This opinion will be unpublished and may not be cited except as provided by Minn.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 A13-2128
State of Minnesota, Respondent,
vs.
Larry Jermaine McCool, Appellant.
Filed November 24, 2014 Affirmed Halbrooks, Judge
Hennepin County District Court File No. 27-CR-12-3234
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,
Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
On appeal from his conviction of first-degree controlled-substance crime (sale),
appellant argues the district court (1) erred by denying appellant’s motion to suppress evidence obtained from a warranted search of appellant’s car; (2) denied appellant his
right to a fair trial by denying his request for an in camera review of the CRI’s identity;
(3) abused its discretion when it denied appellant’s request for a continuance to hire
substitute counsel; and (4) abused its discretion by denying his motion for a mistrial or to
reopen the Rasmussen hearing based on new information. Appellant also raises three
additional issues in his pro se brief. We affirm.
FACTS
In January 2012, the Violent Offender Task Force began an investigation that
involved appellant Larry McCool, a residential property in Minneapolis, and a 2001
white Cadillac Deville with an identified license-plate number. A confidential reliable
informant (CRI)1 reported that McCool was distributing crack cocaine from the residence
and using the Cadillac to transport it. Investigators learned from police records that in
October 2011 McCool had been stopped in the Cadillac and found to have marijuana in
the car. In late January, they also observed McCool driving the Cadillac and at the
residence under investigation.
On January 26, 2012, investigators arrested McCool based on their investigation
and other information provided by the CRI when McCool was at the Public Safety
Facility for a court appearance. That same day, investigators executed a search warrant at
the residence and seized a large quantity of crack cocaine. The next day, investigators
located the Cadillac in a parking ramp across the street from the Public Safety Facility.
1 The informant had previously provided information that was corroborated and found to be true and accurate.
2 Taking McCool’s keys from his inventoried property at the jail, an investigator drove the
Cadillac to the impound lot and secured a search warrant. During a subsequent search of
the Cadillac, investigators found 24 grams of crack cocaine in the glove box and the
engine compartment, as well as assorted documents bearing McCool’s name.
While the vehicle search was underway, an investigator interviewed McCool at the
jail. The investigator activated a handheld digital audio-recording device before advising
McCool of his Miranda rights, observed that a red light came on, and stopped the
recording at the end of the interview. During this interview, McCool reportedly
confessed that he had driven the Cadillac to his hearing the day before and that there was
crack cocaine in the glove box and the engine compartment.
On February 2, 2012, the state charged McCool with first-degree controlled-
substance crime (sale), in violation of Minn. Stat. § 152.021, subd. 1(1) (2010). McCool
was represented by a private attorney until July 30, 2012, after which the district court
granted McCool’s request for appointment of a public defender. Through his new
attorney, McCool moved the court:
to suppress evidence resulting from the search of the Cadillac, arguing that the warrant was not supported by probable cause
to suppress statements that he made, arguing that there was a substantial Scales violation and intentional destruction of evidence because the recording of his custodial interview was ultimately unavailable
to disclose the identity of the CRI, or in the alternative, for an in camera review
to suppress all evidence obtained as a result of McCool’s warrantless arrest, arguing that it was not supported by probable cause.
3 The district court denied these pretrial motions. On April 30, 2013, the date set for trial,
McCool requested a continuance in order to retain private counsel, which the district
court also denied. During trial, McCool moved to reopen the Rasmussen hearing or for a
mistrial based on new information elicited at trial about the missing recording of his
custodial interview. The district court denied the motion. At the conclusion of the two-
day trial, the jury found McCool guilty as charged. This appeal follows.
DECISION
I.
McCool argues that the district court clearly erred by denying his motion to
suppress the evidence obtained from a search of the Cadillac. He contends that the search
warrant was not supported by probable cause. Both the United States and Minnesota
Constitutions protect citizens against unreasonable searches and seizures. U.S. Const.
amend. IV; Minn. Const. art. 1, § 10. To be valid, a search warrant must be supported by
probable cause. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). We review a
warrant application to determine whether the issuing magistrate had a “substantial basis”
to conclude that probable cause exists. State v. Zanter, 535 N.W.2d 624, 633 (Minn.
1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). An
application has a substantial basis when there is a “‘fair probability that contraband or
evidence of a crime will be found in a particular place.’” Id. (quoting Gates, 462 U.S. at
238, 103 S. Ct. at 2332). Whether probable cause exists to issue a search warrant is
determined under a “totality-of-the-circumstances” test. Gates, 462 U.S. at 238, 103
S. Ct. at 2332.
4 “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). A reviewing court
gives great deference to the issuing judge’s probable-cause determination. State v.
Rochefort, 631 N.W.2d 802, 804-05 (Minn. 2001). “[T]he resolution of doubtful or
marginal cases should be largely determined by the preference to be accorded warrants.”
State v. Holiday, 749 N.W.2d 833, 840 (Minn. App. 2008) (quotation omitted).
Here, on January 27, the district court issued a warrant to search the Cadillac
based on the following information contained in an affidavit: a CRI, who had previously
provided reliable information to police, reported that McCool was distributing crack
cocaine from the identified residence and was using the Cadillac to transport it;
investigators executed a search warrant at the residence on January 26 and seized a “large
quantity of crack cocaine”; investigators observed McCool driving the Cadillac and at the
residence within 72 hours of the search-warrant application for the Cadillac; McCool had
been stopped in the Cadillac approximately three months earlier and cited for marijuana
in a motor vehicle; McCool was arrested on January 26 at the Public Safety Facility and
the Cadillac was later found in a parking ramp directly across the street.
Reliance on CRI
Law enforcement may rely on information provided by a CRI in establishing
probable cause for a search warrant. See Wiley, 366 N.W.2d at 269 (finding that probable
5 cause supported a search warrant based on corroborated information provided by a
reliable CRI). The informant’s veracity and basis of knowledge are among the
considerations assessed under the totality-of-the-circumstances test. State v. Ward, 580
N.W.2d 67, 71 (Minn. App. 1998). A proven track record is “one of the primary indicia
of an informant’s veracity.” State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). A
statement in the affidavit attesting to the informant’s proven track is sufficient—
elaboration concerning the specifics of the CRI’s track record is not typically required.
See Wiley, 366 N.W.2d at 269 (holding that, although more detail is preferable, a
statement that an informant “has been used over several years successfully” was
sufficient). Here, the affidavit provides:
This CRI has provided names and addresses of parties known to the CRI to be involved in the distribution of narcotics, to your affiant. This CRI has provided information to local law enforcement officer[]s regarding narcotics and weapons traffickers in the Twin Cities metro area in the past. Information provided by the CRI was independently corroborated by your affiant and other law enforcement officers and found to be true and correct.
We conclude that this statement is sufficient to establish the CRI’s veracity.
As for the informant’s basis of knowledge, “[r]ecent personal observation of
incriminating conduct has traditionally been . . . preferred,” but corroboration of even
minor details can lend credence to an informant’s tip. Id. Here, the affidavit does not
establish the CRI’s basis of knowledge.2 It simply states that “Your affiant learned from
2 At the suppression hearing, an investigator testified that the CRI had reported firsthand observations of McCool in possession of crack cocaine and had identified McCool from a
6 a CRI that McCool was distributing crack cocaine from [the residence] and was using the
[Cadillac]. The CRI further reported that McCool uses the [Cadillac] to transport his
crack cocaine.”
McCool argues that without an express statement regarding the CRI’s basis of
knowledge in the affidavit, it is insufficient to establish probable cause. But the totality-
of-the-circumstances approach “recognizes that each informer is different and that all of
the stated facts relating to the informer should be considered.” State v. McCloskey, 453
N.W.2d 700, 703 (Minn. 1990). Independent corroboration of the information
provided—even corroboration of minor details—can assist in assessing the reliability of
the information given. See id. at 704 (stating that “minimal corroboration is at least
another relevant factor” in the totality-of-the-circumstances test). An informant’s basis of
knowledge, reliability, and veracity “should be understood simply as closely intertwined
issues that may usefully illuminate the commonsense, practical question whether there is
‘probable cause’ . . . .” Gates, 462 U.S. at 230, 103 S. Ct. at 2328.
In State v. Albrecht, we concluded that an anonymous tip was insufficient to
support a finding of probable cause for a search warrant because the information
corroborated was easily obtained and publicly available. 465 N.W.2d 107, 109 (Minn.
App. 1991). But unlike this case, the investigators in Albrecht had not established the
informant’s veracity. Id. at 108-09. In addition, investigators here had recently observed
McCool at the residence, and in the Cadillac, which was found parked near where
photo lineup. This information was omitted from the search-warrant application and is therefore not part of our analysis.
7 McCool was arrested. A search of the residence, where the CRI claimed that McCool
was distributing crack cocaine, resulted in the seizure of a large quantity of crack cocaine.
McCool had also been stopped with marijuana in the Cadillac a few months earlier.
Finally, based on the affiant’s training and experience, “people who are involved in the
distribution of narcotics often use vehicles to transport, protect, and hide their illegal
narcotics.”
The district court found that the information provided by the CRI, the subsequent
corroboration by investigators, and the CRI’s accuracy with past information, when taken
together, were sufficient to establish probable cause, despite no statement in the affidavit
about the CRI’s basis of knowledge. Based on the totality of the circumstances and given
the preference accorded to warrants in close cases, we conclude that the absence of an
express statement of the CRI’s basis of knowledge does not invalidate the search warrant
here.
Nexus
McCool argues that the warrant application failed to establish a nexus between the
alleged crime and the Cadillac. We disagree. An issuing judge “is entitled to draw
common-sense and reasonable inferences from the facts and circumstances” set forth in
an affidavit. State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004) (quotation
omitted), review denied (Minn. Apr. 20, 2004). We conclude that the issuing judge
properly determined based on information provided by the CRI and other information
developed during the investigation that there was a sufficient nexus between the alleged
crime and the Cadillac.
8 McCool also challenges the temporal nexus of the information provided and the
search of the Cadillac. Evidence supporting a finding of probable cause must be closely
related in time to the issuance of the search warrant. State v. McGrath, 706 N.W.2d 532,
544 (Minn. App. 2005). The affidavit indicates that the investigation began in January
2012 and that the information from the CRI was obtained during the course of the
investigation. Within 72 hours of the search-warrant application, investigators had
observed McCool in the Cadillac and at the residence where he was purportedly
distributing crack cocaine and where a large quantity of crack cocaine was found on
January 26. Based on the location of the Cadillac, it is reasonable to infer that McCool
had driven the Cadillac on January 26. We conclude that the issuing judge properly
determined that there was a sufficient temporal nexus between the alleged crime and the
Cadillac.
Having reviewed the totality of the circumstances, including the role of the CRI
and the nexus between the alleged crime and the Cadillac, we conclude that the search-
warrant application contains specific facts sufficient to show a “fair probability that
contraband or evidence of a crime will be found” in the Cadillac. The district court
therefore did not clearly err by denying McCool’s motion to suppress the evidence
obtained from the search of the Cadillac.
9 II.
McCool argues that the district court abused its discretion by denying his motion
for an in camera review of the identity of the CRI. 3 The district court found that
McCool’s assertion that the CRI’s testimony would be helpful to his defense was based
on “mere speculation” and “does not provide this Court with facts that would establish
that the in[]camera review would be helpful.”
Minnesota law recognizes a privilege to withhold the identity of a CRI because of
the state’s “‘legitimate interest in protecting the identity of persons who provide
information to law enforcement.’” State v. Rambahal, 751 N.W.2d 84, 90 (Minn. 2008)
(quoting State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002)). This interest must give
way, however, “when the disclosure of an informer’s identity, or the contents of his
communication, is relevant and helpful to the defense of an accused, or is essential to a
fair determination of a cause.” Id. (quotation omitted). The burden is on the defendant to
establish the need for disclosure. Id.
The Minnesota Supreme Court has adopted four nonexclusive factors to consider
when “determining whether to order disclosure of a confidential informant’s identity:
(1) whether the informant was a material witness; (2) whether the [informant’s] testimony
will be material to the issue of guilt; (3) whether testimony of officers is suspect; and
(4) whether the informant’s testimony might disclose entrapment.” Id. (quotations
omitted). But ultimately, whether to disclose the informant’s identity “remains a
3 McCool moved the district court for disclosure of the CRI’s identity or, in the alternative, for an in camera review. On appeal, he does not challenge the denial of his motion for outright disclosure.
10 balancing test between the defendant’s right to prepare a defense and the public’s interest
in effective law enforcement.” Id. “If the defendant fails to meet this burden but is able
to establish a basis for inquiry by the court, then the court should hold an in camera
hearing to consider affidavits or to interview the informant in person.” State v. Ford, 322
N.W.2d 611, 614 (Minn. 1982).
A defendant can establish a basis of inquiry for an in camera review “by making a
prima facie showing challenging the veracity of a search warrant, or by making a prima
facie showing that the informant may be a material witness at trial.” State v. Wessels,
424 N.W.2d 572, 575 (Minn. App. 1988), review denied (Minn. July 6, 1988). It is
inappropriate to hold an in camera review only “to allow defense counsel to conduct a
fishing expedition.” State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989). “[C]ourts
should not require in camera disclosure solely on the basis of speculation by the
defendant that the informant’s testimony might be helpful. The defendant must explain
precisely what testimony he thinks the informant will give and how this testimony will be
relevant to a material issue of guilt or innocence.” Syrovatka v. State, 278 N.W.2d 558,
562 (Minn. 1979).
McCool did not explain to the district court how the CRI’s identity or testimony
would be relevant to a material issue of guilt or innocence. He argues for the first time
on appeal that the CRI was a material witness.4 But because McCool did not raise this
argument to the district court, the district court had no opportunity to address it, and it is
4 The CRI did not testify at trial and no substantive information from the CRI was introduced at trial.
11 waived on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that
“[t]his court generally will not decide issues which were not raised before the district
court”). We conclude that the district court properly found that McCool fails to provide
more than “mere speculation” that disclosure of the CRI’s identity would be helpful to his
defense. Therefore, the district court did not abuse its discretion by denying McCool’s
motion for an in camera review of the CRI’s identity.
III.
McCool argues that the district court abused its discretion by denying his motion
for a continuance to hire a private attorney. We review the denial of a motion for a
continuance for a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn.
1987).
The federal and state constitutions provide a criminal defendant the right to the
assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. “This right
includes a fair opportunity to secure counsel of his choice.” State v. Vance, 254 N.W.2d
353, 358 (Minn. 1977). But the right to counsel does not give a defendant “the unbridled
right to be represented by counsel of his choice.” Id. A defendant cannot demand a
continuance for the purpose of delay or for “arbitrarily choosing to substitute counsel at
the time of trial.” Id. A decision on a motion for a continuance to secure private counsel
“should be based on all facts and circumstances surrounding the request.” Id.
The facts and circumstances here show that McCool, who was charged on
February 2, 2012, was originally represented by a private attorney. In late July 2012, the
district court granted that attorney’s motion to withdraw. McCool then requested and the
12 district court granted the appointment of a public defender. On April 30, 2013, the date
set for trial, McCool moved the district court for a continuance to allow him to hire new
private counsel. The district court denied the motion on the ground that the case was
“getting very very old” and McCool was represented by a “very competent” and “very
fine” public defender. The district court heard motions in limine that afternoon and
empaneled the jury the following day.
In determining whether the district court properly exercised its discretion by
denying a motion for a continuance, appellate courts consider “whether the defendant
was prejudiced in preparing and presenting his defense.” State v. Fagerstrom, 286 Minn.
295, 299, 176 N.W.2d 261, 264-65 (1970). McCool does not argue that he was
prejudiced; he argues that the state would not have been prejudiced by a continuance. In
the absence of any prejudice to McCool, and given the extended length of time that
McCool had to retain substitute private counsel, we conclude that the district court did
not abuse its discretion by denying McCool’s motion for a continuance.
IV.
McCool challenges the district court’s denial of his motion for a mistrial and to
reopen the Rasmussen hearing based on new information in an investigator’s trial
testimony about the specific sequence of events relating to the unavailable recording of
his custodial interview.
At the Rasmussen hearing, an investigator testified that he used a digital recording
device that stores recordings on a memory card. The investigator explained that later, he
was unable to open the file containing the recording, and that after consulting with
13 information-technology personnel, he concluded that the memory card was corrupted and
discarded it. The district court denied McCool’s motion to suppress evidence of
McCool’s statement, ruling that when the investigator discarded the memory card it had
no apparent and material exculpatory value and was not done in bad faith, and there was
no substantial Scales violation. At trial, the investigator testified again about the
custodial interview. When asked why the recording was unavailable, the investigator
stated, “When I attempted to download the file from the recorder to my computer, the file
was apparently corrupted and it was not downloaded.” On redirect and recross-
examination, additional details came out about the sequence of events relating to attempts
to upload and download the file.
Later that day, McCool moved for a mistrial and to reopen the Rasmussen hearing
based on the investigator’s testimony.5 The motion was based on three pieces of new
information: (1) the investigator had listened to the recording to prepare his report, (2) the
memory card was thrown out “much later on in the process,” and (3) elaboration on the
upload/download process. The prosecutor agreed that some of the trial testimony had not
been elicited at the Rasmussen hearing but contended that none of the new information
contradicted the earlier testimony. The district court denied McCool’s motion,
acknowledging that some new information had come out at trial, but ruling that it had no
impact on the court’s denial of McCool’s motion to suppress because there was still no
5 McCool focused on the Rasmussen argument at the district court, but focuses almost entirely on the mistrial argument on appeal.
14 apparent and material exculpatory value to the memory card when it was discarded or any
evidence of bad faith.
Mistrial
We review a district court’s denial of a motion seeking a mistrial for abuse of
discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). McCool argues that the
district court abused its discretion by denying his motion for a mistrial because “the
state’s failure to disclose before trial that the audio may have existed on [the
investigator]’s computer deprived McCool of an opportunity to investigate the computer
and the audio record, which deprived McCool of his right to a fair trial.” But because
McCool did not ask the district court for an opportunity to conduct a forensic review,
there is no decision to review on appeal.
“[A] mistrial should not be granted unless there is a reasonable probability that the
outcome of the trial would be different.” Id. at 53. In exercising its discretion when
ruling on a motion for a mistrial based upon a discovery violation, a district court should
take into account: “(1) the reason why disclosure was not made; (2) the extent of
prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a
continuance; and (4) any other relevant factors.” State v. Lindsey, 284 N.W.2d 368, 373
(Minn. 1979).
Here, there is no indication that the recording (1) exists or (2) would contradict the
investigator’s testimony about McCool’s purported confession. But even if a recording
existed and it was established that McCool did not confess that the Cadillac contained
crack cocaine, the warranted search of the vehicle—which was not based upon McCool’s
15 purported confession—would have revealed the cocaine. McCool, therefore, cannot
show prejudice based on the state’s failure to clarify earlier the sequence of events
leading to the loss of the recording. Because there is no reasonable probability that the
outcome of the trial would have been different if the state had disclosed the information
earlier, we conclude that the district court did not abuse its discretion by denying
McCool’s motion for a mistrial.
Reopen Rasmussen hearing
McCool also contends that the district court erred by denying his request to reopen
the Rasmussen hearing because, if a recording existed, it may have been exculpatory.
The district court has inherent authority to decide motions to reconsider an omnibus
ruling, and we review a district court’s decision not to reopen an omnibus hearing under
an abuse-of-discretion standard. State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn.
App. 2002). The district court ruled that the new information elicited at trial would not
affect its ruling on McCool’s motion to suppress his statement. We conclude that the
district court did not abuse its discretion by determining that the possibility that
exculpatory evidence might exist was insufficient to justify reopening the Rasmussen
hearing.
In his pro se supplemental brief, McCool argues that the district court erred by
denying his motion to suppress his statement because the investigator intentionally
destroyed evidence when he discarded the memory card and the corrupted audio
recording constitutes a substantial Scales violation. The district court found that
(1) “there is no evidence that [the investigator] acted in bad faith when he decided to
16 discard the memory card” and (2) any Scales violation was not substantial because
McCool does not dispute that a Miranda warning was given and the failure of the
recording device was unintentional and unforeseen.
Destruction of evidence
“A defendant’s right to due process of law is implicated when the [s]tate loses,
destroys, or otherwise fails to preserve material evidence.” State v. Jenkins, 782 N.W.2d
211, 235 (Minn. 2010). “The failure to preserve potentially useful evidence that is
actually collected during a criminal investigation does not constitute a denial of due
process unless the defendant shows bad faith on the part of the police.” Id. McCool
argues that the bad-faith element is satisfied because the investigator intentionally
discarded the memory card.
When analyzing a destruction-of-evidence claim, appellate courts “consider
whether the destruction was intentional and whether the exculpatory value of the lost or
destroyed evidence was apparent and material.” State v. McDonough, 631 N.W.2d 373,
387 (Minn. 2001). Here, the district court found that “[t]he record does not indicate that
the exculpatory value of the memory card was apparent and material prior to [the
investigator]’s decision to throw it away.” On appeal, McCool does not specifically
challenge this finding, which is supported by the record. We conclude that the district
court did not err by denying McCool’s motion to suppress his statement based on a
destruction-of-evidence claim.
17 Scales violation
Whether a failure to record a custodial interrogation is a substantial violation of
the Scales recording requirement is a legal question that we review de novo. State v.
Inman, 692 N.W.2d 76, 79 (Minn. 2005). “Among the factors in determining the
substantiality of a Scales violation is whether the violation is prejudicial to the accused.”
Id. at 81 (citing State v. Scales, 518 N.W.2d 587, 592 n.5 (Minn. 1994)). A violation is
prejudicial “if the accused alleges, contrary to the prosecution’s assertions, that no
Miranda warning was given or that he did not waive his Miranda rights.” Id. But if no
party disputes whether the Miranda warning was given or whether the accused waived
his right to remain silent, “the lack of a recording creates no prejudice to the accused.”
Id. Here, the district court correctly observed that McCool does not dispute that a
Miranda warning was given or that he waived his rights. Because the lack of a recording
does not raise any factual dispute about the existence and validity of a Miranda waiver,
we conclude that the district court properly found that the corrupted audio recording is
not a substantial Scales violation.
V.
In a pro se supplemental brief and reply brief, McCool recounts his version of the
events surrounding his arrest and the investigation and argues:
the evidence found in the Cadillac, which was not registered to him and was not in his control on the date of his arrest, cannot support his conviction
impounding the Cadillac without a search warrant violated his constitutional rights and
the evidence was insufficient to convict him of first-degree “sale.”
18 These supplemental arguments are unsupported by legal citation and do not warrant
relief. We need “not consider pro se claims on appeal that are unsupported by either
arguments or citations to legal authority.” State v. Bartylla, 755 N.W.2d 8, 22 (Minn.
2008).
Affirmed.