State of Minnesota v. Ejay Freeman

• Court: Court of Appeals of Minnesota
• Decided: February 23, 2015
• Docket: A14-1759
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1759

State of Minnesota, Appellant,

vs.

Ejay Freeman, Respondent.

Filed February 23, 2015 Reversed and remanded Chutich, Judge Hennepin County District Court File No. 27-CR-14-12355

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for appellant)

Mary F. Moriarty, Hennepin County Public Defender, Kellie M. Charles, Assistant Public Defender, Paul J. Maravigli, Assistant Public Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Toussaint, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION

CHUTICH, Judge

In this pretrial appeal, the State of Minnesota challenges the district court’s order

suppressing the evidence found in respondent’s mother’s home after the execution of a

search warrant. Because probable cause existed to believe that the home contained

firearms and narcotics when the search warrant was issued, we reverse the district court’s

suppression order and remand for further proceedings.

FACTS

The district court issued a warrant authorizing the search of a home on Knox

Avenue North, in Minneapolis, for narcotics and firearms. The home belonged to

respondent Ejay Freeman’s mother. An affidavit supporting the warrant application

alleged probable cause based, in part, on information given to Minneapolis Police Officer

George Peltz by a confidential reliable informant about Freeman conducting illegal

narcotics sales. The informant directly observed Freeman on numerous occasions at the

home with firearms that Freeman displayed while selling narcotics. Within 72 hours

before the affidavit was signed, the confidential reliable informant saw a large amount of

marijuana and two pistols in the basement of the home, and witnessed Freeman selling

marijuana to numerous customers who arrived at the front door of the home. The

informant identified Freeman through a photograph shown to him by Officer Peltz.

Officer Peltz then conducted surveillance of the home and saw Freeman meeting with

visitors who arrived at the home and stayed for short periods of time, consistent with

narcotics dealing.

2 When police executed the search warrant, they found Freeman, another male, and

three young children in a room with a loaded revolver on a table. Police also found over

400 grams of marijuana, a pistol in Freeman’s dresser drawer, and approximately $7,900.

Freeman admitted that the marijuana was his, claimed that a friend had left the revolver

on the table, and said that he was keeping the pistol for his sister.

The state charged Freeman with one count of fifth-degree possession of marijuana,

one count of possession of a pistol or assault weapon by a person convicted or

adjudicated delinquent of a crime of violence, and one count of endangerment of a child

by firearm access. Freeman moved to suppress the evidence seized during the search.

The district court granted the motion, concluding no probable cause existed to issue a

search warrant because the affidavit did not establish the veracity or reliability of the

informant. The state appeals the district court’s pretrial ruling.

DECISION

“When reviewing pretrial orders on motions to suppress evidence, we may

independently review the facts and determine, as a matter of law, whether the district

court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590

N.W.2d 90, 98 (Minn. 1999). When appealing a pretrial suppression order, the state must

“clearly and unequivocally show both that the [district court’s] order will have a critical

impact on the state’s ability to prosecute the defendant successfully and that the order

constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted).

3 Critical-Impact

The critical-impact standard is met when the likelihood of a successful prosecution

is significantly decreased by the unavailability of the suppressed evidence. State v.

McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), review denied (Minn. Feb. 22,

2006). Because the criminal charges are based on evidence seized during the execution

of the search warrant, the state will be unable to prosecute Freeman without that

evidence. We thus conclude that the suppression order has a critical impact on the state’s

ability to prosecute its case against Freeman.

Suppression of the Evidence

The United States and Minnesota Constitutions protect citizens against

unreasonable searches and seizures and provide that no warrant shall issue without a

showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Before

searching a residence, unless an exception applies, law enforcement must obtain a valid

warrant issued by a neutral and detached magistrate after a finding of probable cause.

See Minn. Stat. § 626.08 (2014); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).

This court gives great deference to the issuing judge’s finding of probable cause,

and our review is limited “to ensuring that the issuing judge had a substantial basis for

concluding that probable cause existed.” McGrath, 706 N.W.2d at 539 (citing State v.

Rochefort, 631 N.W.2d 802, 804 (Minn. 2001)). A substantial basis in this context means

that, given the totality of the circumstances, a “fair probability” exists “that contraband or

evidence of a crime will be found in a particular place.” State v. Zanter, 535 N.W.2d

624, 633 (Minn. 1995) (quotation omitted).

4 Where probable cause is based on an informant’s tip, we consider the totality-of-

the-circumstances:

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. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332 (1983)). In assessing the sufficiency of probable cause

in an affidavit, this court “must be careful not to review each component of the affidavit

in isolation.” State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).

The state argues that the district court erred by failing to credit the informant’s

basis of knowledge. We agree. “Recent personal observation of incriminating conduct

has traditionally been the preferred basis for an informant’s knowledge.” Wiley, 366

N.W.2d at 269. “[E]ven if [the issuing judge] entertain[s] some doubt as to an

informant’s motives, his explicit and detailed description of alleged wrongdoing, along

with a statement that the event was observed firsthand, entitles his tip to greater weight

than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S. Ct. at 2330; see also

State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) (providing that the assessment of

an informant’s basis of knowledge “involves consideration of the quantity and quality of

detail in the [informant’s] report”), review denied (Minn. July 25, 2000).

In this case, the supporting affidavit states that within the 72 hours before the

warrant was issued, a confidential reliable informant personally “observed a large amount

5 of marijuana and two pistols in the basement of the residence,” and also witnessed

Freeman making sales to numerous customers who came to the home to purchase

marijuana. The informant also personally observed Freeman on numerous occasions with

many firearms, including two 40 caliber semi-automatic pistols and two other small semi-

automatic pistols at the residence, and witnessed Freeman displaying the firearms while

selling narcotics. When shown a picture of Freeman, the informant identified him as the

person selling drugs and possessing the firearms. The informant’s knowledge was based

on recent, first-hand information, and the informant relayed specific information to

Officer Peltz concerning the narcotics transactions and possession of weapons, lending

credibility to the tip.

We also agree with the state’s argument that the district court did not sufficiently

credit the informant’s veracity. The supporting “affidavit must provide the magistrate

with adequate information from which [the magistrate] can personally assess the

informant’s credibility.” State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978).

Credibility can be established in a number of ways, including by a showing that the

informant has a “track record” of providing accurate information and by showing that the

details of the informant’s tip “have been sufficiently corroborated so that it is clear the

informant is telling the truth on this occasion.” Id. at 114-15.

Here, the supporting affidavit states that the confidential reliable informant had

previously provided “information about narcotics dealers in the past that has proven to be

true and correct . . . [that] led to the recovery of narcotics, weapons and monies as well as

arrests and convictions of suspects.” “[A] simple statement that the informant has been

6 reliable in the past” in an affidavit is sufficient to establish an informant’s proven track

record. State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004). Providing specific

details of the informant’s past veracity is not necessary. State v. Munson, 594 N.W.2d

128, 136 (Minn. 1999).

In determining that the search warrant lacked probable cause, the district court

relied, in part, on State v. Cook to state that recitation of the informant’s reliability by his

proven track record did not, by itself, establish probable cause. Cook is factually

distinguishable, however, and does not mandate suppression under these circumstances.

In Cook, a confidential reliable informant’s tip resulted in the warrantless arrest of

a person suspected of dealing crack cocaine. 610 N.W.2d at 666. Because a warrant was

not sought, there was no need to defer to the probable cause determination of a

magistrate. This court considered the credibility and reliability of the tip, determining

that the informant was “undeniably credible” based on his proven “track record.” Id. at

667-68. But this court concluded that the information obtained from the informant must

also show a basis of knowledge, and that the innocuous details provided by the informant

– the description of Cook’s clothing, his physical appearance, his vehicle, and his present

location – did not explain the basis for the informant’s claim that Cook was selling

narcotics. Id. at 668. The informant in Cook never claimed that he had bought drugs

from Cook or had seen him selling drugs. Id. By contrast, the affidavit here explains that

the informant recently and personally observed Freeman at the home with firearms

dealing narcotics.

7 In addition, Officer Peltz corroborated various aspects of the tip. Officer Peltz

averred that he “conducted surveillance of the address and observed . . . Freeman meeting

customers and letting people into the front door of the address. Customers stayed for

short periods of time consistent with narcotics dealing.” The district court determined,

and Freeman argues, that Officer Peltz’s corroboration of these facts did not support the

veracity or reliability of the informant. While these details may not be necessarily

incriminating on their face, caselaw is clear that a reviewing magistrate may rely on

minimal corroboration to evaluate the totality of the circumstances. See State v.

McCloskey, 453 N.W.2d 700, 704 (Minn. 1990). Corroboration of even part of an

informant’s tip may suggest that the entire tip is reliable. Siegfried, 274 N.W.2d at 115;

see also Wiley, 366 N.W.2d at 269 (providing that corroboration of facts that are not “key

detail[s]” lends “credence to the informant’s tip”). Officer Peltz’s observation of short

visits occurring at the home that were consistent with narcotics-dealing activities help

strengthen the informant’s veracity.

The state further argues that Freeman’s criminal record – a weapons-related arrest

in 2009 – bolsters the issuing judge’s probable cause determination. To be sure, “[a]

person’s criminal record is among the circumstances a judge may consider when

determining whether probable cause exists for a search warrant.” State v. Carter, 697

N.W.2d 199, 205 (Minn. 2005). Because this criminal history is limited to an arrest and

does not include weapons-related convictions or convictions of controlled-substance

offenses, however, it is of limited probative value when determining probable cause. See

id. (“Courts also occasionally consider arrests not resulting in conviction, as when the

8 arrest involves a crime of the same general nature as the one which the warrant is seeking

to uncover. But a criminal record, even a long one, is best used as corroborative

information and not as the sole basis for probable cause.” (quotation omitted));

McCloskey, 453 N.W.2d at 704 (providing that, despite the defendant’s criminal history

consisting of only two arrests, his “relatively minor trouble with the law was perhaps of

some slight probative value”).

Finally, great deference is owed to an issuing judge’s probable cause

determination. Rochefort, 631 N.W.2d at 804. “[T]he resolution of doubtful or marginal

cases should be largely determined by the preference to be accorded to warrants.”

McCloskey, 453 N.W.2d at 704 (quotation omitted). A reviewing district court does not

subject the warrant to de novo review and must not scrutinize the search-warrant affidavit

in a grudging or hypertechnical manner. State v. Anderson, 439 N.W.2d 422, 425 (Minn.

App. 1989) (quoting Gates, 462 U.S. at 236, 103 S. Ct. at 2331), review denied (Minn.

June 21, 1989).

Given the totality of the circumstances set forth in the search warrant and the great

deference owed to the issuing judge’s determination of probable cause, we hold that the

issuing judge had a substantial basis to conclude that there was a “fair probability” that

contraband would be found at the home on Knox Avenue. We therefore reverse the

district court’s suppression order and remand for further proceedings.

Reversed and remanded.