State v. Yaritz

• Citation: 287 NW 2d 13
• Decision Date: 12 October 1979
• Docket Number: No. 49311.,49311.
• Parties: STATE of Minnesota, Respondent, v. Bradley Keith YARITZ, Appellant.
• Court: Supreme Court of Minnesota (US)

287 N.W.2d 13 (1979)

STATE of Minnesota, Respondent, v. Bradley Keith YARITZ, Appellant.

No. 49311.

Supreme Court of Minnesota.

October 12, 1979.

William M. Mahlum and Steven N. Hunt, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., Tom Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Considered and decided by the court en banc without oral argument.

SCOTT, Justice.

Defendant was found guilty of possession of marijuana in excess of 1.5 ounces and possession of marijuana with intent to distribute, and was placed on probation by the trial court. Defendant contends on this direct appeal that the affidavit in support of the application for the search warrant which was used in this case failed to establish probable cause to search his residence and that the 6-day delay in executing the warrant constituted a violation of his statutory rights under Minn.St. 626.11 and his constitutional rights under the Fourth Amendment. We hold that the affidavit was adequate and that the 6-day delay in executing the warrant violated neither the statute nor the constitution, and we accordingly affirm.

1. The affidavit, which we reproduce below in relevant part,¹ refers to hearsay information provided by an unidentified police informant, but a reading of the entire affidavit makes it clear to us that we need not discuss this case in terms of whether the so-called Aguilar-test² was satisfied. This is because — as we held in the recent case of State v. Hawkins, 278 N.W.2d 750 (Minn.1979), in which the affidavit was substantially similar in content with this affidavit — the affidavit contains sufficient information obtained by independent police observation to establish probable cause.

While the Hawkins case disposes of defendant's claim concerning the reliability of the information contained in the affidavit, it does not dispose of the related contention that, even if the information was reliable, it failed to establish probable cause to believe that marijuana would be found in defendant's residence. Relevant to this related contention is our recent decision in Rosillo v. State, 278 N.W.2d 747, 748 (Minn. 1979), where we stated in relevant part as follows:

"Defendant\'s contention is that the affidavit in support of the warrant application did not demonstrate the existence of probable cause for believing that fruits of the crime would be found in the house.

"Although the affidavit did not contain any averment of firsthand information that fruits of the crime would be found at defendant\'s residence, the Fourth Amendment does not make such information essential. All that is required is that the affidavit, interpreted in a commonsense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched. United State v. Rahn, 511 F.2d 290 (10 Cir. 1975). See, also, State v. Wiley, 295 Minn. 411, 417, 205 N.W.2d 667, 673 (1973), where in upholding a warranted search for identification items we stated that `in passing on an application for a warrant, the magistrate is not required to ignore such familiar facts of normal life as the habit of most people to have items of identification at their residence.\'

"In this case the affidavit contained facts justifying the conclusion that defendant had participated in the burglary and that he still had some of the money in his possession. In view of the large number of coins taken in the burglary, over $500 worth, it is unlikely that defendant could have carried on his person all of his remaining share. Since the normal place that defendant would be expected to keep those coins which he could not carry would be at his residence, the search was properly authorized."

See, also, discussion of the issue at 1 LaFave, Search and Seizure, § 3.7, pp. 706-709.

In this case it is significant that the affidavit indicates that when the two controlled sales were arranged by telephone, defendant's house was under surveillance and defendant was observed going straight from his house to the place where the sale took place. Professor LaFave suggests in his treatise that this is the type of additional fact which should be deemed sufficient, in a sale-of-contraband case where the sale has not taken place at the seller's home, to support an inference that the seller stores the contraband on his premises. Id. at 707. In support of this LaFave cites Commonwealth v. Vynorius, 369 Mass. 17, 336 N.E.2d 898 (1975), a case which is closely in point. There the court upheld, as adequate to support a warrant to search a seller's house, a statement in the affidavit that before making the sale on the street the seller first went to his residence and then returned 20 minutes later with the marijuana.

In summary we believe the affidavit did contain information on which the magistrate was entitled to rely and we also believe that the information was sufficient to reasonably support an inference that the marijuana would be found in a search of defendant's house.

2. The only other issue raised by defendant relates to the delay in executing the warrant. A claim such as this requires a two-part analysis: first, whether the statutes dealing with delays in executing a search warrant were violated and, if so, what the consequences of the violation are, and second, whether, because of the delay, probable cause to search no longer existed at the time the warrant was executed.

(a) Minn.St. 626.11, dealing with the issuance of search warrants, provides as follows:

"If the court or justice of the peace is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property or things specified, and to retain such property or things in his custody subject to order of the court or justice of the peace issuing the warrant." (Italics supplied.)

Minn.St. 626.15, dealing with execution of search warrants, provides as follows:

"A search warrant must be executed and returned to the court or justice of the peace who issued it within ten days after its date; after the expiration of this time the warrant, unless executed, is void."

The only Minnesota case dealing with this issue is State v. Van Wert, 294 Minn. 464, 199 N.W.2d 514 (1972), but that case is of little help, the opinion simply stating that the delay of 27 hours in executing the search warrant authorizing a search "forthwith" was not unreasonable.

According to Professor LaFave, statutory...