                        This opinion will be unpublished and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
                                   A15-0675

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Earl Eugene Ashmore,
                                      Appellant.

                                  Filed May 9, 2016
                                      Affirmed
                                     Ross, Judge

                             Dakota County District Court
                             File No. 19HA-CR-13-2407

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

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Klaphake,

Judge.




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                          UNPUBLISHED OPINION

ROSS, Judge

       Police executed a no-knock, nighttime search warrant at Earl Ashmore’s South St.

Paul home and found drug paraphernalia, methamphetamine, and pills of another

controlled substance. Ashmore moved the district court to suppress the evidence, arguing

that the deputies obtained the warrant by misrepresentations in the supporting affidavit.

The district court found that the allegedly false statements were not intentionally or

recklessly included, and it found Ashmore guilty of second-degree controlled substance

crime. Because the district court’s suppression-hearing findings are not clearly erroneous,

we reject Ashmore’s evidentiary challenge on appeal and affirm his conviction.

                                          FACTS

       In July 2013 Ramsey County deputy sheriff Kevin Vanderhyde provided a district

court judge with his affidavit and asked the judge to issue a no-knock, nighttime search

warrant for a duplex in South St. Paul. The accuracy of the deputy’s affidavit is the primary

subject of this appeal.

       Deputy Vanderhyde’s affidavit stated that he met with a confidential informant who

told him that Earl Ashmore and S.T. were selling methamphetamine from the home. The

affidavit stated that the informant claimed to have purchased methamphetamine from the

two within the previous 30 days. The deputy further avowed that he had met with the

informant “for the purpose of conducting multiple controlled buys of methamphetamine

from ‘Earl Ashmore’ and [S.T.],” and that he oversaw two successful controlled buys




                                             2
within the previous three weeks. The affidavit stated that, in both instances, the informant

had entered the home and purchased methamphetamine from S.T.

       Deputy Vanderhyde’s affidavit also stated that in April 2006, deputies had searched

for narcotics “at a different address involving the same two . . . individuals” and found

miscellaneous pills, packaging materials, drug scales, and ammunition. According to the

affidavit, the deputy learned that in January 2012 the Dakota County Drug Task Force had

executed a warrant at the same duplex and found narcotics, drug scales, video surveillance

equipment, and firearms, and that in May 2012 the home was the site of a drug-related

burglary. The affidavit said that police had arrested Ashmore and S.T. in July 2013 for

burglarizing a storage locker, that police found S.T. with a gun and a meth pipe, and that

charges for this incident were “pending.”

       The district court issued the search warrant as requested, based on Deputy

Vanderhyde’s affidavit. Six days later, police executed the warrant and found drug

paraphernalia, several bags of methamphetamine, and a bag containing 54 pills of

Alprazolam, a schedule IV controlled substance. Six people were inside the apartment,

including Ashmore. Ashmore admitted to police that methamphetamine in a bedroom

drawer belonged to him. The state charged him with one count of second-degree controlled

substance crime under Minnesota Statutes section 152.022, subdivision 2(a)(1) (2012).

       Ashmore moved the district court to suppress the evidence from the search and

asked it to order the state to disclose the confidential informant’s identity. The district court

conducted a hearing at which Ashmore argued that the warrant application erroneously

included the 2006 search because the affidavit did not include facts establishing that


                                               3
Ashmore had committed any crime. Deputy Vanderhyde acknowledged that his affidavit

did not indicate that Ashmore was living at the 2006 searched residence or indicate that

Ashmore “had anything to do with that incident.” He said that he included the information

to show “ongoing criminal events.” Ashmore also challenged the deputy’s affidavit

statement that he met with the informant “for the purpose of conducting multiple controlled

buys of methamphetamine from ‘Earl Ashmore’ and [S.T.]” because the affidavit did not

indicate that Ashmore was involved in the two buys. The deputy testified that he included

both names because the informant had told them that purchases were made from Ashmore

and S.T. in the past, and the deputy did not know who would be present at the controlled

buys.

        Ashmore argued too that the affidavit improperly included the statements about the

January and May 2012 incidents and the 2013 burglary. South St. Paul police officer John

Busch testified about his communication with Deputy Vanderhyde concerning those

events. Officer Busch said that he told Deputy Vanderhyde about the January 2012 incident

because knowledge of weapons and drugs would alert the deputy of the officer-safety

concerns. The officer believed that the May 2012 drug-related incident similarly

demonstrated the “level of violence that has occurred at the house.” Likewise, he explained

that the 2013 storage-locker burglary—in which police associated S.T. with a gun—

revealed officer-safety risks. The officer told Deputy Vanderhyde that charges were

“pending” because he believed that Ashmore had been arrested and released but was still

being investigated.




                                            4
       The district court found that the deputy had not intentionally or recklessly included

the allegedly false or misleading statements in the affidavit, and it held that the warrant

contained sufficient facts to establish probable cause for the nighttime search. It denied

Ashmore’s motion to suppress and to force the state to disclose the informant’s identity.

Ashmore entered a Lothenbach plea, preserving his opportunity to appeal the suppression

decision.1 The district court found Ashmore guilty of second-degree controlled substance

crime. This appeal follows.

                                     DECISION

       Ashmore asks us to reverse the district court’s denial of his motion to suppress

evidence obtained during the search, arguing that the search warrant application included

insufficient facts to establish probable cause to believe that evidence of a crime was in his

home. The United States and Minnesota Constitutions prohibit courts from issuing

warrants without probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A search

is generally constitutional only if it is executed based on a valid search warrant issued by

a neutral judge who received evidence that established probable cause. See State v.

Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014). Probable cause exists when “there is a fair

probability that contraband or evidence of a crime will be found.” Id. (quoting Illinois v.

Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). We review search warrant


1
  Although Ashmore’s plea was purportedly entered under the procedures outlined in State
v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), we recognize that Minnesota Rule of
Criminal Procedure 26.01, subdivision 4, has superseded Lothenbach and provides the
mechanism for stipulating to the prosecution’s case without waiving pretrial issues for
appeal. Minn. R. Crim. P. 26 cmt.


                                             5
decisions to determine whether, based on the totality of the circumstances, the judge had a

substantial basis to find probable cause. Id.

       Ashmore argues that without the misleading statements in the warrant application,

police lacked probable cause to believe that they would find drugs in his home. He bases

this argument first on the theory that the 2013 burglary and the prior occasions where guns

and drugs were found should be excluded because the affidavit never indicated that the

state had charged him with any crimes based on those incidents. For a search warrant to be

invalidated because of misstatements in the supporting affidavit, a defendant must show

that the officer deliberately or recklessly made false statements and that the statements

were material to the probable cause determination. State v. Andersen, 784 N.W.2d 320,

327 (Minn. 2007) (citing Franks v. Delaware, 438 U.S. 154, 171–72, 98 S. Ct. 2674, 2684

(1978)). We review for clear error a district court’s finding as to whether a warrant affiant

deliberately or recklessly made false statements. Id.

       The district court found that the affidavit did not arise from intentional untruths or

the reckless disregard for the truth. It found instead that Officer Busch told Deputy

Vanderhyde about the prior home searches and the storage-locker burglary because they

were relevant to officer safety and to the request for a no-knock, nighttime warrant.

Ashmore does not explain why we should hold those findings clearly erroneous. Because

we are in no position to second-guess the district court’s credibility determinations and the

record reveals the evidentiary basis on which the district court made its challenged

findings, we hold that the findings are not clearly erroneous and, consequently, the search

warrant is not invalidated under the Franks standard.


                                                6
       Ashmore asks us to hold that probable cause was lacking on the ground that the

warrant rested on information from an undisclosed, confidential informant, whom the

district court should have deemed unreliable. At least six factors help determine the

reliability of a confidential informant:

              (1) a first-time [civilian] 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).

       The third and fifth factors are relevant here. Police administered two controlled buys

at Ashmore’s home within the three weeks before police sought the search warrant. Both

times the informant successfully purchased methamphetamine from S.T., and this

sufficiently corroborated the informant’s statement that drugs were being sold from the

home and, consequently, supported the informant’s reliability. Ashmore argues that the

warrant affidavit was nevertheless misleading because it did not detail Ashmore’s role in

the controlled purchases. But the district court found that Deputy Vanderhyde did not

intentionally mislead the judge by avowing that he met with the informant “for the purpose

of conducting multiple controlled buys of methamphetamine from ‘Earl Ashmore’ and

[S.T.],” because the deputy had indeed intended the informant to buy drugs at the home

and, at the time, the deputy was unsure whether Ashmore or S.T. would serve as the seller.



                                             7
The affidavit specifies that S.T. (not Ashmore) turned out to be the seller. The findings

have support in the record, and again Ashmore provides no argument explaining why they

are erroneous.

       The circumstances in the warrant sufficiently established that police may find drugs

in Ashmore’s home and that the search circumstances might pose a risk to the officers. The

district court therefore did not err by denying Ashmore’s motion to suppress the evidence

that police discovered when they executed the nighttime search warrant.

       Ashmore asserts without elaboration in his pro se supplemental brief that his Sixth

Amendment right to confront his accusers required the district court to disclose the

informant’s identity. But he does not develop the argument or provide any authority in

support. See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (deeming allegations

unsupported by argument or authority to be waived). His other arguments generally charge

that the officers lied and that no evidence exists proving that the controlled buys actually

occurred. He points to several documents for support, but we do not consider them because

they are outside the record. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992),

aff’d, 504 N.W.2d 758 (Minn. 1993). We restate, our look at the record satisfies us that the

district court did not clearly err by finding that the affidavit did not arise from intentional

or reckless falsehood.

       Affirmed.




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