This opinion will be unpublished and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
A15-1013
State of Minnesota,
Respondent,
vs.
Dana Jerome Duncombe,
Appellant.
Filed April 18, 2016
Affirmed
Jesson, Judge
Ramsey County District Court
File No. 62-CR-13-9964
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Elizabeth Lamin, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Bradford Colbert, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and
Klaphake, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
JESSON, Judge
After police obtained a warrant and searched his home, appellant was convicted of
possession of a firearm by an ineligible person. Appellant challenges his conviction
arguing that the warrant and supporting affidavit did not contain sufficient facts to establish
probable cause. Because we conclude that the issuing judge had a substantial basis for the
probable cause determination, we affirm. Appellant also argues that the circumstantial
evidence is insufficient to support his conviction. We do not reach this issue. By
submitting the matter to the district court pursuant to Minn. R. Crim. P. 26.01, subd. 4,
appellant waived the right to challenge the sufficiency of the evidence on appeal.
FACTS
In December of 2013, police executed a search warrant at appellant Dana
Duncombe’s home. The home was a duplex with separate units in the upper and lower
levels. Police only entered the lower-level unit where Duncombe lived with his girlfriend.
Duncombe’s girlfriend was the only person in the home when the warrant was executed.
In one of the bedrooms in the lower unit, police found a black backpack containing
a firearm, a loaded magazine, a scale and clear baggies holding a green leafy substance.
Police also found a photograph of Duncombe and a letter addressed to Duncombe in the
room. Duncombe’s girlfriend told police that she shared the bedroom exclusively with
Duncombe. She also said that she was not aware of any guns or drugs in the bedroom.
Police originally sought the warrant based on information provided by a confidential
reliable informant (CRI) and a controlled buy. According to the supporting affidavit, the
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CRI had assisted police in three separate cases in the past year-and-a-half. Each case
resulted in “seizures of narcotics, arrests, and/or currency forfeitures.”
The CRI told police that Duncombe sold cocaine, marijuana, pills, and heroin out
of his home. The CRI had purchased narcotics from Duncombe in the past. The CRI
provided the approximate location of Duncombe’s home and told police that it was a multi-
family home and Duncombe lived in the basement. Police showed the CRI a driver’s
license photograph of Duncombe, and the CRI confirmed Duncombe’s identity.
Less than 72 hours before applying for the warrant, police conducted a controlled
buy at Duncombe’s home using the CRI. Prior to the controlled buy, police searched the
CRI and the CRI’s vehicle for money and controlled substances. Police provided the CRI
with U.S. currency to purchase a specific amount of a controlled substance. Police kept
the CRI under constant surveillance as the CRI entered and exited the home. After the
controlled buy, police followed the CRI to a pre-arranged location, and the CRI turned over
a controlled substance. The CRI told police that the CRI had purchased the controlled
substance from Duncombe inside the residence.
Duncombe, who has prior first-degree aggravated robbery and second-degree
controlled-substance convictions, was charged with possession of a firearm by an ineligible
person. He moved to suppress the firearm on the grounds that the search warrant and
supporting affidavit did not contain sufficient facts to establish probable cause. The district
court denied the challenge.
Later, Duncombe challenged the warrant a second time. A different district court
judge considered the matter based on the warrant, supporting affidavit, and the testimony
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of the officer who submitted the warrant affidavit. The district court denied the challenge.
Duncombe then stipulated to a body of evidence provided by the state, preserved his right
to appeal pre-trial issues relating to the warrant, and submitted the matter to the district
court pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court found Duncombe
guilty. This appeal follows.
DECISION
I.
Duncombe first argues that the firearm must be suppressed because the search
warrant and supporting affidavit lacked sufficient facts to establish probable cause. He
claims that that the information provided regarding the CRI’s reliability was “so generic it
is worthless.” He also claims that the tip provided by the CRI contains only conclusory
statements that are insufficient to support probable cause. Lastly, he argues that the
controlled buy cannot establish probable cause because the warrant and supporting
affidavit do not contain information regarding the type of controlled substance purchased
from Duncombe or how police identified the substance. We disagree.
The United States and Minnesota Constitutions provide that no warrant shall issue
without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Generally, a search is lawful only if executed pursuant to a valid search warrant issued by
a neutral and detached magistrate after a finding of probable cause. See Minn. Stat.
§ 626.08 (2012); State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014).
When reviewing probable cause to issue a warrant, we give “the district court’s
determination great deference.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).
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We limit our review to considering whether the issuing judge had a substantial basis for
determining that probable cause existed to support the warrant. Yarbrough, 841 N.W.2d
at 622. The substantial-basis determination is based on an examination of the totality of
the circumstances. State v. Holiday, 749 N.W.2d 833, 839 (Minn. App. 2008).
The task of the issuing [judge] is simply to make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit before [the judge], 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. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213,
238, 103 S. Ct. 2317, 2332 (1983)).
The crux of the application for the search warrant included information on the recent
controlled buy, a description of Duncombe by the CRI, and the allegation that the CRI had
purchased narcotics from Duncombe in the past, as well as the following two sentences:
“The CRI has assisted the [drug task force] with three separate cases in the past year and a
half. The past three cases the CRI provided [sic] have resulted in the seizures of narcotics,
arrests, and/or currency forfeitures.”
Duncombe first argues that the application for the warrant does not adequately
establish the CRI’s reliability. See State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999)
(“Having a proven track record is one of the primary indicia of an informant’s veracity.”).
“[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.”
State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). Here, the warrant affidavit states
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that the CRI provided police with information leading to “seizures of narcotics, arrests,
and/or currency forfeiture” on three occasions within the last year-and-a-half. Contrary to
Duncombe’s contention, further elaboration concerning the specifics of the CRI’s record
of reliability is not required. Munson, 594 N.W.2d at 136. As the Minnesota Supreme
Court held in Wiley, a statement that the informant “has been used over several years
successfully” is sufficient to establish reliability. Wiley, 366 N.W.2d at 269 & n.1
Reliability was reinforced, as described in the affidavit, by police confirmation of
Duncombe’s identity by obtaining and showing the CRI a driver’s license photograph of
Duncombe. The CRI confirmed that the picture was of Duncombe. Police further
corroborated the CRI’s tip by conducting a controlled-buy at the home where the CRI said
Duncombe resided. Corroboration of information, even minor details, provided by the CRI
adds further credence to the informant’s tip. State v. McCloskey, 453 N.W.2d 700, 704
(Minn. 1990). There was enough information in the affidavit for the judge to make an
independent determination regarding the reliability of the CRI.
Duncombe next points to the absence of specifics in the application regarding the
controlled buy. He notes that the warrant and supporting affidavit lack information
regarding the type of controlled substance purchased or how police confirmed that a
controlled substance had indeed been purchased. But Duncombe fails to cite any authority
for the proposition that such a controlled buy cannot provide support for a probable-cause
finding. In Holiday, this court concluded that a controlled buy may corroborate an
informant’s tip even when the controlled buy yields no controlled substance. 749 N.W.2d
at 842-843. In that case, a CRI went to the door of Holiday’s home and asked Holiday for
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drugs. Id. at 837-38. Holiday told the CRI that he did not know the CRI and would not
sell the CRI anything. Id. at 838. This court concluded that because Holiday’s comment
indicated that Holiday would have sold the CRI narcotics if he had known the CRI, the
statement corroborated the report of a different informant, who told police Holiday was
selling drugs out of the home. Id. at 837, 843.
In this case, there are more specifics regarding the controlled buy than in Holiday.
Police searched the CRI and the CRI’s vehicle for money, drugs, and other contraband.
Police then provided the CRI with a specific amount of U.S. currency which they had
photographed for identification purposes. Police observed as the CRI entered and later
exited Duncombe’s home. The CRI, who had previously identified Duncombe from a
driver’s license photograph, returned with a controlled substance and told police that he
purchased the substance from Duncombe. Although the affidavit does not state how the
officers knew it was a controlled substance or what type of controlled substance it was, the
officer who applied for the search warrant is a trained narcotics officer and labeled the
substance as a controlled substance in his affidavit.
The reliable informant’s tip was based on first-hand information that Duncombe
was selling drugs out of his home and was corroborated by a controlled buy at the home.
Even if we considered this a close case, “the resolution of doubtful or marginal cases should
be largely determined by the preference to be accorded warrants.” Wiley, 366 N.W.2d at
268 (quotation omitted). The reason for this deference is straightforward: we want to
encourage police officers to obtain warrants, not deter them from doing so. State v. Nolting,
312 Minn. 449, 456, 254 N.W.2d 340, 345 n.7 (1977). We are further guided by the
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supreme court’s direction to view the affidavit as a whole, rather than examining each
component in isolation. State v. Jenkins, 782 N.W.2d 211, 223 (Minn. 2010). In light of
these principles, we conclude that the warrant and supporting affidavit provided the issuing
judge with a substantial basis to find probable cause.
II.
Duncombe next argues that the evidence is insufficient to support his conviction.
The state maintains that Duncombe is precluded from challenging the sufficiency of the
evidence because he proceeded pursuant to Minn. R. Crim. P. 26.01, subd. 4. We agree.
Minn. R. Crim. P. 26.01, subd. 4, allows a defendant to preserve a dispositive
pretrial issue for appeal by, among other things, “stipulat[ing] to the prosecution’s evidence
in a trial to the court” and “acknowledg[ing] that appellate review will be of the pretrial
issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.”
Minn. R. Crim. P. 26.01, subd. 4(e), (f). An appellant may not challenge sufficiency of the
evidence on appeal if he proceeded in the district court under rule 26.01, subd. 4. State v.
Busse, 644 N.W.2d 79, 88 (Minn. 2002).
In his reply brief and at oral argument, Duncombe claimed that he did not intend to
waive his right to appellate review of his guilt, but rather meant to submit to either a “Trial
Without a Jury” under rule 26.01, subd. 2, or a “Trial on Stipulated Facts” pursuant to rule
26.01, subd. 3. He acknowledges that aspects of what occurred in district court are
consistent with Minn. R. Crim. P. 26.01, subd. 4, and that the district court labeled the
matter as a rule 26.01, subd. 4, proceeding in its findings of fact, but argues that because
he “did not stipulate to the prosecution’s case, he is entitled to appeal the determination of
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guilt.” “The interpretation of the rules of criminal procedure is a question of law that we
review de novo.”1 Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013).
The transcript of the proceedings shows that the parties conducted a valid rule 26.01,
subd. 4, proceeding. The parties agreed that the pretrial issues relating to Duncombe’s
warrant challenge were dispositive and that a trial would be unnecessary if Duncombe were
to prevail on these issues on appeal. Minn. R. Crim. P. 26.01, subd. 4(c). Duncombe
maintained his not guilty plea. Id., subd. 4(b). He waived his right to a jury trial, right to
testify, right to question prosecution witnesses, and right to call his own witnesses. Id.,
subd. 4(d). Duncombe stipulated to the prosecution’s evidence, and he acknowledged that
the court would consider that evidence and could enter a finding of guilt based on that
evidence. Id., subd. 4(e). Duncombe also clearly acknowledged that appellate review
would only be of the pretrial issue and not of his guilt or any other issues that could arise
at a contested trial. Id., subd. 4(f).
1
The supreme court recently held “that plain error analysis applies to unobjected-to errors
committed under Rule 26.01, subdivision 4.” State v. Myhre, __ N.W.2d __, __, 2016 WL
626048, *6 (Minn. Feb. 17, 2016). Myhre argued that because of errors in his rule 26.01,
subd. 4, proceeding, his conviction should be reversed. Id. It is unclear whether Myhre
applies to the instant case. Duncombe does not argue that there were errors in his rule
26.01, subd. 4, proceeding; he instead argues that the parties did not proceed under rule
26.01, subd. 4. The district court, however, did categorize the matter under rule 26.01,
subd. 4, in its findings of fact, and Duncombe could have filed an objection to the district
court’s findings or made a motion to reconsider. He did not. Nevertheless, because the
parties have not briefed this issue and because Duncombe’s claim fails under either the
plain error standard or the more favorable de novo standard, we need not determine the
appropriate standard of review. See State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013)
(“We need not resolve the parties’ dispute regarding the standard of review because, even
under the more favorable standard proposed by Silvernail, the record contains sufficient
evidence to support the jury’s verdict.”).
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Duncombe claims that because his attorney argued that he was not guilty and the
district court made a finding of guilt and findings of fact, the district court conducted a trial
without a jury or a trial on stipulated facts. But rule 26.01, subd. 4, requires the defendant
to “maintain the plea of not guilty” and provides that if the district court finds the defendant
guilty, “the [district] court must also make findings of fact on the record or in writing as to
each element of the offense(s).” Id., subd. 4(b) (h). Duncombe also argues that he did not
stipulate to the prosecution’s case. Rule 26.01, subd. 4, does not require the defendant to
“stipulate to the prosecution’s case.” Instead, it requires the defendant to “stipulate to the
prosecution’s evidence in a trial to the court.” Id., subd. 4(e). This is exactly what
happened in the district court. The prosecution submitted the case to the district court based
on a body of evidence stipulated to by the defendant. The district court made a finding of
guilt and findings of fact based on that evidence.
Finally, Duncombe argues that a statement by his defense attorney at sentencing
that the parties did not do a “Lothenbach”2 but instead conducted “a court trial through
police reports” supports his claim. This statement was made nearly three months after the
proceeding and has no bearing on what actually occurred. The district court’s order clearly
designates the matter a rule 26.01, subd. 4, proceeding, and Duncombe did not object to
that designation. Our review of the transcript satisfies us that the parties intended to
conduct such a proceeding and fully complied with the requirements of the rule. Because
2
The procedure described in rule 26.01, subd. 4, superseded the procedure originally
outlined in State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980). State v. Diede, 795
N.W.2d 836, 842 n.2 (Minn. 2011).
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we conclude that Duncombe was tried pursuant to Minn. R. Crim. P. 26.01, subd. 4, he is
not permitted to challenge his guilt on appeal.
Affirmed.
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