State of Minnesota v. Ronald Keith Halverson

• Court: Court of Appeals of Minnesota
• Decided: September 14, 2015
• Docket: A14-1533
• Status: Unpublished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This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1533

State of Minnesota, Respondent,

vs.

Ronald Keith Halverson, Appellant.

Filed September 14, 2015 Affirmed Rodenberg, Judge

Pine County District Court File No. 58-CR-12-670

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

Reese Frederickson, Pine County Attorney, Michelle R. Skubitz, Assistant County Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook Chief Appellate Public Defender, Mark D. Nyvold, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Reyes, Judge.

UNPUBLISHED OPINION

RODENBERG, Judge

Appellant Ronald Keith Halverson challenges the denial of his motion to suppress

evidence after his controlled-substance conviction. He argues that the warrant to search his residence was not supported by probable cause because it relied exclusively on

information supplied by an unreliable informant. Because the issuing judge had a

substantial basis to conclude that probable cause supported the search warrant, we affirm.

FACTS

On October 2, 2012, Justin Halverson, appellant’s son, was stopped for speeding in

South Dakota. The South Dakota Highway Patrol officer noticed that Justin appeared

nervous. Justin declined the officer’s request to search his vehicle. The officer was

accompanied by a drug-detection dog, and the officer had the dog sniff the exterior of

Justin’s vehicle. The dog alerted to the presence of drugs in the trunk/wheel well area of

the vehicle. The officer then searched the trunk and found 77 pounds of marijuana. Justin

was arrested. He agreed to speak with an agent of the Drug Enforcement Administration

(DEA).

Justin spoke with DEA Agent Roger Hanzlik. He admitted that he was delivering

marijuana to appellant at appellant’s residence in Willow River, Minnesota. Justin stated

that he was returning from Arizona where he had picked up marijuana for appellant, as he

had done on several earlier occasions. When in Arizona, Justin would meet with an

individual who provided the marijuana appellant ordered, the marijuana would be given to

Justin, and he would then transport the marijuana back to Minnesota. Justin would deliver

the marijuana to appellant, who, in turn, paid him for the marijuana and delivery.

Appellant then sold the marijuana in Minnesota and surrounding states.

After interviewing Justin, Agent Hanzlik contacted Investigator Andrew

Abrahamson of the Pine County Sheriff’s Office and the East Central Drug and Violent

2 Offender Task Force and explained that he was working with a cooperating defendant.

Investigator Abrahamson spoke with Justin over the telephone, and Justin explained how

he transported marijuana for appellant. Justin stated that appellant paid him one hundred

dollars for each pound of marijuana transported, that he had transported several hundred

pounds of marijuana to appellant’s residence over the past five months, and that he

expected to be paid $7,700 for the 77 pounds of marijuana he was presently transporting.

Justin also explained where appellant’s home was located, what was located at the end of

the driveway, described what appellant looked like, and stated that appellant had heat-

sealing bags, drug paraphernalia, and large amounts of cash at his home. Justin was aware

that providing false information would worsen his legal predicament.

Investigator Abrahamson surveilled appellant’s residence after his phone

conversation with Justin. He saw a white Ford F-250 truck leave the residence. Within

five minutes of seeing the truck leave, Investigator Abrahamson received a phone call from

a DEA agent who was with Justin stating that appellant had sent Justin a text message

advising Justin that appellant was going to a bar for dinner. Justin told the agent that

appellant would be driving a white Ford F-250 truck.

At approximately 8:30 p.m., and supervised by a DEA agent, Justin placed a

recorded phone call to appellant. Justin told appellant that he was in Sioux Falls, South

Dakota, and that his travel was delayed due to a car accident on the interstate. Justin said

that he would not be at appellant’s residence until around 1:00 p.m. on October 3.

Appellant told Justin to relax and not worry about the delay, to “do what it takes,” that

3 Justin was “doing all the work anyways,” and that Justin knew where the key was hidden

in the event that appellant was not home when Justin arrived.

Based on the information obtained from Justin, Investigator Abrahamson applied

for and received a warrant to search appellant’s residence. The DEA kept three pounds of

the marijuana as evidence. On October 3, 2012, Justin was wired for audio recording and

followed to appellant’s Willow River residence; Investigator Abrahamson monitored the

audio. When Justin arrived at appellant’s residence, Investigator Abrahamson could hear

the sounds of Justin and appellant unloading the marijuana from Justin’s vehicle. Justin

explained to appellant that three pounds of marijuana were missing because a friend of his

was going to sell the marijuana in the twin cities. Justin and appellant discussed payment

for the marijuana delivery, and appellant agreed to pay Justin $5,000. Justin left the

residence and met law-enforcement officers at a prearranged location. Justin was

searched, and the $5,000 was seized. Justin told law enforcement that appellant had

$25,000 in a kitchen drawer and that the marijuana was placed in the laundry room of

appellant’s residence.

The search warrant was then executed at the residence while Investigator

Abrahamson met with Justin. In appellant’s laundry room area, officers found three green

U.S. Army bags containing approximately 70 pounds of marijuana. These were the same

bags Justin had used to transport the marijuana to appellant’s residence. Officers also

seized $25,000 in cash and numerous cell phones. Appellant was arrested.

The state charged appellant with one count of second-degree sale of marijuana, in

violation of Minn. Stat. § 152.022, subd. 1(4) (2012), and one count of third-degree

4 possession of marijuana, in violation of Minn. Stat. § 152.023, subds. 2(a)(5), 3(a) (2012).

Appellant moved both to suppress the evidence seized from his residence and to dismiss

the second-degree sale charge. Following a Rasmussen hearing, the district court denied

appellant’s motions. The district court determined that sufficient probable cause supported

both the search warrant and the second-degree sale charge.

The state agreed to dismiss the second-degree sale charge, and appellant agreed to a

bench trial under Minn. R. Crim. P. 26.01, subd. 2., on the third-degree possession charge,

with the evidence submitted by way of documents stipulated to be admissible. See Dereje

v. State, 837 N.W.2d 714, 720 (Minn. 2013) (holding that “the submission of documentary

evidence presenting contradictory versions of events” is a bench trial under Minn. R. Crim.

P. 26.01, subd. 2, and not a stipulated-facts trial under 26.01, subd. 3). The district court

found appellant guilty of third-degree possession of marijuana. This appeal followed.

DECISION

Appellant challenges the district court’s denial of his motion to suppress the

evidence seized in the search of his residence. He asserts that the search warrant was not

supported by probable cause.

The United States and Minnesota Constitutions protect citizens from 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. “A search warrant is

supported by probable cause 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) (quotation omitted). In determining whether probable cause exists, the issuing judge

5 considers the “totality of the circumstances” and makes 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) (quotation omitted).

We afford great deference to the district court’s probable cause determination in

issuing a search warrant. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). When

reviewing the probable cause determination, we consider only “whether the judge issuing

the warrant had a substantial basis for concluding that probable cause existed,” State v.

Jenkins, 782 N.W.2d 211, 222-23 (Minn. 2010) (quotation omitted), and, under the totality

of the circumstances, we are “careful not to review each component of the affidavit in

isolation,” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Searches conducted

pursuant to a warrant are strongly preferred, Rochefort, 631 N.W.2d at 804, and “doubtful

or marginal cases should be largely determined by the deference to be accorded to

warrants,” Wiley, 366 N.W.2d at 268 (quotations omitted).

Appellant argues that the warrant application did not provide the issuing judge with

a substantial basis to believe that the informant was reliable and credible. He asserts that

“Justin was a stool pigeon whose self-serving statements were not only not entitled to a

presumption of reliability, they made him presumptively unreliable.”

The warrant application was based primarily on information supplied by Justin.

“Where a probable cause determination is based on an informant’s tip, the informant’s

veracity and the basis of his or her knowledge are considerations under the totality test.”

6 State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). Appellant does not challenge the

basis of Justin’s knowledge, but he argues that Justin was not sufficiently reliable.

We consider six factors when evaluating the reliability of an informant:

(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).

The majority of these factors do not apply here. Justin was not a first-time citizen

informant, and there is no indication in the application that he had given reliable

information in the past, or that he voluntarily came forward. The warrant was not issued

based on a “controlled purchase.” The application does, however, contain statements

against Justin’s personal penal interest and corroboration of the information he had

provided to law enforcement.

The warrant application includes extensive and detailed information about Justin’s

involvement in appellant’s drug operation, and includes multiple incriminating statements

made by Justin. In making its probable cause determination, the district court considered

Justin’s statements against his penal interest. Appellant contends that these statements do

not support the determination that probable cause existed to issue the search warrant. He

characterizes Justin as a “stool pigeon” who had “an enormous motive to fabricate

7 information to obtain leniency for himself” after approximately 77 pounds of marijuana

were found in his possession.

[T]he fact that an informant makes a statement against his or her own penal interest is of some minimal relevance in a totality-of-the-circumstances analysis. . . . But courts remain reluctant to believe the typical “stool pigeon” who is arrested and who, at the suggestion of police, agrees to cooperate and name names in order to curry favor with the police.

Ward, 580 N.W.2d at 71-72 (quotation omitted).

Here, Justin was surely attempting to implicate appellant for some personal benefit

(not precisely revealed by this record) and to “curry favor with the police.” Id. After

being caught with a substantial amount of marijuana, he told law enforcement about his

role in the drug-trafficking operation. If the information he gave police concerning

appellant turned out to be false, Justin’s legal predicament would have worsened. In

conducting its probable cause analysis, the district court relied in part on Justin’s

knowledge that, if he provided false information to law enforcement, matters would be

worse for him. Caselaw discussing whether an informant’s knowledge of consequences

for providing false information can be used as an indicator of reliability is sparse and

appears generally in the context of an informant who comes forward voluntarily. See State

v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (“One who voluntarily

comes forward and identifies herself is more likely to be telling the truth because she

presumably knows that the police could arrest her for making a false report.”). Appellant

argues that “Justin being aware that if he lied things would get worse for him” did not

8 “provide a meaningful indicator that he was being truthful, because people lie all the time

thinking they can get away with it.”

We agree with the district court that Justin’s statements to law enforcement were

sufficiently against his legal interest as to support a finding of reliability. See State v.

Siegfried, 274 N.W.2d 113, 115 (Minn. 1978) (providing that “circumstances strongly

suggest” that information from an informant is reliable where “the police are able to show

that the tip involves an admission against the informer’s interest” and “where it is clear

from all the circumstances that the informer knows things will be worse for him if the tip

turns out to be false”). His statements to law enforcement incriminated Justin as a

significant actor in an interstate drug-smuggling operation.

Caselaw provides that an informant’s statement against his interest “establishes

reliability only when combined with another factor, such as corroboration.” See Ward, 580

N.W.2d at 72; see also State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990)

(concluding that the “mere fact that the statement was in some way against the informant’s

interest is of some minimal relevance in a totality-of-the-circumstances analysis of

probable cause”). Here, Justin’s statements against his interest were combined with

corroboration of the information he provided to law enforcement. The warrant application

identifies corroboration of the information Justin provided, including what was located at

the end of the driveway, the description of appellant, and the towns around appellant’s

residence. Importantly, the application also states that the investigator surveilling

appellant’s residence saw appellant leave in a white Ford F-250 truck only minutes before

9 receiving information that Justin had been told by text message that appellant would be

leaving his residence in such a truck.

Moreover, and providing additional corroboration, the warrant application details

the October 2 recorded telephone call between Justin and appellant. In this conversation,

Justin told appellant that he had been delayed in traffic in South Dakota and would not

arrive at appellant’s residence until around 1:00 p.m. the next day. In response, and

seemingly aware of Justin’s travels, appellant told Justin to “relax, you’re doing all the

work anyways and I will see you tomorrow.” Appellant argues that these facts do not

assist in establishing Justin’s reliability. But, this conversation gives credence to Justin’s

information and supports the probable cause determination of the issuing judge. See State

v. Holiday, 749 N.W.2d 833, 841 (Minn. App. 2008) (“Even corroboration of minor details

lends credence to an informant’s tip and is relevant to the probable-cause determination.”).

The district court also determined that the warrant was supported by probable cause

because the information contained in the warrant application implicated someone the

informant would be expected to protect. Appellant argues that “Justin pointing the finger

at his father did little to indicate trustworthiness, since the agents Justin was telling his

story to had no idea whether Justin and his father were close or estranged.”

An informant’s reliability can be established “where the tip implicates someone the

informer would be expected to protect.” Siegfried, 274 N.W.2d at 115. While law

enforcement may not have been apprised of the status of the relationship between Justin

and appellant, the fact that Justin implicated his father was a proper consideration in

making the probable cause determination. The father-son relationship provides another

10 circumstance that reinforces the district court’s determination that probable cause

supported the issuance of the warrant.

The search warrant here was issued before the controlled delivery of the marijuana.1

In the warrant application, Agent Abrahamson stated that he had “good reason to believe”

that “[m]arijuana and . . . scales, drug paraphernalia, drug notes and other items used for

the distribution or consumption of controlled substance” and “U.S. currency and other

monies” would be found at appellant’s residence. The warrant application briefly

mentions that Justin had “agreed to try and arrange a controlled delivery to [appellant],”

and states that Justin had “seen heat sealing bags and machines around [appellant’s] house,

large amounts of cash, [and] paraphernalia at the house” and had “delivered several

hundred pounds of marijuana to [appellant’s] residence over the past five months.”

In sum, when considering the totality of the circumstances set forth in the warrant

application and the circumstances supporting Justin’s reliability as an informant, there

1 In his motion to suppress, appellant argued that at the time the application for the search warrant was presented to the issuing judge, there was no specific allegation that illegal drugs were at appellant’s residence. In its order denying the motion to dismiss, the district court analyzed appellant’s argument as if an anticipatory search warrant had been issued. “An anticipatory warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specific residence.” U.S. v. Grubbs, 547 U.S. 90, 94, 126 S. Ct. 1494, 1498 (2006) (quotation omitted). “Most anticipatory warrants subject their execution to some condition precedent . . . – a so-called ‘triggering condition.’” Id. The search warrant here contains no such condition precedent. But appellant does not challenge the anticipatory nature of the warrant as an issue on appeal. As such, we have no occasion to address the issue. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). As discussed, sufficient information was provided in the warrant application to support the issuing judge’s finding that contraband would be found in appellant’s residence.

11 was sufficient probable cause to support the issuance of the search warrant. The district

court, therefore, did not err in denying appellant’s motion to suppress.

Affirmed.