State v. Wiley

• Decision Date: 17 April 1984
• Docket Number: No. CX-83-1672,CX-83-1672
• Citation: 348 N.W.2d 86
• Parties: STATE of Minnesota, Respondent, v. Earthia WILEY, Appellant.
• Court: Minnesota Court of Appeals

Page 86

348 N.W.2d 86

STATE of Minnesota, Respondent, v. Earthia WILEY, Appellant.

No. CX-83-1672.

Court of Appeals of Minnesota.

April 17, 1984.

Review Granted August 3,1984.

Syllabus by the Court

The en banc panel of the court being evenly divided, the trial court's decision that the affidavit in support of the search warrant was sufficient is affirmed.

C. Paul Jones, State Public Defender, Brian I. Rademacher, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, State Atty. Gen., Thomas L. Johnson, Hennepin County Atty., Minneapolis, for respondent.

Considered and decided by POPOVICH, C.J., and PARKER, FOLEY, WOZNIAK, SEDGWICK and LANSING, JJ., with oral argument waived.

OPINION

FOLEY, Judge.

This appeal arises from a conviction of possession of marijuana in violation of Minn.Stat. §§ 152.01, 152.02, 152.09, 152.15 (1982). Appellant asserts that the trial court erred in three respects: 1) that the affidavit in support of the search warrant was inadequate to establish a finding of probable cause; 2) that the evidence at trial was insufficient to support his conviction; and 3) that the identity of the informant should have been disclosed in order to assure him a fair trial. We affirm.

For purposes of this appeal, the provisions of Rule 4.6 of the Minnesota Court of Appeals Internal Rules, relative to a divided court, is hereby waived.

FACTS

On January 24, 1983, a Minneapolis police lieutenant obtained a search warrant for 1501 Upton Avenue North, Minneapolis, from the Hennepin County District Court. The application for the warrant states, in pertinent part:

On 1-24-83 the CRI came into the Organized Crime office and told me that he hd (sic) been at 1501 Upton Ave. N. on 1-22-83 at 2330 hrs. At that time in the basement he had seen 15-20 handguns and rifles in a cardboard box that the occupant of that dwelling stated were stolen. He also saw narcotics consisting of marijuana and cocaine at the same time. The CRI has been at this dwelling on numerous occasions and has seen stolen property there consisting of guns, stereos, TV's and other misc. items. The occupant is described as a Black Male, late 40's, close to 7 ft. tall, about 300 pounds and he lives there with a white female named Clare. I checked the listing in the cross directory for 1501 Upton Ave. N. and it lists to Clare Bettymae Masanz. I also checked a 1973 Mercedes in front of that address that the CRI indicated is driven by the black male and the white female and I obtained the license number of DMJ 234. This vehicle list (sic) to CLARE BETTYMAE MASANZ, 1501 Upton Ave. N. and is a 4 door blue in color.

* * *

* * *

It should be noted that the CRI has been used over several years successfully.

The lieutenant and several other police officers went to 1501 Upton Ave. N. where they executed the search warrant. During the search the officers seized electronic equipment, guns, and suspected marijuana. ¹

The suspected marijuana was found in two separate containers in one of the bedrooms. One of the containers held approximately 5.5 ounces of loose marijuana. There was a smaller box, labeled "Earthia Wiley, 4/27/82," inside this box, along with the marijuana. The second container, holding approximately .5 ounces of loose marijuana, was a syringe box bearing a label with appellant's name.

The bedroom where the marijuana was found also contained numerous papers with appellant's name on them, letters addressed to appellant at 1501 Upton Ave. N., and clothing in the closet of a size that would comfortably fit appellant. There was conflicting evidence regarding whether appellant actually resided on the premises.

At the omnibus hearing the court ruled that the search warrant was valid and the marijuana properly seized. Appellant's motion to compel disclosure of the informant's identity was denied.

At trial, a public health chemist for the City of Minneapolis testified that in her expert opinion the substance was marijuana. Her opinion was based on two laboratory tests that she had performed: a microscopic examination and a thin layer chromatography.

Appellant had waived his right to a jury trial and the court, sitting as finder of fact, found him guilty as charged.

ISSUES

1. Was there probable cause to issue the search warrant?

2. Was the evidence sufficient to support appellant's conviction?

3. Was the trial court's denial of appellant's motion to compel disclosure of the informant's identity proper?

ANALYSIS

Probable Cause

The United States Supreme Court recently announced a new standard for determinations of probable cause in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The "two pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was rejected in favor of a "totality of the circumstances" test. Gates, --- U.S. at ----, 103 S.Ct. at 2332. Under the new standard, the two prongs of "veracity" or "reliability" and "basis of knowledge" are to be "understood simply as closely intertwined issues that may usefully illuminate the common sense practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Id.

The magistrate's duty is to make a practical, common sense decision whether, based on the circumstances set forth in the affidavit, there is a fair probability that contraband will be found on the premises. Id. at ----, 103 S.Ct. at 2332.

The duty of the reviewing court is "simply to ensure that the magistrate had a 'substantial basis for conclud[ing]' that probable cause existed." Id. (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The Court further stated: "[A]fter the fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " Id., --- U.S. at ----, 103 S.Ct. at 2331 (citing Spinelli, 393 U.S. at 419, 89 S.Ct. at 591). Finally, the Court stated that "resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at ----, 103 S.Ct. at 2331.

The Minnesota Supreme Court adopted the Gates standard in State v. Yahnke, 336 N.W.2d 299 (Minn.1983).

This court recently addressed the issue of probable cause in Hanson v. State, 344 N.W.2d 420 (Minn.App.1984). The facts of Hanson differ from this case, but it is useful to note that this court cited with approval the following summation of the Gates standard:

The test of probable cause is met if the affidavit, interpreted in a common sense and realistic manner, sets forth competent evidence sufficient to lead a reasonably prudent person to believe that there is a basis for the search or that the articles sought are located at the place to be searched. There must be sufficient underlying facts so that the magistrate may draw his own conclusions of whether probable cause exists.

Id. at 423 (quoting the Minnesota Judge's Criminal Benchbook, 1-4 (1983 Supp.)).

Turning to the case at hand, the affidavit in support of the warrant consists mainly of information provided to the police officer by the informant. The information was based on the informant's personal observation of suspected narcotics at the residence. The police verified the ownership of the vehicle allegedly driven by the occupants of 1501 Upton Ave. N. The affidavit further stated that the informant had been used successfully in the past.

This affidavit sets forth evidence sufficient to allow a reasonably prudent person to conclude that there was a basis for the search. The trial court properly admitted the evidence seized pursuant to the warrant.

The dissent finds this affidavit defective because it lacks facts that would tend to establish the reliability of the informant.

It is true that the only statement in the affidavit regarding the informant's reliability is the final sentence: "It should be noted that the CRI has been used over several years successfully." However, even prior to Gates, statements of this type were held to satisfy the "reliability" prong of the rigid Aguilar--Spinelli test. See Longsworth v. District Court, 165 Mont. 539, 530 P.2d 462 (1974) (statement that informant had been used successfully in the past); State v. Mertens, 268 N.W.2d 446 (N.D.1978) (informant had cooperated with affiant in the past). Likewise, statements to the effect that an informant is known to be reliable or has provided reliable information in the past have been held to fulfill the reliability requirement. See 1 W. LeFave, Search and Seizure, § 3.3 at 515 (1978 and Supp.1984).

While this concededly may be a close case, this affidavit does satisfy the more relaxed Gates standard. Gates has been characterized by at least two commentators as providing the issuing magistrate with much more latitude than was had under the Aguilar--Spinelli test. LeFave, supra; The Supreme Court, 1982 Term, 97 Harv.L.Rev. 4, 184-85 (Nov. 1983). Indeed, the court itself stated:

Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and Spinelli to draw such inferences, or to refuse to draw them if he is so minded.

--- U.S. at ----, 103 S.Ct. at 2333.

In rejecting the rigidly applied two prong test, the court noted:

[W]e intended neither a rigid compartmentalization of the inquiries into an informant's "veracity," "reliability," and "basis of knowledge," nor that these inquiries be elaborate exegeses of an informant's tip. Rather, we required only that some facts bearing on two particular issues be provided to the magistrate.

--- U.S. at ----, 103 S.Ct. at 2328, n. 6.

In its...