State v. McCloskey

OPINION

SCHUMACHER, Judge.

This appeal questions the sufficiency of the affidavit supporting the warrant which authorized the search of appellant Jeffrey A. McCloskey and his residence. The search yielded evidence which resulted in a conviction.

FACTS

On April 1, 1988, a search warrant was executed at appellant’s residence. A complaint was then issued, charging appellant with two counts of possession of a controlled substance with intent to distribute, two counts of possession of a controlled substance, and one count of possession of drug paraphernalia. After an omnibus hearing, appellant’s motion to suppress was denied. The court found appellant guilty on all five counts after a court trial on stipulated facts. Appellant now seeks reversal of his conviction on the grounds there was no probable cause to issue the search warrant.

Isanti County Sheriff William Schultz made the affidavit in support of the search warrant. In the affidavit Schultz stated that during the previous week a person came to his office and asked to speak to him. The affidavit thereafter referred to the person as a “CRI” ("confidential reliable informant”). According to the affidavit, the informant expressed concern that appellant was selling controlled substances to juveniles. The affidavit contained no further information as to the basis of the informant’s belief that appellant was selling drugs to juveniles. The informant refused to provide identification, claiming fear of retribution. To this day the identification and whereabouts of the informant are unknown.¹

The anonymous informant stated that he/she had bought marijuana from appellant and had seen at his residence, sometime in the week prior to coming to see the sheriff, a substance which the anonymous informant said appellant referred to as being cocaine. The anonymous informant gave the sheriff a description of the substance. The sheriff’s affidavit stated that the description matched the type of cocaine discovered recently in the area, namely, cocaine in raw chunk form.

At the sheriff's request, the anonymous informant returned the next day and accompanied him to view appellant’s house. Along the way, the anonymous informant told him that the house had a detached garage, and also said that appellant had a number of guns, sometimes carried a 7-inch blade in his boot and had a large iguana in his house. He also gave the sheriff appellant’s telephone number. The sheriff viewed the house and saw that it had indeed a detached garage. The sheriff checked public records and found the telephone number given by the anonymous informant was appellant’s and that appellant and his wife owned the house.

The sheriff stated in the affidavit that he had checked on police sources and learned the following about appellant:

The Isanti County Sheriffs Department contact card showed a DWI arrest in 1982, a probation violation warrant in 1983, a Ramsey County warrant in 1986 for expired plates, and a 1986 Hennepin County warrant for speeding. The traffic record showed McCloskey to be suspended several times for unpaid fines, a no insurance conviction, a DWI, and several speeds. The criminal history showed a 1975 arrest by the St. Paul Police Department for criminal damage to property, for which the disposition was unknown. The record also showed a 1977 arrest by the St. Paul Police Department for vehicle theft, which matter was not prosecuted.

The sheriff gave eonclusory reasons in the affidavit for crediting the anonymous informant: the anonymous informant gave information against his own penal interest with self-verifying detail, and the sheriff had been able to verify some elements of the information. The sheriff also surmised that the fact that the anonymous informant expressed concern about the sale of drugs to juveniles provided a valid reason for the anonymous informant to give the informa-. tion.

When the sheriffs department executed the search warrant, drug paraphernalia, about 5.5 grams of methamphetamine, and 25 grams of marijuana were found and seized. A green lizard type animal was seen at the house. No guns or cocaine were seized.

ISSUE

Should the evidence seized pursuant to the search warrant have been suppressed because of lack of probable cause in the supporting affidavit?

ANALYSIS

The United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Minn.Stat. § 626.08 (1986) provides “[a] search warrant cannot be issued but upon probable cause, supported by affidavit.”

Probable cause to search is determined by the “totality of the circumstances.” State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Under the 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.

Wiley, 366 N.W.2d at 268 (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).

In general, a magistrate’s finding of probable cause should be paid great deference by reviewing courts. Wiley, 366 N.W.2d at 268; see also Gates, 462 U.S. at 236, 103 S.Ct. at 2331. “Deference to the magistrate, however, is not boundless.” United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984).

Even if [a] warrant application [is] supported by more than a bare bones affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant [is] invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances.

State v. Gabbert, 411 N.W.2d 209, 212 (Minn.Ct.App.1987) (quoting Leon, 468 U.S. at 915, 104 S.Ct. at 3416-17).

' As noted in Hanson v. State, 344 N.W.2d 420 (Minn.Ct.App.1984), the supreme court in Gates emphasized that the basis for the informant’s knowledge, reliability and veracity are closely intertwined issues which may be considered in determining whether there is probable cause to support a search warrant. Id. at 423; see also State v. Doyle, 336 N.W.2d 247, 249-50 n. 1 (Minn.1983). Furthermore, as noted by our own supreme court, Gates held that:

Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.

Doyle, 336 N.W.2d at 250 n. 1 (quoting Gates, 462 U.S. at 239, 103 S.Ct. at 2332-33).

We conclude the affidavit in this case failed to provide sufficient information for the magistrate to determine whether probable cause existed. The affidavit referred to the anonymous informant as a “CRI,” implying to the trial court that the police knew the informant’s identity and had independent reasons to rely on the information provided. See Wiley, 366 N.W.2d at 269. In fact, there is no showing in this case that the anonymous informant had a track record with the police of giving accurate information in the past. See State v. Siegfried, 274 N.W.2d 113, 115 (Minn.1978).

The informant’s credibility cannot be presumed under the “first time citizen informer” rule. See id. The rule does not extend to an anonymous informant involved in the criminal activity on which he reports. Id. “One who voluntarily comes forward and identifies herself is more likely to be telling the truth * * *.” State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333, 335 (1973). The informant in this case refused to identify himself or herself.

The informant, in this case, admitted purchasing marijuana.

The credibility of such an informant cannot be assumed and it is not enough that the affidavit states in a conclusory fashion that he is credible or reliable. Rather, the affidavit must provide the magistrate with adequate information from which he can personally assess the informant’s credibility, emphasis added

Siegfried, 274 N.W.2d at 114.

In Siegfried, . where it was unclear whether the informer was a first time citizen informer, the court found it need not reach the issue because “other information in the affidavit sufficiently supported the * * * determination [that] the primary informant was telling the truth.” Id.

In this case, the information from the anonymous informant was not sufficiently corroborated to insure the informant told the truth when giving the tip. See id. When, as here, the tip is from an anonymous informer who admits to being part of the criminal milieu, the corroborating details must go beyond information available to the general public, such as the appellant’s telephone number and the appearance and location of his house. See United States v. Schmidt, 662 F.2d 498, 503 (8th Cir.1981).

The “corroboration” about the cocaine the informant said was observed at appellant’s house is also insufficient. The informant’s description of cocaine which “matched” drugs found in the area was not sufficiently distinctive. Notably, an individual who had recently purchased drugs would be as likely to know what kind of cocaine was in the area through his own experience as through observation at the appellant’s house.

The fact that we find appellant had been convicted for traffic violations did not constitute corroboration for the anonymous information. While prior convictions may be corroborative, they must be relevant to the criminal activity alleged. See State v. Cavegn, 356 N.W.2d 671, 673 n. 1 (Minn.1984).

In short, there was insufficient corroboration of the anonymous tip to support a finding of probable cause.

In the only reported Minnesota decision which held that information contained in a tip was sufficiently corroborated, despite the criminal activity on the part of the person who was the subject of the tip, the informant was not anonymous and the informant had a track record with the police. Wiley, 366 N.W.2d at 268. That informant was referred to as a “CRI.” Id. at 269.

In Gates, the majority noted seemingly innocent activity might become suspicious in light of an initial anonymous tip. Gates, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13. However, the seemingly innocent activity in Gates was travel to and from Florida in a manner which corroborated the anonymous tip that the defendants were bringing drugs back to Illinois for sale. Id. at 213, 103 S.Ct. at 2317. Here, the “corroboration,” even if looked at in conjunction with the tip, provided no verification of criminal activity.

The sheriffs conclusion in the affidavit that the anonymous informant had made a statement against penal interest is in error. Clearly, for a statement to be made against penal interest, the identity of the person making the statement must be known.

Whether the good faith exception doctrine should apply in this case is moot since this doctrine has not been adopted in Minnesota. See Leon, 468 U.S. 897, 104 S.Ct. 3405; Wiley, 366 N.W.2d at 269 n. 2.

We remand this case to the trial court and order that the evidence seized pursuant to the search warrant be suppressed.

DECISION

Reversed and remanded.

1 . County Attorney Scott Hersey admitted at oral argument to this court that neither he nor the sheriff would be able to locate the informant.