State v. Valento, C0-86-1968
| Decision Date | 26 May 1987 |
| Docket Number | No. C0-86-1968,C0-86-1968 |
| Citation | 405 N.W.2d 914 |
| Parties | STATE of Minnesota, Respondent, v. Paul Raymond VALENTO, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court did not err in ruling that the facts alleged in the affidavit were sufficient to establish probable cause for the issuance of a search warrant.
2. The trial court did not err in ruling that the facts alleged in the affidavit justified granting an unannounced nighttime search.
3. The trial court erred by ordering money seized from appellant during his arrest to be forfeited without a separate proceeding as required under Minn.Stat. Sec. 152.19 (1986).
Hubert H. Humphrey, III, Atty. Gen., Thomas Foley, Ramsey Co. Atty., and Steven C. DeCoster, Asst. Co. Atty., St. Paul, for respondent.
Paul W. Rogosheske, Thuet, Lynch, Pugh & Rogosheske, South St. Paul, for appellant.
Heard, considered and decided by PARKER, P.J., and SEDGWICK and LANSING, JJ.
This appeal is from a conviction for possession of cocaine. Appellant claims the search warrant that led to discovery of the cocaine was issued without probable cause. He also contends the trial court denied his right to due process by forfeiting $892 that was in his possession at the time of his arrest. We affirm in part and reverse in part.
On July 11, 1986, Deputy Sheriff Warren John Robinson of the Ramsey County narcotics unit appeared before a Ramsey County judge to request a search warrant for 4535 Hodgson Road in Shoreview, Minnesota. Robinson's request was based entirely on the following information in the affidavit attached to the warrant request:
Affiant received information from a Confidential Informant (CI) that the CI could purchase a quantity of cocaine from a person unknown to the CI through an Unwitting Informant (UI). Affiant has met with the CI for the purpose of buying a quantity of cocaine from the unknown person through the UI. Affiant used the following procedure: Affiant met with the CI, Affiant searched the CI for money and controlled substances and none were found, Affiant then supplied a quantity of funds from the Ramsey Co. Narcotics buy fund. Surveillance of the CI was maintained to a predetermined location where the CI met UI. A short time later the UI was observed leaving the meet location. Surveillance was maintained of the UI to 4535 Hodgson Rd, Shoreview MN, 55126 where the UI was observed entering the residence. A short time later the UI was observed leaving the residence and surveillance was maintained to a location where the CI met with the UI. A short time later the CI left the meet location, surveillance was maintained of the CI to a predetermined meet location where the CI gave me a quantity of cocaine, and at that time told me that the CI was given the cocaine by the UI. Affiant then searched the CI for monies and controlled substances and none were found. Affiant took the cocaine to the St. Paul Crime Lab for analysis and it was found to be in fact cocaine. * * *
* * *
* * *
Affiant has checked with Northern States Power concerning subscriber information about 4535 Hodgson Rd, Shoreview MN 55126. NSP lists Deborah Lynn Smoyer as the subscriber for power at 4535 Hodgson * * *. Affiant checked with NW Bell security for subscriber information * * * and the number checks to a D. L. Smoyer, 4535 Hodgson Rd. Shoreview MN.
Affiant knows that the transaction described above took place within the past 72 hours.
The judge signed the search warrant in Robinson's presence on July 11. From that date until July 15, Ramsey County officers conducted intermittent surveillance outside the premises of 4535 Hodgson Road. The officers observed a car driven by appellant Paul Valento coming and going from the residence. Valento's ownership of the car was verified through a registration check. Criminal record checks on both Valento and Smoyer, who is Valento's girlfriend, revealed no prior convictions.
At about noon on July 15, 1986, deputy Robinson and another officer arrived at the home to execute the search warrant. They parked their unmarked car in front of the house and raised the vehicle's hood as though the car were broken down. The officers then knocked on the door, and a female later identified as Smoyer looked out the window and asked them what they wanted. Robinson asked to use the phone to get help with his car. Smoyer opened the kitchen door and Robinson handed her a copy of the warrant as he entered. Other officers then arrived to secure the premises.
During the search the officers found and seized a triplebeam scale that had on its weighing tray a trace amount of white powder that was analyzed and determined to be cocaine, and a "tootstraw" or "snorter" for cocaine (a cylindrical object 2-3 inches long) with a spoon. The officers also recovered a receipts ledger which contained a listing reading:
Peg 1/8 ounce $375
Next to the ledger was a check, with the payee's name left blank, from Peggy Hurley in the amount of $375.
The officers also found and seized the following items in various parts of the house: a sifter/grinder-type utensil with trace amounts of powder on it, several plastic bags containing trace amounts of white powder, a paper bindle (a folded piece of paper) with trace powder, a pair of black leather pants containing a bindle of cocaine in the pocket, and a bottle of Inositol (a vitamin product often used for cutting cocaine).
As the officers were conducting the search, Valento entered the premises. When he brought to the officers' attention a .357 pistol holstered under his arm, he was frisked and disarmed. Valento admitted to living at 4535 Hodgson, but refused to comment about the scale. He was then arrested for possession of the trace amounts of cocaine found on the scale. When asked whether he sold cocaine, Valento said he did not sell it, but he used about 1/8 ounce per day. When asked about the transactions recorded in the ledger, Valento allegedly responded, "I sell some sometimes." The police also confiscated $892 in cash which had been found in Valento's vest pocket.
On July 17, 1986, Valento and Smoyer were charged by complaint with possession of cocaine. At the suppression hearing prior to trial, the trial court found the search warrant was based on probable cause and that evidence seized pursuant to its execution could be admitted at trial. Valento waived his right to a jury trial and the case was submitted to the trial court based on the suppression hearing evidence, attachments to the complaint, and the criminologist's report. The court found Valento guilty as charged.
At the sentencing hearing the trial court ruled that the $892 was money received from sales of cocaine and therefore would be forfeited. Valento was sentenced to a year and a day, execution stayed, with five years probation, one condition of which was serving 45 days in the County Correctional Facility. Stay of the workhouse term pending appeal was denied by the trial court, the court of appeals and the supreme court. The trial court also refused to reconsider the forfeiture of Valento's $892.
1. Did the trial court err in ruling that the facts alleged in the affidavit were sufficient to establish probable cause for the issuance of the search warrant?
2. Did the trial court err in ruling that the facts alleged in the affidavit justified granting an unannounced nighttime search?
3. Did the trial court err in ordering the money seized from Valento to be forfeited without a separate proceeding, as required by Minn.Stat. Sec. 152.19?
The presence of probable cause is to be determined under a "totality of the circumstances" test:
The task of the issuing magistrate 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.
State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).
In two previous decisions the supreme court has found sufficient probable cause in circumstances similar to this case. In State v. Hawkins, 278 N.W.2d 750 (Minn.1979), the court characterized the facts as follows:
[T]he affidavit, although poorly worded, indicates (a) that the officers had participated in two "controlled purchases" within the previous 2-week period (one of the two being within the previous 72-hour period); (b) that such participation involved providing an unidentified informant with money and then observing his movements and those of his contact; (c) that the unidentified informant went to the residence of a man named Cain, who in turn went to the defendant's residence; (d) that Cain emerged from defendant's residence after only a minute inside; and (e) that Cain then gave heroin to the unidentified informant, who gave it to the officers.
Under those facts the supreme court found sufficient probable cause It is true that what the police saw during the "controlled purchase" was not enough to establish beyond a reasonable doubt that the heroin which the informant got from Cain came from within the residence, since the police were unable to search Cain before he went into the residence. Their observations, however, were sufficient to justify concluding that probably the heroin came from the residence. Stated differently, the reasonable inference which the magistrate was justified in drawing from the information provided in the affidavit was that Cain got the heroin from someone at the residence and that heroin was being kept there. Under the circumstances, we believe that the affidavit contained sufficient information obtained by independent police observation to establish probable cause.
The facts of Hawkins were...
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