State v. McGrath, No. A05-1021.
| Decision Date | 06 December 2005 |
| Docket Number | No. A05-1022.,No. A05-1021.,No. A05-1023. |
| Parties | STATE of Minnesota, Appellant, v. Amy Susan McGRATH, Respondent, Julius Anthony Nolen, Respondent, Laura Ann Nolen, Respondent. |
| Court | Minnesota Supreme Court |
Mike Hatch, Attorney General, St. Paul, MN, and Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Shakopee, MN, for appellant.
Mark D. Nyvold, St. Paul, MN, for respondent McGrath.
Richard A. Enga, Taylor Law Firm, Minneapolis, MN, for respondent Julius Nolen.
Robert M. Paule, Minneapolis, MN, for respondent Laura Nolen.
Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; WRIGHT, Judge.
Appellant State of Minnesota challenges the district court's suppression of evidence seized during a search of respondents' home. Appellant contends that the district court erred when it determined that the affiant's omission from the search-warrant affidavit of an informant's extensive criminal history and pending criminal charges, along with the affiant's characterization of the informant as a "concerned citizen," constituted reckless misrepresentations of fact that were material to the finding of probable cause. Appellant also challenges the district court's determination that marijuana residue found in plastic bags recovered during three searches through garbage left for pickup at the curb near respondents' home failed to establish an independent basis for probable cause because it was merely evidence of the residents' personal use of marijuana. We reverse and remand for further proceedings.
On September 23, 2004, Sgt. Fossum of the Minneapolis Police Department conducted a custodial interview of Gary Buckner, a suspect in a series of armed robberies of local pharmacies. During the interview, Buckner admitted committing seven armed robberies in the Twin Cities area. In each robbery, Buckner sought OxyContin tablets for his personal use.
After discussing the robberies, Buckner was asked to identify associates who also were engaged in criminal activity. Among a small number of associates, Buckner implicated respondent Amy McGrath, Michael Ruprecht, and their friend "Laura" who was "one of the prosecuting attorneys in Minneapolis." Buckner characterized McGrath and Ruprecht as cocaine dealers. Buckner stated that he had seen "Laura" use cocaine on multiple occasions between December 2003 and June 2004, a period during which he was renting a room in the basement of the residence of McGrath and Ruprecht. "Laura" was later identified as respondent Laura Nolen.
Sgt. Fossum contacted Det. Skorczewski of the Scott County Sheriff's Office to conduct an investigation so as to avoid a conflict of interest for police officers who had worked with Laura Nolen and her husband, respondent Julius Nolen, who was an Assistant Hennepin County Attorney. On September 27, 2004, Det. Skorczewski interviewed Buckner. This interview focused primarily on the drug-dealing activities of McGrath and Ruprecht. Buckner stated that he had witnessed Laura Nolen using cocaine six to eight times over the six-month period when he lived at the McGrath-Ruprecht residence. Buckner admitted that, although he had not seen Laura Nolen purchase cocaine, it was clear to him that she was buying cocaine from McGrath. Buckner last saw Laura Nolen use cocaine in June or July 2004, shortly before he was forced to move out of the McGrath-Ruprecht residence.
Under the supervision of Det. Skorczewski, Buckner conducted a controlled buy of cocaine at the McGrath-Ruprecht residence. McGrath, Pamela Lazor, and Laura Nolen were present at the residence when Buckner arrived. The three women left when Ruprecht arrived at the residence, and the controlled buy of cocaine between Buckner and Ruprecht occurred after the women's departure.
On November 1, 8, and 15, 2004, Sgt. Fossum conducted searches of the garbage set out at curbside for weekly pickup at the Nolen residence. During the November 1 search, Sgt. Fossum located a plastic bag that he believed smelled of and contained traces of marijuana. The November 8 search produced two plastic bags that Sgt. Fossum believed contained traces of marijuana. Sgt. Fossum retrieved another plastic bag with suspected marijuana residue during the November 15 search. Each bag later tested positive for the presence of marijuana.
On November 16, 2004, Det. Skorczewski submitted to a Hennepin County district judge applications and supporting affidavits for search warrants for the Nolen and McGrath-Ruprecht residences. The district judge signed the search warrants, but not before the judge limited the scope of the search warrant for the Nolen residence by removing references to instrumentalities of sales and distribution of controlled substances. With the assistance of other law-enforcement officers, Det. Skorczewski executed the search warrant for the Nolen residence on November 19, 2004. Laura Nolen, Julius Nolen, McGrath, and Lazor were present at the Nolen residence during the search.1 Cocaine and marijuana were seized during the search of the residence. Cocaine also was recovered from McGrath's pants.
The state filed an eight-count complaint charging defendants McGrath, Ruprecht, Lazor, Laura Nolen, and Julius Nolen with one count of fifth-degree possession of a controlled substance, in violation of Minn.Stat. § 152.025, subd. 2(1) (2004). McGrath, Laura Nolen, and Julius Nolen also were charged with one count of child endangerment, in violation of Minn.Stat. § 609.378, subd. 1(b)(2) (2004). The state later filed amended complaints against each party individually that were otherwise identical to the original complaint.2
The defendants challenged the constitutionality of the search of the Nolen residence, arguing that the information contained in the search-warrant affidavit was insufficient to establish probable cause. Specifically, the defendants challenged the veracity of the affiant and the accuracy of the search-warrant affidavit.
On March 2, 2005, a Franks3 hearing was held at which Det. Skorczewski was the only witness. The district court determined that Det. Skorczewski had recklessly disregarded the truth by referring to Buckner as a "concerned citizen" in the search-warrant application and by withholding from the issuing judge relevant information that was necessary to assess Buckner's credibility and reliability. The district court also determined that, because they merely supplied evidence of noncriminal, personal use of marijuana, the bags containing marijuana residue seized during the garbage searches did not establish an independent basis for probable cause.4 Therefore, the district court suppressed the evidence seized during the search of the Nolen residence.
The state appealed the district court's order. Because the issues in each case are identical, we consolidated the appeals.
Do the totality of the circumstances support a finding of probable cause to issue a search warrant for the Nolen residence?
When the state appeals a pretrial suppression order, the state "must `clearly and unequivocally' show both that the trial court's order will have a `critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). Thus, as an initial matter, we must determine whether the district court's order suppressing evidence will have a critical impact on the state's case against the defendants. Appellate review of the decision to suppress evidence is precluded if the decision does not have a critical impact on the state's case. Id. When the likelihood of a successful prosecution is significantly reduced by the unavailability of the suppressed evidence, the critical-impact standard is met. State v. Kim, 398 N.W.2d 544, 550-51 (Minn.1987).
The state asserts that, without the evidence seized from the Nolen residence, there is no likelihood of a successful prosecution. For each respondent, the drug-possession and child-endangerment charges arise from the execution of the search warrant at the Nolen residence and the evidence obtained during that search. Because no other evidentiary basis for the charges in the complaints exists, we conclude that suppression of the evidence seized from the Nolen residence has a critical impact on the state's ability to prosecute these cases.
The state contends that the district court erred when it (1) determined that the affidavit Det. Skorczewski executed in support of the search-warrant application contained reckless misrepresentations of material fact and (2) declined to use the marijuana evidence seized during the garbage searches as an independent basis for probable cause. When determining whether a search warrant is supported by probable cause, we do not engage in a de novo review. State v. Papadakis, 643 N.W.2d 349, 355 (Minn.App.2002). Rather, giving great deference to the issuing judge's finding of probable cause, we limit our review to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed. State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001); see also State v. Harris, 589 N.W.2d 782, 787-88 (Minn.1999); Papadakis, 643 N.W.2d at 355. A substantial basis in this context means a "fair probability," given the totality of the circumstances. Zanter, 535 N.W.2d at 633 (quoting Ill. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Thus, we consider whether, according to all the information in the affidavit, including statements as to 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." Id. (quoting Gates, 462...
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