This opinion will be unpublished and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
A14-0338
State of Minnesota,
Respondent,
vs.
Gene Charles Walters, Jr.,
Appellant.
Filed February 2, 2015
Affirmed
Hooten, Judge
Cass County District Court
File No. 11-CR-13-366
Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,
Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Walker, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from his conviction of fifth-degree controlled substance possession,
appellant argues that because the supporting affidavit failed to establish that the
cooperating individual was reliable, the district court erred when it determined that
probable cause existed to support a search warrant. We affirm.
FACTS
On January 11, 2013, an issuing judge signed a search warrant authorizing a
search of the residence of appellant Gene Charles Walters, Jr. The information in the
supporting affidavit as to drug sale activity at the Walters residence came from a
“cooperating individual” and other knowledge of the affiant, Deputy Tony Cyr. The
supporting affidavit provided in pertinent part:
Your affiant has been part of a drug investigation into
the activities of the suspect, Gene Charles Walters Jr. . . .
Your affiant received information during the fall of 2012 that
Walters was selling methamphetamine from his residence
near the airport outside the City of Pine River.
On 1-3-13 your affiant met with a cooperating
individual who showed your affiant the residence . . . . That
cooperating individual told your affiant that he had been
present at the residence on more than one occasion when
Walters had sold methamphetamine from the house and
garage on the property. That cooperating individual also
supplied information about other residences in the area, which
are known to your affiant, as houses where other drug activity
is known to be occurring based on intelligence information
and prior drug activity by the occupants. Your affiant, during
the same visit, told of a burglary that occurred and described
the items taken. Officers from Crow Wing County went to
that location and did find that the information provide[d] was
correct.
Your affiant, with the assistance of a [confidential
reliable informant (CRI)], did purchase a quantity [o]f
[m]ethamphetamine from [the Walters] residence . . . within
the past 72 hours.
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Your affiant has knowledge of [a woman] residing at
the residence. Approximately 3 weeks ago [this person] was
transported to detention by your affiant for a positive test for
the use of methamphetamine. [She] is also on probation for
the possession of methamphetamine.
As recently as the preceding week [the woman] was
reported to your affiant[] to be residing back at the Walter[s]
residence. [She] met with her probation agent on 1-7-13 and
again tested positive for methamphetamine and was arrested
on that offense.
Police executed the search warrant on January 18, 2013. Walters cooperated when police
arrived by telling the officers where to find his methamphetamine supply. The officers
discovered four small baggies inside his nightstand, one of which tested positive for one-
tenth of a gram of methamphetamine.
Walters was charged with fifth-degree felony possession of a controlled substance.
Walters moved to suppress the evidence obtained during execution of the search warrant
for lack of probable cause, and his motion was denied by the district court. Walters
agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 4,1 and the district
court found him guilty of fifth-degree possession of a controlled substance. This appeal
followed.
DECISION
Walters argues that the district court erred by failing to suppress the evidence
obtained by police in connection with the search warrant because the warrant was not
1
The parties and the district court referred to this process as a Lothenbach stipulated-
facts trial. However, the supreme court has indicated that State v. Lothenbach, 296
N.W.2d 854 (Minn. 1980), has been superseded by rule 26.01, subd. 4. State v. Diede,
795 N.W.2d 836, 842 n.2 (Minn. 2011).
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supported by probable cause. Search warrants must be supported by probable cause.
U.S. Const. amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2012). Probable
cause is established “if there is a ‘fair probability that contraband or evidence of a crime
will be found in a particular place.’” State v. Fort, 768 N.W.2d 335, 342 (Minn. 2009)
(quoting State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985)). In determining whether
probable cause exists, the issuing judge examines the “totality of the circumstances,”
making a “practical, commonsense decision” based on “all the circumstances set forth in
the affidavit before him, including the veracity and basis of knowledge of persons
supplying hearsay information.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995)
(quotations omitted).
“When determining whether a search warrant is supported by probable cause, we
do not engage in a de novo review.” State v. McGrath, 706 N.W.2d 532, 539 (Minn.
App. 2005), review denied (Minn. Feb. 22, 2006). Instead, we are to “afford the district
court’s determination great deference,” and only “consider whether the issuing judge had
a substantial basis for concluding that probable cause existed.” State v. Rochefort, 631
N.W.2d 802, 804 (Minn. 2001). We resolve “doubtful or marginal cases” in favor of the
issued warrant. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990). But our
deference to issuing judges is not “unlimited.” State v. Ward, 580 N.W.2d 67, 70 (Minn.
App. 1998). Our review is limited to the affidavit supporting the warrant which was
relied upon by the issuing judge. Novak v. State, 349 N.W.2d 830, 831 (Minn. 1984).
The supporting affidavit must contain sufficient facts to allow the issuing judge to “draw
his own conclusion[] of whether probable cause exists,” and reasonable inferences made
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from the affidavit “must give rise to more than a mere suspicion.” Ward, 580 N.W.2d at
71 (quotations omitted). We are “not to review each component of the affidavit in
isolation,” but instead “view them together” in examining the “totality of the
circumstances” underlying the probable-cause determination. McCloskey, 453 N.W.2d at
703 (quotation omitted).
On appeal, the sole claim of Walters is that the affidavit did not sufficiently show
the veracity or basis of knowledge for the cooperating individual’s information. He first
argues that applying the six-factor test identified in Ward to the affidavit shows that the
cooperating individual’s veracity was not established therein. See 580 N.W.2d at 71.
When the person supplying hearsay information is confidential, but not anonymous, we
have looked at six factors in determining his or her reliability and veracity:
(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) (citing Ward, 580 N.W.2d at 71).
As noted by Walters, most of these factors do not apply here. The affidavit gives
no indication that the cooperating individual is a first-time citizen informant, voluntarily
came forward, or provided information against his penal interest. However, these factors
merely allow a magistrate to presume reliability if they are present and are not
prerequisites to a finding of reliability. Cf. McCloskey, 453 N.W.2d at 703 (“The fact
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that the informant here did not qualify as a citizen informant of presumed reliability does
not mean that the informant was an informant of doubtful reliability from the criminal
subculture.”).
What the affidavit does contain is extensive corroboration of the information
provided by the cooperating individual. The cooperating individual’s information that he
had witnessed Walters sell drugs at his residence was corroborated by several other
pieces of information in the affidavit: the police already had reports of drug activity at
that address, Deputy Cyr and a CRI purchased methamphetamine from the residence
within 72 hours of filing the warrant application, and the deputy knew that another
resident of the house had recently tested positive for methamphetamine use.
Walters argues that this corroboration is insufficient. He claims that the fact that
another resident at his house tested positive for drugs corroborates only that person’s
drug use, not the fact that Walters sold drugs out of the house or that the cooperating
individual had witnessed such. But we are “careful not to review each component of the
affidavit in isolation” of the others. State v. Holiday, 749 N.W.2d 833, 839 (Minn. App.
2008) (quotation omitted). In light of the other information presented in the affidavit, the
fact that a person who resides in the house uses methamphetamine further increases the
likelihood that drugs would be found in the Walters residence.
Walters also disputes the reliability of the methamphetamine purchase by Deputy
Cyr and a CRI, claiming that the affidavit did not establish the CRI’s reliability or the
reliability of the sale itself, which was not described as a “controlled purchase.” But the
CRI’s reliability is not at issue here. This information is not hearsay from an informant;
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Deputy Cyr attested, under oath, that he had recently purchased methamphetamine from
the Walters residence “with the assistance of a CRI.” The issue, then, is the reliability of
Deputy Cyr, not of his CRI. Walters has failed to claim, either here or at the district
court, that this statement by Deputy Cyr was false or misleading. Cf. State v. Andersen,
784 N.W.2d 320, 326–27 (Minn. 2010) (explaining the standard applied in determining
whether warrants are void due to misrepresentations or omissions by affiants). While the
affidavit could have given more detail, it establishes that Deputy Cyr recently bought
methamphetamine from the Walters residence with the aid of a CRI, corroborating the
cooperating individual’s information that drugs were being sold there.
Moreover, corroboration of other details provided by the cooperating individual
further bolsters his reliability. “Even corroboration of minor details lends credence to an
informant’s tip and is relevant to the probable-cause determination.” Holiday, 749
N.W.2d at 841. The cooperating individual showed the Walters residence to Deputy Cyr,
indicating that he knew the correct address of where Walters lived. We can also
distinguish State v. Albrecht, in which the only details of an informant’s tip corroborated
by the police were easily ascertained public information: a home address and ownership
of a truck. 465 N.W.2d 107, 109 (Minn. App. 1991). While the address of Walters was
public knowledge, the fact that he was selling drugs was not.
The cooperating individual also provided other information unrelated to Walters
that was confirmed by police and also was not public knowledge: the location of other
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nearby drug houses and details of a Crow Wing County burglary.2 “[A]n informant’s
reliability may be demonstrated where the informant has previously given police correct
information, but the affidavit must explicitly state this to be the case.” Ward, 580
N.W.2d at 71. The affidavit here explicitly states that officers found this information to
be correct, again supporting the cooperating individual’s veracity.
Due to the extensive corroboration of the fact that Walters was selling drugs from
his home as well as other details of the cooperating individual’s information, his
challenge to the veracity of the cooperating individual is without merit.
Walters also challenges the cooperating individual’s basis for knowing that
Walters was selling drugs out of his home. “Recent personal observation of
incriminating conduct has traditionally been the preferred basis for an informant’s
knowledge.” Wiley, 366 N.W.2d at 269. This is the claimed basis of the cooperating
individual’s knowledge in this case—that he was at the home when drugs were sold from
the house and garage. Walters argues that this personal observation is insufficient
because the warrant affidavit does not establish when the cooperating individual
witnessed drug sales at the Walters residence. If the cooperating individual had provided
the only information in the warrant affidavit, his failure to specify when he witnessed
drug sales may have rendered the information too stale to justify a finding of probable
2
While Walters argues that the affidavit establishes that Deputy Cyr told the cooperating
individual of this burglary, a common-sense interpretation of the affidavit is that Deputy
Cyr was informed of this burglary by the cooperating individual and proceeded to verify
that information. See Rosillo v. State, 278 N.W.2d 747, 748–49 (Minn. 1979) (noting
that we interpret search warrant affidavits in a “common-sense and realistic manner”
when conducting a probable-cause review).
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cause. See State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (“The proof must be of
facts so closely related to the time of the issue of the warrant as to justify a finding of
probable cause at that time.” (quotation omitted)). But the warrant affidavit also
contained Deputy Cyr’s statement that he had purchased methamphetamine from the
home within 72 hours of the warrant application, and also indicated that another resident
of the home had tested positive for methamphetamine a week earlier. Any doubt as to
whether the cooperating individual’s information was too stale to be relied upon in
finding probable cause was dispelled by corroborating information indicating that the
drug sales were still occurring as recently as three days prior to the warrant’s execution.
In sum, Walters has not shown that the information provided by the cooperating
individual to Deputy Cyr was unreliable. The information that Walters was selling drugs
from his residence was substantially corroborated by other information in the warrant
affidavit, including the recent purchase of methamphetamine by Deputy Cyr at the
Walters residence. In light of our deference to the issuing judge, Rochefort, 631 N.W.2d
at 804, and preference for upholding warrants, McCloskey, 453 N.W.2d at 704, the
totality of these circumstances gave the issuing judge a substantial basis to conclude that
there was a “fair probability that contraband or evidence of a crime” would be found in
the Walters residence. Fort, 768 N.W.2d at 342 (quotation omitted). Because Deputy
Cyr’s warrant affidavit provided a substantial basis for the issuing judge to find probable
cause of methamphetamine sales at the Walters residence, the district court did not err in
denying Walters’ motion to suppress.
Affirmed.
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