State v. Souto

• Decision Date: 14 May 1998
• Docket Number: No. C4-96-1957,C4-96-1957
• Citation: 578 N.W.2d 744
• Parties: STATE of Minnesota, Respondent, v. Debra Ann SOUTO, petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 744

578 N.W.2d 744

STATE of Minnesota, Respondent, v. Debra Ann SOUTO, petitioner, Appellant.

No. C4-96-1957.

Supreme Court of Minnesota.

May 14, 1998.

Syllabus by the Court

Information contained in a search warrant application, considered as a whole, did not provide a substantial basis to conclude that there was probable cause to believe that drugs or records of drug activities would be found at the defendant's residence, when there was no nexus between the defendant's drug activities and her home, and the information supporting the application was stale.

John A. Winters, Crookston, for appellant.

Hubert Humphrey, III, Attorney General, by Thomas R. Ragatz, Assistant Attorney General, David M. Olin, Pennington County Attorney, for respondent.

Heard, considered and decided by the court en banc.

OPINION

GARDEBRING, Justice.

Debra Ann Souto appeals from her conviction in the Pennington County District Court for possession of a controlled substance in the fifth degree in violation of Minn.Stat. § 152.025, subd. 1(2), 3(b) (1996). The conviction resulted from a search of Souto's residence, pursuant to a warrant, that uncovered a vial containing less than one gram of methamphetamine.

Souto challenges the sufficiency of the information contained in the warrant application to establish probable cause to believe that drugs or records concerning drug transactions would be found at her residence. Specifically, Souto argues that the affidavit is deficient in the following ways: it fails to establish a nexus between her alleged drug activities and her residence; it relies on stale information; and it fails to provide sufficient information regarding the reliability of the informant. Because we hold that there is no substantial basis for a probable cause determination that drugs or other incriminating evidence would be found at the residence at the time it was searched, we reverse the court of appeals and vacate Souto's conviction.

On September 8, 1994, Special Agent Ron Woolever of the Paul Bunyan Narcotic Task Force, a multi-county anti-drug crime unit, executed a search warrant on Souto's residence, looking for drugs and documents linking her to suspected drug trafficker, Karl Heinrichs. The warrant was one of ten executed that day as part of an extensive investigation of drug activity that involved 35 to 40 individuals in Pennington County. The affidavit in support of the search warrant application states, in pertinent part:

On November 17, 1993, S/A Woolever spoke with United States Postal Inspectors, Al Eckland and Steve Crow, with Eckland and Crow telling S/A Woolever that they had intercepted a package addressed to Debbie Souto of 1516 Northland Village, # 104, Thief River Falls, MN 56701, with a return address from "D", of 6333 Edgerton Way, Carmichael, CA, 95606. Postal Inspectors Eckland and Crow told S/A Woolever that the package would have to be returned to them from the Thief River Falls Post Office to the Minneapolis/St. Paul [Office], whereas [sic] they could get a certified canine to sniff the package.

On November 19, 1993, S/A Woolever spoke with U.S. Postal Inspectors Al Eckland and Steve Crow, with Eckland and Crow stating that the package addressed to Debbie Souto had in fact, arrived in their custody, and had in fact, been positively hit upon by a Postal Inspection canine, indicating a controlled substance. Subsequent to these facts, a warrant was drafted and signed by the Honorable Magistrate J. Earl Cudd on November 19, 1993.

On Saturday, November 20, 1993, S/A Woolever met with U.S. Postal Inspectors Al Eckland and Steve Crow in the city of Thief River Falls, where a controlled delivery of a package addressed to Debbie Souto was attempted to be delivered to the residence of Debbie Souto, known as 1516 Northland Village, # 104, Thief River Falls, MN 56701. After numerous attempts, the package was not received and subsequently the package was turned over to S/A Woolever's custody at a later date.

* * * * * *

On Thursday, May 5, 1994, at approximately 2:00 p.m., S/A Woolever along [with] other Police Officials met with [Confidential Reliable Informant] CRI# 4, who had proven reliable and credible through information received that was corroborated through North Dakota BCI Special Agent John Fugelberg, in Grand Forks, ND.

* * * * * *

CRI# 4 told agents that between the months of September 1993 and February 1994, CRI# 4 would have parties at his residence, located in rural Pennington County, sometimes as many as 3 times a month, during the weekends. Numerous individuals would show up, smoke marijuana, and ingest methamphetamine either by smoking or snorting. CRI# 4 went on to further state that the individuals mostly known for smoking or snorting methamphetamine were [thirteen named individuals, including Souto]. CRI# 4 also stated that on most occasions when [Collin Bryl] would show up, [Bryl] would have his own supply of methamphetamine, otherwise the methamphetamine was supplied at the parties by [John Matson], or [CRI# 4]. CRI# 4 also stated that on most occasions at these parties, marijuana was prevalent, and was usually supplied by [Mark Delage] or [Wayne Delage].

* * * * * *

CRI# 4 told agents that while having a conversation with [Heinrichs] in February 1994, [Heinrichs] stated to CRI# 4 that he received his methamphetamine from a female in the Sacramento, CA area, and the female would mail packages overnight express mail to [Beef] (at this time unknown), or other friends of [Heinrichs].

* * * * * *

CRI# 4 stated that in the later weeks of February 1994, CRI# 4 purchased 1 ounce of methamphetamine from [Heinrichs] for $1700 in U.S. currency. This transaction took place at the [Heinrichs] residence located in Fargo, ND. CRI# 4 stated to agents that he sold this methamphetamine to [five named persons, one of whom was Souto] from the Thief River Falls area.

Your affiant knows through information received from Federal, State and local law enforcement officers and a number of Confidential Reliable Informants, that [Souto] is involved in the possession and/or distribution of methamphetamine, and/or marijuana on a wide scale, in and around the Thief River Falls, Pennington County area, with a known affiliation being [Heinrichs], a former Thief River Falls native, now living in Fargo, ND.

Your affiant also knows that numerous phone calls were placed and received between the [Heinrichs/Toppen] residence and the [Souto] residence, during the last year, with this knowledge being supplied through the use of a Pen Register and Trap and Trace.

Based on the above facts, your affiant believes that [Souto] is involved with [Heinrichs] and/or [Toppen] (and/or other individuals in the Thief River Falls/Pennington County area) in a continuing criminal enterprise involving the possession and/or distribution of methamphetamine and/or marijuana throughout the Thief River Falls, Pennington County area.

The affidavit goes on to state that, based on the officer's training and experience with narcotics operations, he knew that drug traffickers maintain records, documents, etc., relating to the trafficking and that these items are usually maintained within the trafficker's home or vehicle. The warrant application sought authorization to search the "premises described as P.O. Box 267, St. Hilaire, MN 56754," any vehicles located there, and Souto's person. ¹ The affidavit does not state whether Souto lived at or frequented this residence.

Upon execution of the search warrant, police found a brown vial in Souto's purse containing trace amounts of methamphetamine. They also seized other drug paraphernalia. Souto was subsequently charged with possession of the methamphetamine in violation of Minn.Stat. § 152.025, subd. 1(2), 3(b). After a pretrial omnibus hearing, the court denied Souto's motion to suppress the evidence for lack of probable cause to support the search warrant and, following a bench trial, found Souto guilty of a controlled substance crime in the fifth degree.

The court of appeals affirmed Souto's conviction, holding that the search warrant was supported by probable cause. The court reasoned that "[a]lthough the application may lack a strong link between the criminal activity and Souto's residence, the application reflects a more important link: that between the criminal activity and Souto herself." State v. Souto, No. C4-96-1957, 1997 WL 177653 (Minn.App. April 15, 1997) (unpub.) review granted (Minn., June 30, 1997) (slip op. at 6). In addition, the court held that the reliability of the informant was adequately established. Id. at 7.

As she did at the court of appeals, Souto now challenges the probable cause determination on three grounds: (1) that the affidavit contained no information indicating that any contraband or evidence of a crime would be found at a residence, (2) that the information contained in the affidavit was "stale," and (3) that the informant's reliability was not adequately established.

Our review of a district court's probable cause determination is limited, with great deference afforded to the issuing court. State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983)). Rather than considering the issue de novo, this court's task on appeal is to "ensure that the issuing judge had a 'substantial basis' for concluding that probable cause existed." State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995). Furthermore, we have previously held that our consideration is limited to the information presented in the affidavit, rather than to the information actually possessed by the police. Novak v. State, 349 N.W.2d 830, 831 (Minn.1984).

To determine whether the issuing court had a substantial basis for finding probable cause to search Souto's apartment, we look to the "totality of the circumstances" test for probable cause promulgated by the Supreme Court in Gates:

The task of the...