State of Minnesota v. Albert William Brown ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1683
State of Minnesota,
Respondent,
vs.
Albert William Brown,
Appellant.
Filed December 12, 2016
Affirmed
Connolly, Judge
Hennepin County District Court
File No. 27-CR-14-13125
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Michael M. Sawers,
Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, Minnesota (for
appellant)
Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
In this appeal following his conviction after a jury trial, appellant argues that the
search warrants for himself and his home were not supported by probable cause because
the district court erred in concluding that the confidential informant was reliable. Because
we conclude that the confidential informant was reliable and the search warrants were
supported by probable cause, we affirm.
FACTS
On May 6, 2014, a deputy sheriff applied for one search warrant for a house located
at 3620 Penn Avenue North (3620 Penn) in Minneapolis and another for the person of
appellant Albert William Brown (the warrants).1 In the applications for the warrants, the
deputy stated that, in April 2014, he received information from a confidential reliable
informant (CRI) that a man named “Mo” was selling narcotics from 3620 Penn; that
persons in the residence had at least one handgun; and that another male lived with “Mo”
at 3620 Penn and went by the street name “Butter.” The applications for the warrants stated
that the CRI
provided names and addresses of parties known to the CRI to
be involved in the distribution of narcotics to [the deputy and]
. . . provided information to local law enforcement officers
regarding narcotics traffickers in the twin cities metro areas in
the past [that] was independently corroborated by [the deputy]
and other law enforcement officers and found to be true and
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The application for the search warrant of 3620 Penn and for the search warrant of
appellant’s person are substantially similar, detailing nearly identical allegations and
supporting circumstances.
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correct. Furthermore, [the] CRI has provided information that
has led to the seizure of narcotics and weapons.
The deputy was able to identify “Mo” and showed the CRI a photo of him. The CRI
positively identified “Mo” as one of the men living at 3620 Penn that sells cocaine. The
deputy did computer checks for 3620 Penn and learned that appellant was associated with
the address. The CRI positively identified appellant as the other male, “Butter,” living at
3620 Penn and selling cocaine. The applications for the warrants also noted that Violent
Offender Task Force (VOTF) officers executed a search warrant at 3620 Penn in the past
and recovered a large amount of cocaine.
The applications for the warrants also stated that within 72 hours of applying for the
warrants, the deputy met with the CRI, checked him for money and contraband, found
none, and “[u]nder the direction and control of [the deputy] and other VOTF officers, the
CRI conducted a controlled purchase of crack cocaine from [appellant] from the residence
at 3620 Penn.” (Emphasis added). After meeting with appellant, the CRI returned to the
deputy with crack cocaine. The deputy checked the criminal-history records for appellant
and learned that he had been arrested numerous times for narcotics crimes; specifically he
was found with narcotics and a loaded .223 assault rifle in 2010. Based on “the information
received from the [CRI], previous police contact history, [and] the controlled buy of crack
cocaine from [3620 Penn, the deputy] believe[d] that narcotics and firearms [were] located
at [3620 Penn].”
On May 6, 2014, the district court judge issued warrants for the search of 3620 Penn
and for appellant’s person. The warrants were executed on May 8. On appellant’s person
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the police found: (1) 3.5 grams of crack cocaine; (2) approximately 11 crushed pills of
suspected ecstasy; and (3) $2,056 in U.S. currency. At 3620 Penn the police found: (1) two
digital scales; (2) a soda bottle with 12.03 grams of suspected cocaine; (3) a bag containing
150.82 grams of marijuana; and (4) $2,205 in U.S. currency.
During his interview with police, appellant admitted that (1) everything in the house
was his; (2) he lived in the basement while “Mo” lived upstairs, and (3) he and “Mo” were
the only ones who lived at the house. On May 9, 2014, a complaint was filed, charging
appellant with one count each of (1) first-degree sale of ten grams or more of a controlled
substance (cocaine); (2) third-degree possession of three grams or more of a controlled
substance (cocaine); and (3) fifth-degree sale of a controlled substance (marijuana).
On July 9, 2014, appellant filed a motion to suppress evidence arguing that the
warrants were not supported by probable cause because the CRI was not reliable, the
officers failed to independently corroborate the CRI’s tip, and the controlled purchase did
not follow the reliable procedure for conducting controlled purchases. The district court
denied the motion, concluding that the judge issuing the warrants had a substantial basis to
conclude that probable cause existed that contraband would be found at 3620 Penn and on
appellant’s person. Appellant was subsequently tried by a jury and convicted on all three
counts.
DECISION
An appellate court reviewing a district court’s probable-cause determination made
upon issuing a search warrant applies a deferential, substantial-basis standard of review.
State v. Rochefort, 631 N.W.2d 802, 804 n.1 (Minn. 2001).
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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. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (quotation omitted).
Appellant argues that the warrants for 3620 Penn and his person were not supported
by probable cause because the district court erred in concluding the CRI was reliable.
Courts consider six factors to assess the reliability of a confidential, but not anonymous,
informant:
(1) [A] first-time citizen informant is presumably reliable;
(2) an informant who has given reliable information in the past
is likely also currently reliable; (3) an informant’s reliability
can be established if the police can corroborate the
information; (4) the informant is presumably more reliable if
the informant voluntarily comes forward; (5) in narcotics
cases, “controlled purchase” is a term of art that indicates
reliability; and (6) an informant is minimally more reliable if
the informant makes a statement against the informant’s
interests.
State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004). The first, fourth, and sixth factors
are not relevant to this case because this was not a first-time citizen informant, it is unclear
whether or not the informant voluntarily came forward, and it is unclear that the CRI’s
statements were against his own interests.
“The second factor is fulfilled by a simple statement that the informant has been
reliable in the past because this language indicates that the informant had provided accurate
information to the police in the past and thus gives the magistrate . . . reason to credit the
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informant’s story.” Id. (quotation omitted). In the application for the search warrant, the
deputy stated:
The CRI has provided names and addresses of parties
known to the CRI to be involved in the distribution of narcotics
to [the deputy]. The CRI provided information to local law
enforcement officers regarding narcotics traffickers in the twin
cities metro areas in the past. This information was
independently corroborated by [the deputy] and other local law
enforcement officers and found to be true and correct.
Furthermore, this CRI has provided information that has led to
the seizure of narcotics and weapons.
Appellant argues that this statement is inadequate to allow the district court to make an
independent and informed decision regarding the reliability of the informant. But Ross
specifically states that “specific details of the past veracity of the CRI” do not need to be
alleged. Id. We conclude that the second factor favors affirming the district court’s denial
of the motion to suppress.
Appellant also argues that the police did not corroborate any of the facts provided
by the CRI to establish reliability. The district court concluded that “officers investigated
and corroborated the identities of ‘Mo’ and ‘Butter’ by conducting computer checks and
obtaining a positive identification for [Mo] and [appellant] from the CRI prior to applying
for a search warrant.” Additionally, the district court found that “the controlled buy adds
to the reliability and establishes the CRI’s basis of knowledge in this case.”
But in narcotics cases, “controlled purchase” is a term of art and indicates reliability.
Id. In this case, the applications for the warrants clearly state: “[T]he CRI conducted a
controlled purchase of crack cocaine from [appellant] from the residence at 3620 Penn.”
(Emphasis added). Because “controlled purchase” is an accepted term of art, we assume
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that when an experienced drug enforcement officer identifies a controlled purchase as such,
it is a proper controlled purchase. See State v. Ward, 580 N.W.2d 67, 73 (Minn. App.
1998) (concluding that when “controlled purchase” is not used in an affidavit by an
experienced drug enforcement officer, it was not a proper controlled purchase).
The controlled purchase supplied corroboration for the informant’s tip. The
applications for the warrants state that in April 2014 the CRI told the police that “Mo” was
selling narcotics from 3620 Penn and that there was another individual living there that
goes by the street name “Butter.” The CRI also stated that “Mo” drives a gold-colored
Suburban that is parked behind the residence. The police observed a gold-colored
Suburban parked behind 3620 Penn. Then, after receiving the confidential tip and within
72 hours of the issuance of the warrant, at least six days after originally getting the tip from
the CRI, the police conducted a controlled purchase from appellant at 3620 Penn. All of
this information was included in the four corners of the applications for the warrants.
Unless the controlled purchase was improper, the controlled purchase corroborated the
CRI’s tip that cocaine was being sold out of 3620 Penn by “Mo” and appellant.
Appellant alleges that the controlled purchase was unreliable and thus cannot be
relied upon by the magistrate in issuing the warrants. Appellant argues that the applications
for the warrants (1) do not indicate whether the deputy “simply asked the informant to turn
out his pockets or whether [the deputy] conducted an actual search of the informant;”
(2) “fail to disclose the amount of money supplied to the informant;” (3) do not indicate
whether the CRI had any other drugs or contraband or the prerecorded funds after the buy;
and (4) “[did] not indicate whether the police completed a post-buy search of the [CRI] to
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determine whether he actually purchased the crack cocaine from [appellant].”
Additionally, appellant argues that the controlled purchase is not proper because it was not
audio recorded by the police.
“[W]here the affidavit refers to a ‘controlled purchase,’ the magistrate may accept
this as a term of art and presume that police searched the informant immediately before
and after the alleged drug purchase and conducted surveillance of the purchase to the extent
feasible.” Id. at 71. Thus when “controlled purchase” is used as a term of art, as it was in
the applications for the warrants, the police need not detail how they conducted the search
of the CRI, how much money was given to the CRI to purchase cocaine from appellant, or
whether they did a post-buy search of the CRI. The applications for the warrants indicate
that at the end of the controlled purchase, the CRI returned and “produced a quantity of
white rock like substance that [appellant] represented as crack cocaine in exchange for
cash” which is more than is required. Additionally, audio recording is not required. The
only requirement is that the police “conduct[] surveillance of the purchase to the extent
feasible.” Id. Because the police were not specifically required to do so, the lack of an
audio recording does not make the controlled purchase unreliable.
The cases cited by appellant are inapposite because they do not involve a “controlled
purchase” as a term of art to establish reliability for probable cause. State v. McIntosh held
that the use of evidence of drug transactions on other dates pertaining to separate charged
offenses cannot support a finding of three or more separate transactions to justify a
sentencing departure. 641 N.W.2d 3, 9 (Minn. 2002). In that case, a CRI conducted five
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controlled purchases but whether the controlled purchases were reliable was not even
mentioned or analyzed. Id. at 5.
State v. DeShay involved a paid CRI who testified that the defendant had sold him
cocaine one time. 645 N.W.2d 185, 188 (Minn. App. 2002), review granted (Minn.
Aug. 20, 2002). The appellant in DeShay argued that the only direct evidence presented
showed that he sold 0.01 grams of crack cocaine to a CRI during a controlled purchase and
that was not sufficient to prove that he conspired to sell ten or more grams of cocaine. Id.
at 190. The court concluded that circumstantial evidence and rational inferences drawn
from the controlled purchase and other testimony elicited at trial supported the jury’s
finding that a conspiracy to sell ten grams or more of cocaine within a 90-day period
existed. Id. at 191. The court in DeShay did not express any displeasure with the reliability
of the controlled purchase.
Finally, appellant cites to State v. Ascheman to support his argument that the
controlled purchase was unreliable. Ascheman involved an undercover police officer who
wore a “body wire” to record a conversation when she purchased marijuana from the
appellant. State v. Ascheman, 589 N.W.2d 486, 488 (Minn. App. 1999). The issue in the
case was whether the district court abused its discretion in instructing the jury. Id. at 489.
Ascheman was not a controlled purchase with a CRI and the court did not discuss a proper
protocol for conducting a controlled purchase. It was merely a case where an undercover
police officer wore a wire. Neither McIntosh, DeShay, nor Ascheman discuss or mention
any safeguards required to establish a reliable controlled purchase and are not controlling
here.
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Because the CRI and the controlled purchase were reliable, the district court did not
err in determining that there was a fair probability that contraband or evidence of a crime
would be found at 3620 Penn and on appellant’s person. We conclude that the district court
did not err in denying appellant’s motion to suppress the evidence found when the warrants
were executed.
Affirmed.
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