author: PORITSKY, Judge.

text:
    STATE of Minnesota, Appellant, v. Corey Lamont HOLIDAY, Respondent.
    No. A07-2366.
    Court of Appeals of Minnesota.
    June 3, 2008.

      Lori Swanson, Attorney General, St. Paul, MN and Michael O. Freeman, Hen-nepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for appellant.
    Leonardo Castro, Hennepin County Public Defender, Mariam P. Mokri, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; SHUMAKER, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Appellant State of Minnesota challenges the district court’s suppression of evidence seized during a search conducted pursuant to a search warrant. Because the issuing magistrate had a substantial basis to conclude that probable cause existed to support the search warrant, we reverse.

FACTS

On March 27, 2007, the issuing magistrate signed a search warrant authorizing a “no-knock” search of respondent Corey Lamont Holiday, Holiday’s home, and Holiday’s car. The information for the supporting affidavit was provided in large part by two informants. The initial tip that drug activity was taking place at Holiday’s home was provided by a confidential informant (Cl), whose reliability was not vouched for by the affiant. After receiving the tip, the police set up an attempted controlled buy, using a confidential reliable informant (CRI). The supporting affidavit provided in pertinent part:

Within the last 72 hours, Your affiant was contacted by a confidential informant (Cl) about a black male they knew as “Corey”, and whose nickname was “Q,” who was selling crack cocaine and marijuana out of his residence. The Cl stated “Corey” was selling out of 2922 Aldrich Ave. N, Lower Unit. The Cl stated there are two doors on the back of the residence and the door on the left went directly into the lower unit. The Cl stated they had seen various people who would come to the back door of the residence. The Cl stated they knew three handguns are inside the residence which “Corey” uses to protect himself and his narcotics. The Cl stated “Corey” was a Mickey Cobra gang member.
The Cl also told your affiant that “Corey” drives a maroon Ford Expedition with silver rims with license plate URM-773. The Cl stated “Corey” uses this vehicle frequently to make deliveries of large amounts of crack cocaine and marijuana around Minneapolis. The Cl described “Corey” as a black male 32 years old, 5-6 with a medium build and braided hair.
Your affiant learned through GANG-NET, which is a data base of documented gang members throughout Minnesota; Corey Lamont Holiday, 04-22-1973, uses the nickname “Q” and is a documented Mickey Cobra Gangmember. The GANGNET system also stated that Holiday has “Violent Tendencies” and shot another member of the Mickey Cobra gang to gain more power within the gang. Holiday has also been to prison for Narcotics and Felon in Possession of a Firearm.
Your affiant conducted surveillance at 2922 Aldrich Ave. N and saw the maroon Ford Expedition with silver rims and MN URM-773 sitting, in the rear of the address. I also saw there was two doors on the back of the residence. All of this information was consisted [sic] with the information I received from the CI.
Within the past 48 hours, using a separate confidential reliable informant (CRI), I gave them pre-recorded buy money and sent them to 2922 Aldrich Ave. N, Lower Unit in an attempt to purchase narcotics. The CRI went to the rear left door and knocked. The door was answered by a black male that identified himself as being “Q”. The CRI asked for a “dub”, which is slang for a pill of crack cocaine. “Q” told the CRI that he did not know them and he would not sell anything to them. The CRI then left the address. As the CRI was leaving the address I saw Holiday leave the rear of the address, get into the maroon Ford Expedition URM-773, and begin following the CRI to see where they were going. After a short period of time Holiday returned to the address and went into the same door on the left that he had left from.
After the attempt [sic] buy I gave the CRI a booking photo of Holiday and the CRI positively identified him as the person that identified himself as “Q.” The CRI also stated the door on the left lead directly into the lower unit of 2922 Aid-rich Ave. N. This information was consistent with the information I received from the Cl.
This CRI has furnished reliable and accurate information in the past and his/ her information has led to the issuance of search warrants and the seizure of controlled substances and weapons. The CRI previous information has also led to the conviction of numerous others for narcotics related crimes.

On April 4, 2007, the police executed the search warrant. The police detained Holiday, searched him, and saw him kick a plastic bag containing marijuana from his pants leg onto the floor. The police also recovered marijuana from Holiday’s vehicle, kitchen, clothing items, and couch. The police recovered suspected crack cocaine, two digital gram scales, Ziploc baggies, approximately $1,400 in cash, and a box of shotgun ammunition. Holiday was charged with one count of fifth-degree controlled substance crime in violation of Minn.Stat. § 152.025, subds. 2(1), 3(b) (2006).

Holiday filed a motion to suppress the evidence of the search. The district court heard the matter and granted the motion. The district court determined that “the reliability of the Cl was not sufficiently established, that the corroboration of easily obtainable facts and an unsuccessful attempt to purchase narcotics do not establish probable cause even when considered as a whole.” The district court concluded that “when reviewing the affidavit as a whole the Court concludes that the information provided only gives rise to a mere suspicion of drug activity at the residence.”

The state filed a motion requesting the district court to reconsider its suppression decision. The district court acknowledged that it failed to mention Holiday’s criminal history in the initial order, but stated that Holiday’s criminal record was “at best ... only corroborative evidence and not a sole basis for probable cause to issue a search warrant.” The district court reaffirmed the initial suppression order, noting that the police did not sufficiently corroborate the Cl’s information and that the district court had appropriately weighed the unsuccessful controlled buy. This appeal follows.

ISSUE

Did the district court err in suppressing evidence obtained during a search conducted pursuant to a search warrant?

ANALYSIS

“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 the state appeals 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).

I. Suppressing the evidence has a critical impact on the state’s case.

First, we must determine whether the district court’s order suppressing the evidence will have a critical impact on the state’s case against the defendant. “When the likelihood of a successful prosecution is significantly reduced by the unavailability of the suppressed evidence, the critical-impact standard is met.” State v. McGrath, 706 N.W.2d 532, 539 (Minn.App.2005), review denied (Minn. Feb. 22, 2006). Here, the state asserts that the controlled-substance charge is based on the marijuana seized during the execution of the warrant and that without such evidence, it cannot prosecute the case. Holiday does not contest the state’s assertion. We conclude that the suppression of the evidence has a critical impact on the state’s ability to prosecute the case.

II. The warrant was supported by probable cause.

The second issue we must decide is whether the district court erred in suppressing the evidence based on its conclusion that the search warrant was not supported by probable cause. The state contends that the search warrant was based on probable cause and that the district court erred in concluding otherwise. Specifically, the state argues that the district court erred when it (1) failed to properly credit the Cl’s reliability, and (2) discounted Holiday’s suspicious conduct during the attempted controlled buy.

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 it is 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 (2006); State v. Harris, 589 N.W.2d 782, 787 (Minn.1999). “When determining whether a search warrant is supported by probable cause, we do not engage in a de novo review.” McGrath, 706 N.W.2d at 539. Instead, “[g]reat deference must be given to the issuing [magistrate’s] determination of probable cause.” State v. Valento, 405 N.W.2d 914, 918 (Minn.App.1987). This court limits its review “to ensuring that the issuing [magistrate] had a substantial basis for concluding that probable cause existed.” McGrath, 706 N.W.2d at 539.

To determine whether the issuing magistrate had a substantial basis for finding probable cause, we look to the “totality-of-the-cireumstances” test for probable cause:

The task of the issuing magistrate is simply to make a practical, commonsense 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, 76 L.Ed.2d 527 (1983)). In reviewing the sufficiency of the search-warrant affidavit under the totality-of-the-circumstances test, “courts must be careful not to review each component of the affidavit in isolation.” Id. “[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). Furthermore, “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).

A. The confidential informant was reliable.

The state argues that based on the showing in support of the Cl’s basis of knowledge and veracity, the Cl was reliable and the district court erred in concluding otherwise. The credibility of an informant is not assumed, and it is not enough for an affidavit to state in a “con-clusory fashion” that the informant is credible or reliable. State v. Siegfried, 274 N.W.2d 113, 114 (Minn.1978). Instead, “the affidavit must provide the magistrate with adequate information from which he can personally assess the informant’s credibility.” Id. In evaluating the informant’s credibility, the magistrate should consider the “basis of knowledge” and “veracity” of the informant supplying hearsay information. State v. Souto, 578 N.W.2d 744, 750 (Minn.1998) (citing Gates, 462 U.S. at 238, 103 S.Ct. at 2332). But the Supreme Court has also stated that the elements of basis of knowledge and veracity should not be

understood as entirely separate and independent requirements to be rigidly exacted in every case_ Rather ... they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is “probable cause” to believe that contraband or evidence is located in a particular place.

Gates, 462 U.S. at 230, 103 S.Ct. at 2328. “All of the facts relating to the informant should be considered in weighing reliability.” Souto, 578 N.W.2d at 750 (citing State v. McCloskey, 453 N.W.2d 700, 703 (Minn.1990)).

1. The confidential informant’s basis of knowledge was clearly sufficient.

“Recent personal observation of incriminating conduct has traditionally been the preferred basis for an informant’s knowledge.” Wiley, 366 N.W.2d at 269. Additionally, an informant’s “statement that the event was observed first-hand[ ] entitles his tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S.Ct. at 2330. Here, the affidavit stated that the Cl “had seen [Holiday] inside this residence within the last 48 hours with a quantity of crack cocaine that he was selling to various people who would come to the back door of the residence.” Thus, the Cl’s personal, firsthand basis of knowledge is persuasive for purposes of a probable-cause determination.

2. The confidential informant’s veracity was established.

Veracity can be established in a number of ways, such as showing that the informant has a proven track record of reliability, that the informant made an admission against interest, or that the informant’s tip implicates someone the informant would be expected to protect. Siegfried, 274 N.W.2d at 114-15. Alternatively, and most relevant to our case, veracity can be proven “by showing that details of the tip have been sufficiently corroborated so that it is clear the informant is telling the truth on this occasion.” Id. at 115.

Here, the district court concluded that the affidavit did not establish the Cl’s veracity because the Cl’s information was not sufficiently corroborated. First, in its order denying the motion to reconsider, the district court stated that “police corroboration of [Holiday’s] name, nickname, physical description, gang affiliation, and vehicle information add little to the Cl’s reliability.” Second, the district court found that the facts that were corroborated were “easily obtained” and thus inadequate to bolster the Cl’s credibility. Third, the district court stated that because the controlled buy was unsuccessful, “the Cl’s information concerning drug activity at the residence was never sufficiently corroborated.” Accordingly, the district court concluded that the search warrant was not supported by probable cause.

The state contends that the district court erroneously minimized or discounted the value of the corroborative facts. We agree. Even corroboration of minor details lends credence to an informant’s tip and is relevant to the probable-cause determination. See Wiley, 366 N.W.2d at 269 (recognizing that although not a key detail, corroboration of defendant’s name, residence, and make of vehicle lent credence to informant’s tip); McCloskey, 453 N.W.2d at 701, 704 (finding that even “minimal corroboration,” including defendant’s telephone number and the fact that defendant’s residence had a detached garage, is relevant in making the totality-of-the-circumstances assessment). Further, as indicated in Siegfried, police corroboration of “part of the informer’s tip as truthful may suggest that the entire case is reliable.” 274 N.W.2d at 115 (emphasis added). In satisfying the corroboration requirement, there is no mandate that every fact in the Cl’s tip be corroborated, that a certain number of facts be corroborated, or that certain types of facts must be corroborated. Accordingly, the district court erred in arbitrarily concluding that the corroboration of Holiday’s name, nickname, physical description, gang affiliation, and vehicle information “add[s] little to the Cl’s reliability.” Instead, the corroboration of even minor details lent credence to the information provided by the Cl and bolstered the Cl’s reliability.

Next, the state argues that the district court erred in categorizing the corroborated facts as “easily obtained.” The district court relied on State v. Albrecht for the proposition that when the facts corroborated are “easily obtained facts and conditions which by themselves are inadequate to support a finding of probable cause,” such corroboration may be unpersuasive. 465 N.W.2d 107, 109 (Minn.App.1991). In Albrecht, the police corroborated the defendant’s address and vehicle ownership. Id. This court held that such corroboration “without more, is not sufficient to support a finding of probable cause.” Id. Here, as the state correctly notes, some of the details in this case were easily obtained (e.g., defendant’s address) but other facts cannot be categorized as “easily obtained.” For example, Holiday’s gang affiliation and nickname would generally be known only to someone familiar with him. Additionally, the Cl told the police that there were two doors in the back of Holiday’s residence and that the left door led directly into the lower unit. When the CRI attempted the controlled buy, the CRI corroborated this information by indicating that the back left door did, in fact, lead directly into the lower unit. Such information is not necessarily “easily obtained.”

Finally, the state argues the district court erred in its conclusion that because the controlled buy failed, the CI’s report was not corroborated. According to the affidavit before the magistrate, “The CRI asked for a ‘dub,’ which is slang for a pill of crack cocaine. [Holiday] told the CRI that he did not know them and he would not sell anything to them.” The district court noted that any inferences drawn from the verbal exchange gave rise to a “mere suspicion [of] ... illegal drug activity,” not probable cause. Essentially, the district court concluded that because the exchange gave rise only to a suspicion of criminal activity, it could not contribute, along with other facts, to a finding that the Cl was reliable.

We disagree with the district court’s conclusion for two reasons. First, the district court took a hyperteehnieal view of the unsuccessful controlled buy. Second, the district court did not accord the issuing magistrate the appropriate deference.

Addressing the first reason, it appears to us that the district court considered the unsuccessful controlled buy in a hypertech-nical, rather than common-sense, manner. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (“[C]ourts should not invalidate ... warrants] by interpreting affidavits] in a hyperteehnieal, rather than a commonsense, manner.”) (quotation omitted). The district court emphasized and found “significant” the fact that the CRI “was unable to buy narcotics from the residence.” The district court concluded that any inference of criminal activity cannot “overcome the fact that in the present case there was not a successful controlled buy of narcotics.”

Viewed in a common-sense manner, Holiday’s answer did, in fact, corroborate the Cl’s report that Holiday was selling drugs out of his home. Implicit in Holiday’s answer is the conclusion that if he had known the CRI, he would have sold drugs to the CRI. Common sense would dictate that a non-drug-dealer, when answering the door and being asked for a “dub,” would not know what the visitor was talking about and would most likely tell the visitor that he or she had the wrong address. Even if the resident were not a drug dealer but knew the meaning of the term “dub,” it is highly unlikely that he would give the answer Holiday gave — that he did not know the visitor and would not sell anything to him or her.

Furthermore, the district court’s conclusion requires a controlled buy to be successful in order to corroborate an informant’s tip. As other jurisdictions have concluded, the controlled buy need not be successful in order to support a probable-cause determination. In People v. Whitfield, the undercover officer asked the defendant for “one,” and the defendant produced a large bundle of envelopes that the officer believed contained heroin. 461 Mich. 441, 607 N.W.2d 61, 64 (2000). The defendant declined to complete the transaction when the officer was unable to name a common acquaintance, but added that he would “take care of’ the officer if he returned with an acquaintance. Id. The Michigan Supreme Court concluded that taking a common-sense view of the totality of the circumstances, the defendant’s response supported the issuance of a search warrant based on probable cause. Id. at 64-65; see also Commonwealth v. Cramutola, 450 Pa.Super. 345, 676 A.2d 1214 (1996) (issuance of warrant upheld where repeated controlled buy attempts failed because defendant refused to sell because she “did not know [the purchaser],” thought the purchaser “could be a cop,” and “did not have any [drugs], but told [the purchaser] to call in advance next time”). Here, although Holiday’s answer was not identical to the Whitfield or Cra-mwtola defendants’ answers, the effect was essentially the same, i.e., Holiday would have sold the drugs if he had known the CRI. This statement corroborates the Cl’s report that appellant was selling drugs out of his home.

As to our second reason, the district court did not afford “great deference” to the issuing magistrate. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (the magistrate’s “determination of probable cause should be paid great deference by reviewing courts”) (quotation omitted). The Supreme Court has stated that “[a]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Id. Furthermore, an issuing magistrate “is entitled to draw common-sense and reasonable inferences from the facts and circumstances given.” State v. Eggler, 372 N.W.2d 12, 15 (Minn.App.1985), review denied (Minn. Sept. 19, 1985) (quotation omitted). Here, the issuing magistrate could have drawn the reasonable inference that Holiday’s answer was highly suspicious and was consistent with the response of an experienced drug dealer. The issuing magistrate is not required to draw innocent inferences; she is required to draw reasonable inferences. The district court’s evaluation of the unsuccessful controlled buy amounted to de novo review, not great deference.

B. The unsuccessful controlled buy provides independent support for a finding of probable cause.

In addition to supporting the Cl’s reliability, the unsuccessful controlled buy also provides independent support for a finding of probable cause. The district court failed to recognize that even noncriminal behavior can be given weight in the totality-of-the-circumstances test. Our supreme court has noted that probable cause requires “only a probability or substantial chance of criminal activity, not an actual showing of such activity, ... the significant fact being not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 555 (Minn.1985) (quotation omitted). Thus, “[i]nnocent or noncriminal activity can contribute to the totality of the circumstances on which a finding of probable cause is based.” McGrath, 706 N.W.2d at 543. Here, it is undisputed that Holiday did not sell drugs to the CRI and thus his conduct during the attempted buy could be categorized as “noncriminal.” However, Holiday’s answer was evasive and suspicious at best. In fact, his answer implied that he would sell drugs to the CRI if he knew the CRI. Holiday’s answer, though technically noncriminal, supports a finding of probable cause under the totality-of-the-circumstances test.

C. Holiday’s criminal record also provides support for the finding of probable cause.

The state argues that Holiday’s criminal record of controlled-substance and weapons convictions also supports the issuing magistrate’s probable-cause determination. “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). Here, the district court found that Holiday’s criminal record “at best ... is only corroborative evidence and not a sole basis for probable cause to issue a search warrant.” The state does not argue that Holiday’s criminal record alone supports a probable-cause determination; instead, the state correctly asserts that the previous convictions simply provide additional support for the magistrate’s probable-cause determination and corroborate the information provided by the Cl. See State v. Cavegn, 356 N.W.2d 671, 673 n. 1 (Minn.1984) (stating that “a defendant’s prior convictions, if relevant, may be considered on the issue of probable cause”); see also McCloskey, 453 N.W.2d at 704 (stating that even a defendant’s “relatively minor trouble with the law” is of “some” probative value in determining probable cause). We agree with the state’s assertion and conclude that Holiday’s criminal record supports the magistrate’s probable-cause determination.

DECISION

The issuing magistrate made a practical, common-sense decision based on the totality of the circumstances that there was a fair probability that contraband would be found in Holiday’s residence. The Cl’s report was based on personal, first-hand knowledge; the Cl provided detailed information that was sufficiently corroborated when the police verified Holiday’s name, nickname, physical description, residence, vehicle, and gang affiliation; the Cl’s report that Holiday was selling drugs out of his home was further corroborated by Holiday’s suspicious behavior in refusing to sell drugs to the CRI; and Holiday’s criminal record was consistent with the Cl’s allegations of criminal activity.

Even if this were a marginal or doubtful case, the Supreme Court has mandated that resolution of such cases should be “largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Additionally, this court is to afford great deference to the issuing magistrate’s determination of probable cause. Valento, 405 N.W.2d at 918. With this in mind, the search warrant application, taken as a whole, demonstrates that the issuing magistrate had a substantial basis for concluding that probable cause existed to support the search warrant. We reverse and remand for trial.

Reversed and remanded.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . The district court cites the informant’s status as a Cl, and not a CRI, as support for its conclusion that the Cl was not reliable. The district court noted that "if the Cl was a CRI the Court would have a basis to give credit to the Cl’s information.” The district court concluded that "because the information was provided by a Cl and not a CRI, the court sees no basis to credit the information provided by the Cl as reliable.” Neither party disputes the fact that the informant was a Cl and not a CRI, and the district court correctly gave weight to this fact.

      . Holiday draws our attention to the fact that the affidavit states that " 'Q' told the CRI that he did not know them and he would not sell anything to them” rather than " 'Q' told the CRI that [because ] he did not know them[,][] he would not sell anything to them” (emphasis added). Holiday notes that his statement did not contain a "because” clause, and therefore it would be unreasonable to draw a causal link between Holiday’s statement that he did not know the CRI and that he would not sell anything to the CRI. We disagree. While not a flat-out admission that Holiday was a drug dealer, it would be reasonable for the issuing judge to conclude that the two statements were linked.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Ronald James MEYER, Appellant.
    No. A06-2335.
    Court of Appeals of Minnesota.
    June 3, 2008.

      Lori Swanson, Attorney General, St. Paul, MN and Patrick Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Shakopee, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Suzanne M. Seneeal-Hill, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; PETERSON, Judge; and STONEBURNER, Judge.
   OPINION

WRIGHT, Judge.

In this appeal from a conviction of gross-misdemeanor domestic assault, appellant argues that the district court committed reversible error by (1) admitting evidence of prior domestic abuse under Minn.Stat. § 634.20 (2004); and (2) failing to instruct the jury regarding the use of such evidence. We affirm.

FACTS

On the night of June 5, 2006, security personnel at Mystic Lake Casino Hotel observed an intoxicated person, later identified as appellant Ronald Meyer, in the passenger seat of a vehicle parked under the valet canopy. After unsuccessfully attempting to ascertain from Meyer the identity of the vehicle’s missing driver, the security officers obtained information from the surveillance camera and found the driver inside the entrance near the glass doors. The driver, N.D., was advised that, because of his degree of intoxication, her boyfriend, Meyer, would not be allowed on the premises. The security officers asked N.D. to take Meyer off the property. N.D. agreed to do so and drove away from the valet area. But rather than leave the property, N.D. moved the vehicle to the top level of the parking ramp.

A surveillance camera located at the top level of the parking ramp recorded an altercation between Meyer and N.D. during which Meyer attempted to restrain N.D. by the arm. N.D. subsequently broke away from Meyer’s grasp and got out of the vehicle. Shortly thereafter, security personnel arrived at the scene and the police also were summoned. Prior Lake Police Officer John Rozga recorded a statement that he took from N.D. in his squad car at the scene. According to N.D., Meyer, who had been drinking since noon, was extremely intoxicated. During their drive to Mystic Lake Casino, Meyer had been both verbally and physically abusive toward N.D. When she arrived at the valet stand, she got out of the vehicle to escape from Meyer. After being denied entrance to the casino, she drove to the top level of the parking ramp because she was still concerned for her safety. While parked in the ramp, Meyer twisted N.D.’s arm behind her back, which caused N.D. pain. N.D. advised Officer Rozga that Meyer should be arrested for his actions.

Following the on-the-scene investigation, Meyer was arrested and charged with felony domestic assault, a violation of Minn. Stat. § 609.2242, subd. 4 (2004). The case proceeded to trial. On the first day of trial, the state amended the complaint and reduced the charge to gross-misdemeanor domestic assault, a violation of Minn.Stat. § 609.2242, subd. 2 (2004).

A Mystic Lake Casino security supervisor who witnessed the altercation on the surveillance monitor testified regarding the events that he observed. N.D. also testified, but her testimony differed from her recorded statement to Officer Rozga on the night of the incident. N.D. testified that she and Meyer did not argue on the way to Mystic Lake Casino. When she arrived at the valet stand, she left the vehicle solely to get some cash, not to get away from Meyer. When she drove to the parking ramp, she got out of the vehicle without any resistance from Meyer. Indeed, Meyer had “passed out” or was “in and out of consciousness” when she parked in the parking ramp. According to N.D.’s testimony, she wanted to let Meyer “sleep it off’ because he often became angry when he was intoxicated. To keep N.D. from leaving the car, Meyer grabbed her arm and told her not to leave because he did not want to be left alone. N.D. also denied fearing for her safety that evening or wanting to have Meyer arrested.

' The state offered under Minn. Stat. § 634.20 (2004) the following three incidents of prior criminal acts that Meyer committed against N.D.: (1) an incident in January 2006 in which Meyer became verbally and physically abusive toward N.D. and her 16-year-old son; (2) a gross-misdemeanor domestic-assault conviction from August 2001 that resulted from Meyer threatening to strike N.D. while she was driving; and (3) a misdemeanor domestic-assault conviction from November 2000 that resulted from Meyer threatening and assaulting N.D. in a vehicle, causing N.D. to escape to a convenience store.

Meyer subsequently was convicted of gross-misdemeanor domestic assault. This appeal followed.

ISSUES

I. Did the district court abuse its discretion by admitting under Minn.Stat. § 634.20 (2004) evidence of three prior incidents of domestic abuse?

II. Did the district court commit reversible error when it failed to give cautionary instructions pertaining to evidence admitted under Minn.Stat. § 634.20 either before the introduction of this evidence or as part of the final jury instructions?

ANALYSIS

I.

Evidentiary rulings ordinarily rest within the sound discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). When challenging a district court’s evidentiary ruling, an appellant must establish both that the district court abused its discretion and that, as a consequence, the appellant was prejudiced. Id.

Minn. R. Evid. 404(b) provides that “[ejvidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” This proscription is founded on the inherent danger of a fact-finder relying on such character evidence as proof that the defendant is guilty of the charged offense. State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965). But under rule 404(b), there are permissible uses for other-bad-act evidence, such as to demonstrate “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). When evidence of other bad acts, or Spreigl evidence, is to be used for these purposes:

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 686 (Minn.2006).

In cases involving domestic violence, Minn.Stat. § 634.20 (2004) governs the admissibility of a discrete category of other bad acts. Minn.Stat. § 634.20 provides as follows:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

When evidence is offered under section 634.20, it is not Spreigl evidence because it is not offered to demonstrate motive, opportunity, intent, or modus operandi. State v. McCoy, 682 N.W.2d 153, 159 (Minn.2004). Rather, this evidence is offered to demonstrate the history of the relationship between the accused and the victim of domestic abuse. Id. Section 634.20 is tailored to address the unique nature of domestic violence, which often is difficult to prosecute because of the abuser’s control over the victim. Id. at 161. Evidence is admissible under section 634.20 if (1) it is similar conduct by the accused, (2) it is perpetuated against the victim of domestic abuse or against another family or household member, and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Minn.Stat. § 634.20; McCoy, 682 N.W.2d at 159.

Despite many similarities between evidence admitted under section 634.20 and evidence admitted under rule 404(b), the stringent procedural requirements of rule 404(b) do not apply to section 634.20 evidence. State v. Bell, 719 N.W.2d 635, 638-39 (Minn.2006); State v. Meldrum, 724 N.W.2d 15, 20 (Minn.App.2006), review denied (Minn. Jan. 24, 2007). For example, the state is required neither to provide notice of the evidence nor to prove it by clear and convincing evidence. McCoy, 682 N.W.2d at 159-61. In addition, when considering its admissibility, the district court is not required to independently consider the state’s need for such evidence as “the need for section 634.20 evidence is naturally considered as part of the assessment of the probative value versus prejudicial effect of the evidence.” Bell, 719 N.W.2d at 639.

Thus, Meyer’s challenge to the admissibility of the section 634.20 evidence on the ground that it was not needed to strengthen the state’s case fails. Indeed, the state’s evidence was strong in light of the surveillance video, the testimony of the security supervisor who observed the altercation, and the impeachment of N.D.’s testimony with her on-the-scene statement given to Officer Rozga. But the Bell court expressly rejected the need-based test that Meyer advances. Id. Accordingly, the absence of an independent analysis of the state’s need for the section 634.20 evidence does not constitute error.

Meyer does not dispute that the three prior offenses against N.D. constitute the type of “similar conduct” contemplated in section 634.20. But he argues that the district court abused its discretion by admitting the evidence because its probative value was substantially outweighed by the danger of unfair prejudice. In support of his assignment of error, Meyer contends that the highly inflammatory evidence not only “painted him to be a serial abuser,” but also led the jury to find him guilty based on his past conduct rather than the evidence relating to the charged offense.

When balancing the probative value of evidence against its prejudicial impact, “unfair prejudice” is not merely damaging evidence, nor is it severely damaging evidence. Id. at 641. Evidence satisfies the unfair-prejudice test when it persuades by illegitimate means and gives one party an unfair advantage. Id.

After providing conflicting accounts of the events of June 5, N.D.’s credibility was at issue. The relationship evidence assisted the jury “by providing a context with which it could better judge the credibility of the principals in the relationship.” McCoy, 682 N.W.2d at 161. Here, the three prior acts “shed[ ] light on the relationship” between Meyer and N.D.; and they have probative value because they explained why N.D. may have testified in a manner contrary to her earlier statement. Bell, 719 N.W.2d at 639 n. 4; McCoy, 682 N.W.2d at 159. This purpose is consistent with the rationale for treating “evidence that illuminates the history of the relationship between a victim and the accused differently from other, Spreigl evidence.” See McCoy, 682 N.W.2d at 159, 161 (reasoning that history of domestic abuse may prevent victim from testifying truthfully). Moreover, Minnesota courts have recognized the inherent probative value of evidence of past acts of violence committed, as here, by the same defendant against the same victim. Bell, 719 N.W.2d at 641. Because the three prior acts of domestic violence were probative of the relationship history between Meyer and N.D. and provided a context in which to examine N.D.’s credibility, the district court did not abuse its discretion by admitting this evidence under Minn.Stat. § 634.20.

Meyer also contends that the district court erred by failing to make express findings as to the probative value versus the potential for unfair prejudice. Although the district court did not make an express finding on probative value versus prejudicial impact, the record establishes that the district court referred to the appropriate legal standard and caselaw governing the admission of section 634.20 evidence. Moreover, failing to address the balancing test on the record is not erroneous. Bell, 719 N.W.2d at 640-41 (discussing State v. Lee, 645 N.W.2d 459, 467 (Minn.2002)).

II.

Meyer also argues that the district court’s failure to give cautionary instructions specifically pertaining to the relationship evidence either before its introduction or as part of the final instructions was reversible error. But Meyer did not request such instructions, nor did he object to the final jury instructions on this ground. We, therefore, apply a plain-error analysis on review. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001). Plain error exists when the district court commits an obvious error that affects the criminal defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Plain error will be corrected on appeal “if it seriously affectfe] the fairness, integrity, or public reputation of judicial proceedings.” Meldrum, 724 N.W.2d at 20 (alteration in original) (quotations omitted).

It is a preferred practice for a district court to instruct the jury regarding the use of section 634.20 evidence both when the evidence is received and in the final jury charge. Id. at 22. But we have held that the failure to supply limiting instructions to the jury “does not automatically constitute plain error,” particularly when other evidence shows that the probative value of the other-bad-acts evidence is not outweighed by its potential for unfair prejudice. Id.

Our examination of the record makes evident that Meyer’s conviction is supported by other evidence that is much more persuasive than the relationship evidence, including the surveillance video that clearly recorded the entire assault; N.D.’s detailed description of the assault given to Officer Rozga shortly after it occurred; and the testimony of the security supervisor who witnessed the assault as it occurred. Because this evidence significantly lessened any risk of unfair prejudice from the relationship evidence, Meyer’s plain-error challenge to his conviction fails.

DECISION

The admission of evidence relating to three prior acts of domestic abuse under Minn.Stat. § 634.20 (2004) was not an abuse of discretion. And although it is a preferred practice for a district court to instruct the jury regarding the use of section 634.20 evidence both when the evidence is received and in the final jury charge, the failure to do so here does not constitute reversible error.

Affirmed.

      . Minn.Stat. § 634.20 was expressly adopted by the Minnesota Supreme Court as “a rule of evidence for the admission of evidence of similar conduct by the accused against the alleged victim of domestic abuse.” State v. McCoy, 682 N.W.2d 153, 161 (Minn.2004).

      . " 'Similar conduct’ includes, but is not limited to, evidence of domestic abuse, violation of an order for protection under section 518B.01; violation of a harassment restraining order under section 609.748; or violation of section 609.749 or 609.79, subdivision 1. 'Domestic abuse’ and 'family or household members’ have the meanings given under section 518B.01, subdivision 2.” Minn.Stat. § 634.20.


author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Danny ORTEGA, Appellant.
    No. A07-0022.
    Court of Appeals of Minnesota.
    June 3, 2008.

      Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN; and Ross E. Arneson, Blue Earth County Attorney, Mankato, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Theodora Gaitas, Assistant Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, MN; and Timothy Mulrooney, Special Assistant Public Defender, Wesley T. Graham, Henson & Efron, P.A., Minneapolis, MN, for appellant.
    Considered and decided by JOHNSON, Presiding Judge; LANSING, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

Police arrested Danny Ortega following a routine traffic stop of the car in which he was traveling as a passenger when a search revealed cocaine and marijuana. Ortega moved the district court to suppress evidence of his cocaine possession, arguing that the officer did not have reasonable suspicion to search him based on the knowledge that he possessed an amount of marijuana sufficient to support only a petty-misdemeanor offense. The district court denied the motion and found Ortega guilty of fifth-degree possession of a controlled substance. We affirm the conviction because police have probable cause to search the occupants of a vehicle for drugs upon knowledge that even a noncriminal amount of marijuana is or was recently present in the vehicle.

FACTS

Appellant Danny Ortega was a passenger in a car driven by friend Loma Sorg on August 7, 2004, when Trooper Chad Mills stopped the car for speeding and for lacking a front license plate. Mills approached. He smelled burnt marijuana emanating from the passenger compartment and noticed that Sorg appeared to be nervous. Mills learned that Sorg was not the registered owner of the vehicle and that the license plate was assigned for a car dealer’s use to move the vehicle, not for general transportation. Sorg told Mills that her ex-husband had put the transit plate on the car and that she planned to register it the following week.

Mills asked Sorg about drug use in the vehicle, and Sorg denied there had been any. When Mills asked her specifically about marijuana use, however, she was silent. Mills asked Sorg for consent to search the car and she gave it. Mills walked around to the passenger side where Ortega sat, and he again smelled burnt marijuana. He asked Ortega out of the vehicle, and he conducted a protective, pat-down search of Ortega. Mills asked Ortega if he had any weapons, and Ortega handed Mills a folded pocket knife and a small amount of marijuana.

Mills searched the vehicle, aided by Rex, his canine partner. Rex alerted on the driver’s side door, so Mills opened it and placed Rex inside. Rex then alerted on the center console and on Ortega’s seat. Mills searched the console and discovered a rolled-up dollar bill that was powdered with white residue, which field-tested to be cocaine. Mills arrested Sorg and searched Ortega more thoroughly. He found a folded dollar bill containing cocaine in Ortega’s back pocket. The state charged Ortega with fifth-degree possession of a controlled substance.

Before trial, Ortega moved to suppress the cocaine evidence. After a contested omnibus hearing, the district court determined that the stop, the vehicle search, and the personal search of Ortega were lawful. Ortega waived his right to a jury trial and stipulated to certain facts for a bench trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court found him guilty. Ortega appeals his conviction, contending that the vehicle and personal search were unlawful.

ISSUE

Did the search of Ortega’s person violate his constitutional rights?

ANALYSIS

Ortega challenges the district court’s determination that Trooper Mills had a legal basis to expand the scope of the traffic stop to search the car and Ortega. The United States and Minnesota Constitutions guarantee individuals the right to be free from unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const. art. I, § 10. If a search is unreasonable, evidence seized during the search must be suppressed. State v. Walker, 584 N.W.2d 763, 766 (Minn.1998). We review denial of a pretrial motion to suppress evidence by considering the facts to determine whether, as a matter of law, the district court erred in its decision not to suppress the evidence. State v. Kouba, 709 N.W.2d 299, 304 (Minn.App.2006). And we review de novo a district court’s determination of the legality of a limited investigative stop. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000). An investigative stop may last no longer than is necessary to effectuate the purpose of the stop, and it must relate to the circumstances under which the stop was initiated. State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002) (quotation omitted). An officer may expand a stop to investigate other suspected illegal activity if the officer has reasonable, articulable suspicion of the other activity. Id. Our supreme court has held that article I, section 10 of the Minnesota Constitution requires an officer to have that same level of suspicion to request consent to search a vehicle. State v. Fort, 660 N.W.2d 415, 419 (Minn.2003).

Ortega first challenges the consent search of Sorg’s vehicle as an expansion of the initial traffic stop that was unsupported by reasonable, articulable suspicion. Ortega’s third-party challenge to the consent search of Sorg’s vehicle may initially appear to raise a jurisdictional concern. But the United States Supreme Court has indicated that, in this context, the issue is not one of jurisdictional standing but whether a defendant had a reasonable expectation of privacy in the place searched. Minnesota v. Carter, 525 U.S. 83, 88-89, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998); Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Because this is not a jurisdictional issue and because the state has not contended that Ortega lacked a reasonable expectation of privacy in Sorg’s car, we do not address the issue.

Ortega does not dispute that the initial traffic stop was justified, and he admits that before Mills asked Sorg for consent to search the car, Mills had observed Sorg’s nervous behavior and smelled the odor of burnt marijuana coming from within the car. Although nervousness by itself does not justify asking for consent to search, State v. Sykavong, 661 N.W.2d at 278, 282 (Minn.App.2003), the odor of marijuana provides an officer with probable cause to suspect criminal activity. State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973). We therefore conclude that the trooper’s request for consent and search of Sorg’s vehicle were lawful.

Even without the incriminating evidence discovered during the vehicle search, Trooper Mills had independent, constitutionally valid justification to search Ortega. Historically, the odor of marijuana has been held to provide an officer also with probable cause to search the vehicle’s occupants. Wicklund, 295 Minn. at 405, 205 N.W.2d at 511. Ortega contends that because he had given Mills only a small amount of marijuana during the unchallenged, cursory pat-down search and because the odor of marijuana does not necessarily establish that he possessed a criminal amount of marijuana, the trooper did not have probable cause to search Ortega further. This contention relies on the notion that a statutory change made after the supreme court decided Wicklund renders Wicklund inapplicable. That notion is wrong.

When the supreme court decided Wicklund, possession of any amount of marijuana was a criminal offense. See Minn.Stat. §§ 152.09, subd. 1(2), .15, subd. 2(4) (1971); see also State v. Siirila, 292 Minn. 1, 7, 193 N.W.2d 467, 472 (Minn.1971) (noting that the legislature, in its 1971 session, had determined that possession of even a small amount of marijuana was a crime). The legislature changed that in 1989, reducing possession of a small amount of marijuana to a petty misdemeanor. Minn.Stat. § 152.027, subd. 4 (Supp.1989); 1989 Minn. Laws ch. 290, art. 3, § 37, at 1612 (repealing prior statute); 1989 Minn. Laws. ch. 290, art. 3, § 14, at 1602 (codifying new statutory change). Ortega contends that because a petty misdemeanor is not a crime, see Minnesota Statutes section 609.02, subd. 4a (2004), the trooper had no basis to suspect that he possessed a criminal quantity of drugs based only on the odor of marijuana and the noncriminal quantity disclosed.

But this court has rejected a similar argument after the statutory amendment took effect, holding that discovering even a petty-misdemeanor amount of marijuana provides probable cause to issue a warrant to search for more marijuana. State v. McGrath, 706 N.W.2d 532, 544 (Minn.App.2005), review denied (Minn. Feb. 22, 2006). The probable-cause standard is merely a test to determine objective constitutional reasonableness, and regardless of the quantity of marijuana observed, the presence of any amount logically suggests that there may be more. Because this is so whether the method of observation is sight or smell, Wicklund remains undisturbed by the statutory change. We hold that Trooper Mills had probable cause to search Ortega for a criminally significant quantity of marijuana upon smelling the order of marijuana emanating from within the vehicle, and we also conclude that he had an independent basis for probable cause when Ortega later also handed Mills the small, noncriminal amount of marijuana from his pocket. The district court did not err by determining that the trooper’s personal search of - Ortega was constitutional and by denying his motion to suppress.

DECISION

The district court appropriately denied Ortega’s motion to suppress. The trooper had probable cause to search the vehicle. He also had probable cause to search Ortega’s person independent of the evidence discovered during the consent search of the vehicle because the trooper smelled the odor of marijuana emanating from the passenger compartment and, separately, because Ortega disclosed that he had some amount of marijuana, however small, on his person.

Affirmed.