substances.

Since the trial judge's resolution of the informant-disclosure problem affords no clear basis for inferring what his findings of fact and conclusions of law regarding that issue were, we remand for reconsideration of that problem in light of the principles announced herein.

On September 10, 1973, Officer Wayne Billings of the Metropolitan Area Narcotics Squad obtained a search warrant for the search of Luciow, his home at 4220 Jackson Street Northeast in Columbia Heights, and three vehicles. In the affidavit in support of the search warrant, Officer Billings alleged that information constituting probable cause for the search had been transmitted to him by an informant who had demonstrated 'herself/himself reliable in the past by giving your affiant information that has resulted in the issuance of other search warrants, the arrest and conviction of a number of narcotic violators and the seizures of various quantities of narcotic drugs.' On the same date, Officer Billings and several other law-enforcement officials executed the warrant at the Jackson Street address. Luciow was not present at the time the police arrived. After entering the house, Officer Billings discovered a quantity of suspected cocaine on top of a dresser, near some envelopes and other papers addressed to Theodore Luciow at 4220 Jackson Street Northeast.

Shortly thereafter, Luciow and a female companion, Lauren Reese (Reese), drove up to the house in one of the vehicles named in the search warrant, existed from the vehicle, and approached the house, but turned and fled after entering it. After running a short distance, defendant and Reese were stopped by Officer Billings who then conducted a search of both parties. Hashish and amphetamines were found in defendant's pockets, and methaqualone and marijuana were found in Reese's purse. While Officer Billings testified that Luciow stated at the time that all these items, including those found in Reese's purse, belonged to him, at trial Luciow denied having made such a statement.

At the Rasmussen hearing, Luciow claimed the right to inquire behind a search warrant affidavit valid on its face and further moved for disclosure of the identity of the confidential informant. In support of its challenge to the veracity of Officer Billings' affidavit, the defense presented as a witness Elaine Stenseth (Stenseth), defendant's longtime girl friend and the mother of his child. Stenseth testified that she was the person who provided Officer Billings with the information referred to in the affidavit in support of the search warrant. She stated that she had done so because of her jealous anger at defendant at that time and further that she had never previously provided Officer Billings with information. Therefore, it was defendant's position that the affidavit recitations were false in that the informant had not proven herself reliable in the past, thus invalidating the search warrant and the arrest and search pursuant thereto. See, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Burch, 284 Minn. 300, 170 N.W.2d 543 (1969). The testimony of Stenseth was purely subjective and was refuted by Officer Billings who testified that she was not the confidential reliable informant to whom his affidavit referred. Although he acknowledged that Stenseth occasionally gave him information about several people, he maintained that he never used the information because he did not consider her a reliable source. The trial judge sustained objections to all questions defense counsel attempted to ask of Billings which would have shed any light on the identity of the alleged reliable informer referred to in the affidavit.

Following the Rasmussen hearing, the trial court made oral findings and an order, and statement of supporting reasons. It is difficult to interpret precisely what the court below held as some of its rulings are inconsistent. On the one hand, the judge concluded that defendant did not establish by a preponderance of the evidence that the affidavit contained a false material statement and determined that all items taken from both defendant and Reese were constitutionally seized. On the other hand, the judge also characterized this case as presenting 'a particularly difficult problem to the Court' in balancing the individual's right to be free from illegal searches and the public concern with law enforcement, and he proceeded to make the following ruling, which he described as 'extrajudicial': The first count, which charged defendant with possession of the cocaine that had been found in the house, was dismissed, and furthermore, the prosecution was barred from introducing any evidence regarding, or resulting from, the search of the house. However, the trial court permitted the introduction of substances obtained in the personal search of Luciow and Reese. The court also instructed the prosecutor's office to conduct a further investigation in the case to determine whether Officer Billings made any false statement in the affidavit or committed perjury in his testimony at the hearing, and to report its conclusions to the court.

1. Before addressing the central issue posed by this appeal--the extent to which the truth and accuracy of statements in a facially sufficient affidavit in support of a search warrant may be challenged--we must deal with the threshold issue of whether probable cause for the search of defendant and Reese can derive from any source other than the search warrant. The trial judge postulated another theory for finding probable cause, regardless of the warrant's validity, speculating that the officers may have gone to defendant's home to verify information given by the informant, rather than to execute the search warrant. This alternate theory is clearly refuted by Billings' testimony that his purpose was solely to execute the warrant. The legality of the arrest and search therefore must turn solely upon the warrant's validity.

2. We affirm the trial judge's apparent holding that a defendant in Minnesota is entitled to challenge the truthfulness and accuracy of statements in an affidavit in support of a petition for a search warrant. Although as recently as 1960 it could be said that most state courts prohibited any challenge by a defendant to the veracity of a facially sufficient affidavit, King v. United States, 282 F.2d 398, 400, note 4 (4 Cir. 1960), and although the United States Supreme Court has expressly declined to rule on this issue, Rugendorf v. United States, 376 U.S. 528, 531, 84 S.Ct. 825, 827, 11 L.Ed.2d 887, 891 (1964), a number of more recent cases, both state and Federal, have taken the position we adopt here. ¹

The rationale for the old rule is that the Fourth Amendment's requirements are satisfied by the magistrate's ex parte evaluation, prior to issuing a search warrant, of the affiant's veracity; to require the affiant's credibility to again be subjected to scrutiny at a suppression hearing...