State of Minnesota v. Torrence Cortez Epps ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1282
State of Minnesota,
Appellant,
vs.
Torrence Cortez Epps,
Respondent.
Filed December 1, 2014
Reversed and remanded
Bjorkman, Judge
Hennepin County District Court
File No. 27-CR-13-17452
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)
Melvin R. Welch, Welch Law Firm, St. Paul, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant State of Minnesota challenges a pretrial suppression order, arguing the
district court erred in concluding that there was no probable cause to issue a search
warrant. We reverse and remand.
FACTS
In March 2013, Officer Lucas Peterson of the Minneapolis Police Department
received information from a confidential reliable informant (CRI) that heroin was being
stored, packaged, and sold from a house located at 3807 Dupont Avenue North. The CRI
identified the seller by name as respondent Torrence Epps, and positively identified Epps
in a photograph.
The CRI informed Officer Peterson that Epps sometimes concealed narcotics
outside of the house “near the rear yard or in his large conversion van.” The CRI
specifically told Officer Peterson that within the last 72 hours he was inside the house
and personally observed Epps “selling small quantities of [h]eroin that he had just
packaged.” The CRI also stated that Epps was armed with a small black handgun at the
time. Officer Peterson’s investigation revealed that Epps is not eligible to possess a
firearm.
Officer Peterson subsequently conducted surveillance, during which he saw
multiple individuals enter the house and depart after a short period of time. Officer
Peterson also observed Epps retrieve something from a GMC conversion van with a
license-plate number that matched the one that the CRI provided. Officer Peterson
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applied for a search warrant, outlining the information above in his supporting affidavit.
In the affidavit, Officer Peterson also stated that the CRI had previously provided
information that led to the arrest and prosecution of narcotics traffickers. A warrant was
issued, and during a search of the residence police discovered 54 grams of heroin.
The state charged Epps with two counts of first-degree controlled-substance crime.
Epps moved to suppress the evidence seized during the search. The district court granted
the motion, concluding that there was not probable cause to issue a search warrant
because the affidavit did not establish that the CRI was reliable. The state appeals.
DECISION
When appealing a pretrial suppression order, the state must “clearly and
unequivocally” show that the district court’s order will have a critical impact on the
state’s ability to prosecute the defendant successfully and that the order is erroneous.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). The critical-
impact standard is met when the likelihood of a prosecution is significantly reduced by
the unavailability of suppressed evidence. State v. McGrath, 706 N.W.2d 532, 539
(Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Epps does not challenge the
state’s assertion that suppression of the heroin seized during the warranted search
prevents the state from prosecuting him for controlled-substance offenses. We agree and
conclude that the state has satisfied the critical-impact requirement.
When determining whether a search warrant is supported by probable cause, we
do not engage in de novo review. Id. A reviewing court must give deference to the
issuing magistrate’s determination of probable cause, and uphold the determination if
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there was a substantial basis for concluding that probable cause existed. State v.
Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991). A substantial basis means a “fair
probability,” given the totality of the circumstances, “that contraband or evidence of a
crime will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.
1995). In assessing the sufficiency of an affidavit supporting a warrant application, we
are careful not to review each component of the affidavit in isolation. Albrecht, 465
N.W.2d at 109.
Where probable cause is based on an informant’s tip, the informant’s veracity and
the basis of knowledge are considered under the totality-of-the-circumstances test. State
v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). The credibility of an informant is not
assumed, and the affidavit must provide the magistrate with “adequate information from
which he can personally assess the informant’s credibility.” State v. Siegfried, 274
N.W.2d 113, 114 (Minn. 1978). “Recent personal observation of incriminating conduct
has traditionally been the preferred basis for an informant’s knowledge.” State v. Wiley,
366 N.W.2d 265, 269 (Minn. 1985). The fact that police can corroborate part of the
informer’s tip as truthful may suggest that the entire tip is reliable. Siegfried, 274
N.W.2d at 115. Police may also establish that an informant is credible by showing that
the informant has a “track record” of providing accurate information. Id. at 114-15.
The state argues that there was ample information in the affidavit to establish that
the CRI’s tip was reliable. We agree. First, within the last 72 hours, the CRI was inside
the house with Epps and saw him packaging and selling heroin. The CRI personally
observed that Epps was armed with a gun at the home. And the CRI reported that Epps
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stored larger amounts of heroin outside the house or in his van. The specificity of this
information, which was based on the CRI’s personal observations, indicates that the tip
was reliable. See State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) (stating that the
assessment of a CRI’s basis of knowledge “involves consideration of the quantity and
quality of detail in the CRI’s report”), review denied (Minn. July 25, 2000).
Second, the affidavit described the CRI’s successful track record, which included
providing information to Officer Peterson that “led to the arrest of narcotic traffickers and
the seizure of narcotics, weapons, ammunition, property and amounts of money which
have been prosecuted within the State and Federal court system.” While Epps argues that
the affidavit should have included far more detail regarding the CRI’s relationship with
police, it is not necessary for law enforcement “to provide specifics of the informant’s
past veracity.” State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004). An affidavit can
establish an informant’s proven track record “by a simple statement that the informant
has been reliable in the past.” Id.
Third, Officer Peterson corroborated various aspects of the CRI’s tip and
independently observed activity consistent with drug sales. In the affidavit, Officer
Peterson indicated that he confirmed Epps’s identity and presence at the address provided
by the CRI. During surveillance, Officer Peterson identified a conversion van bearing the
license-plate number the CRI reported outside of the house. And Officer Peterson
observed Epps retrieve an unidentified object from the van. While these details may not
be highly incriminating on their face, a reviewing magistrate may rely on even minimal
corroboration in assessing the totality of circumstances. State v. McCloskey, 453 N.W.2d
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700, 704 (Minn. 1990). And, corroborating part of an informant’s tip may suggest that
the entire tip is reliable. Siegfried, 274 N.W.2d at 115; see also Wiley, 366 N.W.2d at
269 (stating that even corroboration of facts that are not “key details” lends “credence to
the informant’s tip”).
Moreover, Officer Peterson observed foot traffic off of Dowling Avenue North
that “proceeded to Epps front door and was allowed admittance by an unknown female.”
According to the affidavit, these individuals “stayed only a short time period and then
departed on foot.” Officer Peterson noted that in his experience investigating drug
crimes, frequent foot traffic of this type was consistent with drug trafficking. The district
court read these statements to mean Officer Peterson “observed that a female visitor came
to the residence on foot and left after a short period of time.” This mistake is significant.
The observation of multiple, brief visitors supports a far stronger inference of drug
trafficking than the presence of only one visitor.
Finally, we bear in mind that “the resolution of doubtful or marginal cases should
be largely determined by the preference to be accorded to warrants.” McCloskey, 453
N.W.2d at 704 (quotation omitted). For the reasons discussed above, we conclude that
the totality of the circumstances shows this is not a “doubtful or marginal” case. Rather,
there was a substantial basis for concluding that probable cause existed to support the
warrant, and evidence seized pursuant to that warrant should not be suppressed.
Reversed and remanded.
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