State v. McCloskey

• Decision Date: 06 April 1990
• Docket Number: No. C8-89-811,C8-89-811
• Citation: 453 N.W.2d 700
• Parties: STATE of Minnesota, Petitioner, Appellant, v. Jeffrey A. McCLOSKEY, Respondent.
• Court: Minnesota Supreme Court

Page 700

453 N.W.2d 700

STATE of Minnesota, Petitioner, Appellant, v. Jeffrey A. McCLOSKEY, Respondent.

No. C8-89-811.

Supreme Court of Minnesota.

April 6, 1990.

Syllabus by the Court

Search warrant affidavit, which was based on hearsay information provided by an informant, was sufficient to establish probable cause to search residence being used as drug outlet.

Hubert H. Humphrey, III, State Atty. Gen., St. Paul, and Scott A. Hersey, Isanti County Atty., Cambridge, for petitioner, appellant.

Thomas M. Kelly, Kelly & Jacobson, Minneapolis, for respondent.

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

KEITH, Justice.

This is another case dealing with the issue of reliance on information provided by an anonymous informant to establish probable cause to obtain a warrant to search a residence believed being used as a drug outlet. The majority of the court of appeals held that the search warrant affidavit failed to support the issuance of the warrant. State v. McCloskey, 451 N.W.2d 225 (Minn.App.1990). The dissent argued that the affidavit was adequate under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983) and State v. Wiley, 366 N.W.2d 265 (Minn.1985). McCloskey, 451 N.W.2d at 229. We granted the state's petition for review and hold that the affidavit was adequate. ¹

The search warrant in this case was issued and executed on April 1, 1988. During the week preceding the issuance and execution of the search warrant a person walked into the Isanti County Sheriff's office and asked to speak with Sheriff William Schultz. The person, referred to as "CRI" in the affidavit supporting the search warrant application, expressed a concern that defendant was selling drugs to juveniles. CRI did not want to identify himself or herself, explaining that he/she "had a very strong fear of retribution should [defendant] find out who [he/she] was." CRI admitted having purchased marijuana from defendant but said he/she was upset with defendant because defendant was selling controlled substances to juveniles. CRI told the sheriff he/she had seen "crack" at the residence within the last week, that it was in chunk form, approximately 2 1/2 inches in diameter, and was light or white colored. CRI said defendant was talking about the substance in terms of its being cocaine. According to the sheriff, the description provided by CRI "accurately describe[d] the type of cocaine * * * discovered in recent times in the area, being in raw chunk form."

Although CRI refused to give his/her name, he/she agreed to return the next day to help the sheriff in his investigation. CRI returned to the office the next day, as promised, and agreed to ride with the sheriff and show him where defendant's residence was located. On the way, CRI commented that the residence had a detached garage. On arriving, the sheriff saw a small house with a detached garage down a long driveway. CRI gave the sheriff the phone number he/she had used to contact defendant. CRI said defendant had a number of guns, carried a 7-inch blade in his boot, and had a large iguana in the house.

The sheriff verified the phone number as that of defendant and checked with the assessor's office and learned that defendant and his wife owned the house pointed out by CRI. The sheriff also checked police sources. The Isanti County Sheriff's Department contact card showed a DWI arrest in 1982, a probation violation warrant in 1983, a Ramsey County warrant in 1986 for expired plates, and a 1986 Hennepin County warrant for speeding. The traffic records showed defendant's license had been suspended several times for unpaid fines, a no-insurance conviction, a DWI and several speeding violations. Defendant's criminal history showed a 1975 arrest in St. Paul for criminal damage to property, disposition unknown, and an unprosecuted 1977 arrest in St. Paul for car theft.

The sheriff prepared an affidavit setting forth the above facts. A judge granted the application and issued the warrant on April 1, 1988.

Law enforcement officers executed the warrant at 6:40 p.m. that evening. While ordering defendant to open the door to the garage, where defendant was standing, a sheriff's deputy saw a cohort of defendant, James Brandberg, running from one corner of the garage to another with a gram scale in his hands. The officer searched Brandberg and found a tan colored powder substance in two small bags in his wallet and a small bottle containing a white substance in one of his pockets. The deputy saw traces of a light colored powder on the gram scale. Officers found a bag of marijuana in a motorcycle battery box in the garage. On a work bench they found a razor blade, a small knife, a coffee can with a tan powder in it, another coffee can with a white powder, and unused plastic bags. Nearby they found a marijuana pipe. Defendant had $459 on his person. In the master bedroom of the house the officers found $2,000 in cash, a bag of marijuana seeds, a "roach clip," and other paraphernalia. They found more marijuana in the basement and a framed picture with the words "Member International Association of Marijuana Growers and Users." In the living room they found more marijuana and marijuana paraphernalia. A green lizard-type animal apparently was seen at the house. The officers did not see any guns or cocaine. In addition to the controlled substances found on Brandberg's person, the officers found 4.65 grams of methamphetamine in the garage and 24.7 grams of marijuana in the garage and the house. The white powder found in the garage did not contain controlled substances.

Defendant was charged with a number of counts of possessing controlled substances with intent to distribute. At the omnibus hearing the district court, relying on Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), denied defendant's motion to suppress. Defendant then waived his right to a jury trial and the case was submitted to the trial court on stipulated facts. The trial court found defendant guilty as charged.

As we said earlier, the court of appeals reversed in a 2-1 decision, ruling that the trial court erred in denying the motion to suppress.

In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the so-called "two-pronged Aguilar test" as a rigid test that must be satisfied in order to establish probable cause to search or arrest on the basis of hearsay information. Under Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964) the affidavit had to contain sufficient information establishing that the hearsay informant was credible and that the informant obtained his information in a reliable way. Inadequate tips under Aguilar could be saved if the police observed sufficient corroborating information. United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971); see Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).

Gates adopted the so-called "totality of the circumstances" test. The Court said that in applying this standard the magistrate's task is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The Court added that in reviewing the magistrate's determination the reviewing court must give deference to the magistrate's determination of probable cause and should uphold the determination if there was a "substantial basis" for the magistrate's determination. Id. at 238-39, 103 S.Ct. at 2332-33. As the Court later made clear in Massachusetts v. Upton, 466 U.S. 727, 733-34, 104 S.Ct. 2085, 2088-89, 80 L.Ed.2d 721 (1984), under the "totality of the circumstances" test the reviewing court is not to review each component of the affidavit in isolation but is to view them together.

We conclude that when all of the significant facts set forth in the affidavit in this case are viewed together, the affidavit provided the magistrate with a sufficient basis for concluding that the sheriff had the requisite probable cause for believing a search of defendant's house would result in the discovery of controlled...