This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0419
State of Minnesota, Respondent,
vs.
Charles Edward Erdmann, Appellant.
Filed February 2, 2015 Affirmed Halbrooks, Judge
Dakota County District Court File No. 19HA-CR-13-2133
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Joel O’Malley, Special Assistant Public Defender, Dorsey & Whitney, LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Following his conviction of first-degree controlled-substance crime, appellant
argues that the district court erred by denying his suppression motion because (1) there was not a substantial basis for ruling that the search warrant was supported by probable
cause and (2) the warrant was stale when the search was executed. We affirm.
FACTS
In March 2013, the Dakota County Drug Task Force received information that
appellant Charles Edward Erdmann was trafficking methamphetamine from a specified
residential address in Lakeville. In May, Lakeville police officers identified the residents
of the address as L.D. and her two minor sons and conducted surveillance, through which
they observed a variety of vehicles associated with the residence. Officers learned that
Erdmann had multiple recent arrests in Minnesota and Wisconsin for possession of
controlled substances and paraphernalia, while L.D. had no criminal history. In June
2013, officers conducted a garbage pull at the residence and found three plastic baggies
sealed together in a larger plastic baggie. One of the baggies contained a white powdery
residue that tested positive for amphetamines. The garbage also contained a “prescription
document” for one of the minor children, but the search-warrant application provided no
further detail such as the medication prescribed or the date of the prescription.
On Sunday, June 30, 2013, an investigator applied for a warrant to search the
residence based on an affidavit that recounted these events. A search warrant was issued
that day. On Tuesday, July 9, 2013, the drug task force executed the search warrant,
seizing 90 grams of methamphetamine and 85 pills identified as scheduled controlled
substances. The state charged Erdmann with one count of first-degree controlled-
substance crime (aid and abet), in violation of Minn. Stat. § 152.021, subd. 2(a)(1)
(2012). The district court denied Erdmann’s motion to suppress evidence seized in the
2 search. Erdmann proceeded to a bench trial on stipulated facts under Minn. R. Crim.
P. 26.01, subd. 3, and the district court found Erdmann guilty. Erdmann now appeals.
DECISION
I.
Erdmann argues that there was not a substantial basis for a finding of probable
cause and that therefore the district court erred in denying his suppression motion. We
disagree. In addition to the amphetamine residue found in the garbage, the search-
warrant application points to Erdmann’s arrest record for similar crimes, information
received from an unidentified source that Erdmann was trafficking methamphetamine
from the house, and surveillance evidence.
Whether probable cause exists to issue a search warrant is determined under a
“totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332 (1983). “In reviewing the sufficiency of an affidavit under the totality of the
circumstances test, [issuing judges] must be careful not to review each component of the
affidavit in isolation.” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). “[A]
collection of pieces of information that would not be substantial alone can combine to
create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11 (Minn. 2004). An
issuing judge “is entitled to draw common-sense and reasonable inferences from the facts
and circumstances given.” State v. Holiday, 749 N.W.2d 833, 843 (Minn. App. 2008)
(quotation omitted). The issuing judge is “to make a practical, commonsense decision
whether . . . there is a fair probability that contraband or evidence of a crime will be
3 found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995)
(quotation omitted).
When a warrant is issued, “our review is limited to ensuring that the issuing judge
had a substantial basis for concluding that probable cause existed.” State v. Harris, 589
N.W.2d 782, 788 (Minn. 1999) (quotation omitted). We give “great deference” to the
issuing judge’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804
(Minn. 2001). “To avoid discouraging police from seeking review by a neutral and
detached magistrate, doubtful or marginal cases are resolved in favor of upholding the
warrant.” State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004).
Contraband seized from garbage left for collection “can provide an independent
and substantial basis for a probable-cause determination.” State v. McGrath, 706 N.W.2d
532, 543 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). We concluded in
McGrath that marijuana residue found in a garbage pull was sufficient to establish
probable cause to search the residence because “the test is not whether the residual
amounts of marijuana are criminal,” but “whether those amounts support a reasonable
expectation that more marijuana or other evidence of criminal activity will be found on
the premises.” Id. at 544. We have also concluded that a spoon with burn marks and a
plastic bag containing cocaine residue found in the garbage were sufficient to establish
probable cause for a search warrant for the house. State v. Papadakis, 643 N.W.2d 349,
356 (Minn. App. 2002); see also State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984)
(noting that marijuana residue in garbage supported a search warrant for the house).
4 Erdmann downplays the drug evidence found in the garbage pull, suggesting that
the white powdery residue could be connected with the “prescription document.” But the
question is not whether the residual amounts of amphetamine are necessarily criminal.
Rather, the question is whether amphetamine residue in a baggie found in the garbage
supports a conclusion that “there is a fair probability that contraband or evidence of a
crime will be found” in the house. See Zanter, 535 N.W.2d at 633 (quotation omitted).
Erdmann also challenges the lack of specificity on the timing of the garbage pull.
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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 A14-0419
State of Minnesota, Respondent,
vs.
Charles Edward Erdmann, Appellant.
Filed February 2, 2015 Affirmed Halbrooks, Judge
Dakota County District Court File No. 19HA-CR-13-2133
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Joel O’Malley, Special Assistant Public Defender, Dorsey & Whitney, LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Following his conviction of first-degree controlled-substance crime, appellant
argues that the district court erred by denying his suppression motion because (1) there was not a substantial basis for ruling that the search warrant was supported by probable
cause and (2) the warrant was stale when the search was executed. We affirm.
FACTS
In March 2013, the Dakota County Drug Task Force received information that
appellant Charles Edward Erdmann was trafficking methamphetamine from a specified
residential address in Lakeville. In May, Lakeville police officers identified the residents
of the address as L.D. and her two minor sons and conducted surveillance, through which
they observed a variety of vehicles associated with the residence. Officers learned that
Erdmann had multiple recent arrests in Minnesota and Wisconsin for possession of
controlled substances and paraphernalia, while L.D. had no criminal history. In June
2013, officers conducted a garbage pull at the residence and found three plastic baggies
sealed together in a larger plastic baggie. One of the baggies contained a white powdery
residue that tested positive for amphetamines. The garbage also contained a “prescription
document” for one of the minor children, but the search-warrant application provided no
further detail such as the medication prescribed or the date of the prescription.
On Sunday, June 30, 2013, an investigator applied for a warrant to search the
residence based on an affidavit that recounted these events. A search warrant was issued
that day. On Tuesday, July 9, 2013, the drug task force executed the search warrant,
seizing 90 grams of methamphetamine and 85 pills identified as scheduled controlled
substances. The state charged Erdmann with one count of first-degree controlled-
substance crime (aid and abet), in violation of Minn. Stat. § 152.021, subd. 2(a)(1)
(2012). The district court denied Erdmann’s motion to suppress evidence seized in the
2 search. Erdmann proceeded to a bench trial on stipulated facts under Minn. R. Crim.
P. 26.01, subd. 3, and the district court found Erdmann guilty. Erdmann now appeals.
DECISION
I.
Erdmann argues that there was not a substantial basis for a finding of probable
cause and that therefore the district court erred in denying his suppression motion. We
disagree. In addition to the amphetamine residue found in the garbage, the search-
warrant application points to Erdmann’s arrest record for similar crimes, information
received from an unidentified source that Erdmann was trafficking methamphetamine
from the house, and surveillance evidence.
Whether probable cause exists to issue a search warrant is determined under a
“totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332 (1983). “In reviewing the sufficiency of an affidavit under the totality of the
circumstances test, [issuing judges] must be careful not to review each component of the
affidavit in isolation.” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). “[A]
collection of pieces of information that would not be substantial alone can combine to
create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11 (Minn. 2004). An
issuing judge “is entitled to draw common-sense and reasonable inferences from the facts
and circumstances given.” State v. Holiday, 749 N.W.2d 833, 843 (Minn. App. 2008)
(quotation omitted). The issuing judge is “to make a practical, commonsense decision
whether . . . there is a fair probability that contraband or evidence of a crime will be
3 found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995)
(quotation omitted).
When a warrant is issued, “our review is limited to ensuring that the issuing judge
had a substantial basis for concluding that probable cause existed.” State v. Harris, 589
N.W.2d 782, 788 (Minn. 1999) (quotation omitted). We give “great deference” to the
issuing judge’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804
(Minn. 2001). “To avoid discouraging police from seeking review by a neutral and
detached magistrate, doubtful or marginal cases are resolved in favor of upholding the
warrant.” State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004).
Contraband seized from garbage left for collection “can provide an independent
and substantial basis for a probable-cause determination.” State v. McGrath, 706 N.W.2d
532, 543 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). We concluded in
McGrath that marijuana residue found in a garbage pull was sufficient to establish
probable cause to search the residence because “the test is not whether the residual
amounts of marijuana are criminal,” but “whether those amounts support a reasonable
expectation that more marijuana or other evidence of criminal activity will be found on
the premises.” Id. at 544. We have also concluded that a spoon with burn marks and a
plastic bag containing cocaine residue found in the garbage were sufficient to establish
probable cause for a search warrant for the house. State v. Papadakis, 643 N.W.2d 349,
356 (Minn. App. 2002); see also State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984)
(noting that marijuana residue in garbage supported a search warrant for the house).
4 Erdmann downplays the drug evidence found in the garbage pull, suggesting that
the white powdery residue could be connected with the “prescription document.” But the
question is not whether the residual amounts of amphetamine are necessarily criminal.
Rather, the question is whether amphetamine residue in a baggie found in the garbage
supports a conclusion that “there is a fair probability that contraband or evidence of a
crime will be found” in the house. See Zanter, 535 N.W.2d at 633 (quotation omitted).
Erdmann also challenges the lack of specificity on the timing of the garbage pull.
But it is settled law that omission of time information, while discouraged, is not fatal
under the totality-of-the-circumstances test. Harris, 589 N.W.2d at 789. Here, the
affidavit provides only that the garbage pull occurred in June 2013. But because the
affidavit is laid out generally in chronological order, with the garbage pull near the end,
the issuing judge could have reasonably concluded that the garbage pull occurred shortly
before the June 30 search-warrant application. And even if the garbage pull occurred
earlier in June, the ongoing nature of the crime under investigation could support a
conclusion that the drug evidence was not stale. See State v. Velishek, 410 N.W.2d 893,
896-97 (Minn. App. 1987) (concluding that evidence of a marijuana grow four to six
weeks earlier “was not so stale that the magistrate could not conclude that the marijuana
would be present”).
The affidavit also includes Erdmann’s history of related arrests.
A person’s criminal record is among the circumstances a judge may consider when determining whether probable cause exists for a search warrant. Courts also occasionally consider arrests not resulting in conviction, as when the arrest
5 involves a crime of the same general nature as the one which the warrant is seeking to uncover.
State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005) (citation and quotation omitted).
Here, Erdmann’s previous arrests were of the same general nature as the crime under
investigation, and some were recent enough that judicial resolution was still pending.
The issuing judge could reasonably give these arrests some weight in evaluating the
totality of the circumstances.
The question before us is not whether probable cause existed that Erdmann was
trafficking methamphetamine from the house, but whether the issuing judge properly
concluded under the totality of the circumstances that there was a fair probability that
contraband or evidence of a crime would be found there. In light of the great deference
we give to the issuing judge and the preference for warrants, we conclude that under the
totality of the circumstances, the search-warrant application here provides a substantial
basis to conclude that probable cause existed.
II.
Erdmann argues the district court erred in not suppressing the evidence found
during the search because the information supporting probable cause for the search
warrant was stale by the time the warrant was executed. A delay in executing a search
warrant raises statutory and constitutional issues. See State v. Yaritz, 287 N.W.2d 13, 15-
16 (Minn. 1979) (reviewing the delay for statutory and constitutional violations).
Minnesota law provides that, absent circumstances not present here, “a search warrant
must be executed and returned to the court which issued it within ten days after its date.”
6 Minn. Stat. § 626.15(a) (2012). Here, the search warrant was issued on June 30 and
executed on July 9 and therefore complies with the statutory deadline.
“‘Whether a delay in executing a search warrant is unconstitutional depends on
whether the probable cause recited in the affidavit still exists at the time of execution of
the warrant—that is, whether it is still likely that the items sought will be found in the
place to be searched.’” State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005) (quoting
Yaritz, 287 N.W.2d at 16), review denied (Minn. Mar. 29, 2005). Minnesota courts have
declined to set arbitrary time limits in determining whether the probable cause underlying
a search warrant has grown stale. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App.
1984), review denied (Minn. Jan. 14, 1985). “Instead, the question must be determined
by the circumstances of each case.” Id. The “approach should be one of flexibility and
common sense.” Id. “Relevant circumstances include the character of the crime, the
character of the criminal, the character of the thing to be seized, and the character of the
place to be searched.” King, 690 N.W.2d at 401. Here, the investigation centered on
methamphetamine trafficking, an activity of an ongoing, protracted nature. Particularly
in light of Erdmann’s recent arrest record, we conclude that the search warrant was not
unconstitutionally stale when it was issued on June 30 and executed on July 9.
Affirmed.