State v. Owens
| Decision Date | 08 September 2020 |
| Docket Number | A19-1871 |
| Court | Minnesota Court of Appeals |
| Parties | State of Minnesota, Respondent, v. Lavelle Darnell Owens, Appellant. |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed in part, reversed in part, and remanded
Blue Earth County District Court
Keith Ellison, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul, Minnesota; and
Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
After a trial by stipulated evidence, appellant challenges the district court's denial of his motions to suppress the results of a search warrant and the district court's decision to convict and sentence him for both possession of a revolver and possession of shotgun shells. We affirm the district court's decisions to deny the suppression motions. The district court had a substantial basis to conclude that probable cause existed and the district court did not clearly err in concluding that the warrant did not contain misrepresentations. In addition, we affirm the separate convictions for the two possession offenses, but we reverse appellant's two sentences and remand for the district court to vacate one of the two sentences.
On July 20, 2017, law enforcement officers working as part of the Minnesota River Valley Drug Task Force (MRVDTF) attempted a controlled purchase of a handgun using a confidential reliable informant (the informant). After the transaction, Commander Jeffrey Wersal applied for, obtained, and executed a warrant to search the residence of appellant Lavelle Darnell Owens. Among the items seized from Owens's residence, officers recovered a loaded Smith & Wesson .38 caliber revolver from the bedroom and four 12-gauge shotgun shells from the kitchen.1 Respondent State of Minnesota charged Owens with the following three crimes: (1) being an ineligible person in possession of a firearm in violation of Minnesota Statutes, section 624.713, subdivision 1(2) (2016); (2) being an ineligible person in possession of ammunition, also in violation of section 624.713, subdivision 1(2); and (3) being an ineligible person in possession of ammunition in violation of Minnesota Statues, section 609.165, subdivision lb(a) (2016).
Owens contested the basis and validity of the search warrant. First, he made a motion to suppress the results of the search warrant, arguing that the supporting affidavit lacked probable cause. Second, he questioned the validity of the search warrant, arguing that the affidavit contained material misrepresentations of fact.
The application for the search warrant of Owens's residence on Broad Street listed the following four items that the affiant (Wersal) believed would be located inside the residence: firearms, ammunition, prerecorded MRVDTF funds, and Owens himself, from whose body Wersal hoped to obtain a DNA sample. According to Wersal's affidavit, the following facts justified a search of Owens's residence on Broad Street. In July 2017, an informant told law enforcement officers that he could help them purchase a handgun from B.R. Specifically, "[the informant] advised that [B.R.] would be getting the handgun from a [B]lack male who [the informant] believed to live on Broad Street." Law enforcement officers had the informant contact B.R., who agreed to sell the informant a gun for $300. Law enforcement officers provided the informant with $300 in prerecorded funds. At the agreed-upon location and at the agreed-upon time, B.R. met with the informant, took $200 as an initial payment, and left to get the gun. Law enforcement officers followed B.R. directly to Owens's residence on Broad Street, where B.R. met with Owens. Together, they went for a walk before getting into B.R.'s vehicle and driving to Neubert Lane, in LeHillier, Minnesota. Law enforcement officers conducting surveillance on B.R. and Owens lost sight of them for approximately five minutes at this point. After this five-minute period, law enforcement officers followed B.R. and Owens as they travelled backto Owens's residence, where Owens exited the vehicle. B.R. then contacted the informant and arranged to meet for the exchange. At the agreed-upon location, B.R. gave the informant a shoebox containing 13 live rounds of .38 caliber ammunition and a Daisy BB gun. The informant gave B.R. the remaining $100. Based on these facts in Wersal's affidavit, the district court signed the requested search warrant for Owens's residence.
In his motion to suppress the results of the search warrant, Owens argued that because of the gap in surveillance and because B.R. and Owens drove to LeHillier, Wersal's affidavit did not establish probable cause to believe that evidence of a crime would be found in Owens's residence. After hearing arguments, the district court denied the motion. The district court concluded that despite the five-minute period when the surveillance officers lost sight of Owens and B.R., and despite the intervening drive from Owens's residence to Neubert Lane, the facts in Wersals' affidavit established a sufficient nexus between the transaction with the informant and Owens's residence to believe that evidence of a crime would be found in Owens's residence.
Owens subsequently requested a Franks hearing, arguing that the warrant was invalid because Wersal's affidavit contained intentional or reckless misrepresentations of fact. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978) (). To support his motion, Owens submitted an affidavit from B.R. contesting the informant's representations, as attributed to the informant by Wersal in the affidavit. The district court conducted an evidentiary hearing on the motion, admitting testimony from both B.R. and Wersal.
B.R. denied telling the informant that the gun would come from a Black male who lived on Broad Street, denied driving directly to Owens's residence after the first meeting with the informant, denied going for a walk with Owens, denied driving with Owens to LeHillier, and denied ever getting in the car with Owens. B.R. testified that although he did see Owens at Owens's residence during the transaction, Owens did not provide him with a firearm, did not provide him with ammunition, and had nothing to do with the transaction. On cross-examination, the state impeached B.R.'s testimony by showing him photographs that conflicted with his statements. B.R. also admitted that Owens is a close friend and B.R. did not want Owens to get in trouble.
The state then introduced the testimony of Wersal, who testified that, in a briefing before the transaction, "[the informant] said he thought that [B.R.] would get the firearm from a [B]lack male who lives somewhere on Broad Street." Wersal testified to what he and other officers observed regarding what B.R. and Owens did and where they went during the transaction. The testimony was consistent with the facts in Wersal's affidavit. Wersal also testified that several of B.R.'s statements conflicted with Wersal's own observations. Wersal also explained that B.R.'s statements regarding Owens could not be reconciled with the photographs of B.R. and Owens taken by law enforcement officers during the transaction.
The district court found that Wersal's testimony and the photographs contradicted B.R.'s testimony. Ultimately, the district court credited the state's evidence, concluded that "there were no material misstatements in the affidavit," and denied the motion to suppress the results of the search warrant.
After the district court's decision denying Owens's challenge pursuant to Franks, the case proceeded to trial. Before trial was to begin, however, the parties agreed to obtain review of the pretrial rulings pursuant to rule 26.01, subdivision 4, of the Minnesota Rules of Criminal Procedure. Accordingly, Owens waived a jury trial, and the parties submitted the case by stipulating to the state's evidence. The district court received the state's evidence and found Owens guilty on all three counts.
Regarding count one, the district court determined that Owens knowingly possessed a firearm in his bedroom. Regarding count two, the district court determined that Owens knowingly possessed 12-gauge shotgun shells in his kitchen. Regarding count three, the district court restated its earlier finding that Owens knowingly possessed a firearm in his bedroom.2 For each of the three counts, the district court also found that Owens had previously been convicted of a crime of violence. At sentencing, the district court did not enter a conviction for count three,3 and imposed two, concurrent 60-month sentences for counts one and two. This appeal followed.
On appeal, Owens argues there was insufficient probable cause to issue the search warrant because the affidavit failed to establish a sufficient nexus between the transaction with the informant and Owens's residence. Owens argues that the nexus is insufficient because the surveillance officers lost sight of B.R. and Owens for five minutes in LeHillier, Minnesota, and because B.R. travelled to Owens's residence on Broad Street and to Neubert Lane in LeHillier, Minnesota. We are not persuaded that the five-minute surveillance lapse and the intervening drive to LeHillier during the transaction defeat or negate the connection between the transaction and Owens's residence. Because the district court had a substantial basis...
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