                         This opinion will be unpublished and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
                                    A14-0419

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                               Charles Edward Erdmann,
                                       Appellant.

                                Filed February 2, 2015
                                       Affirmed
                                   Halbrooks, Judge


                             Dakota County District Court
                             File No. 19HA-CR-13-2133

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

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Joel O’Malley, Special Assistant
Public Defender, Dorsey & Whitney, LLP, Minneapolis, Minnesota (for appellant)

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

Bjorkman, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Following his conviction of first-degree controlled-substance crime, appellant

argues that the district court erred by denying his suppression motion because (1) there
was not a substantial basis for ruling that the search warrant was supported by probable

cause and (2) the warrant was stale when the search was executed. We affirm.

                                          FACTS

       In March 2013, the Dakota County Drug Task Force received information that

appellant Charles Edward Erdmann was trafficking methamphetamine from a specified

residential address in Lakeville. In May, Lakeville police officers identified the residents

of the address as L.D. and her two minor sons and conducted surveillance, through which

they observed a variety of vehicles associated with the residence. Officers learned that

Erdmann had multiple recent arrests in Minnesota and Wisconsin for possession of

controlled substances and paraphernalia, while L.D. had no criminal history. In June

2013, officers conducted a garbage pull at the residence and found three plastic baggies

sealed together in a larger plastic baggie. One of the baggies contained a white powdery

residue that tested positive for amphetamines. The garbage also contained a “prescription

document” for one of the minor children, but the search-warrant application provided no

further detail such as the medication prescribed or the date of the prescription.

       On Sunday, June 30, 2013, an investigator applied for a warrant to search the

residence based on an affidavit that recounted these events. A search warrant was issued

that day. On Tuesday, July 9, 2013, the drug task force executed the search warrant,

seizing 90 grams of methamphetamine and 85 pills identified as scheduled controlled

substances.   The state charged Erdmann with one count of first-degree controlled-

substance crime (aid and abet), in violation of Minn. Stat. § 152.021, subd. 2(a)(1)

(2012). The district court denied Erdmann’s motion to suppress evidence seized in the


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search. Erdmann proceeded to a bench trial on stipulated facts under Minn. R. Crim.

P. 26.01, subd. 3, and the district court found Erdmann guilty. Erdmann now appeals.

                                     DECISION

                                             I.

       Erdmann argues that there was not a substantial basis for a finding of probable

cause and that therefore the district court erred in denying his suppression motion. We

disagree. In addition to the amphetamine residue found in the garbage, the search-

warrant application points to Erdmann’s arrest record for similar crimes, information

received from an unidentified source that Erdmann was trafficking methamphetamine

from the house, and surveillance evidence.

       Whether probable cause exists to issue a search warrant is determined under a

“totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,

2332 (1983). “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). An

issuing judge “is entitled to draw common-sense and reasonable inferences from the facts

and circumstances given.” State v. Holiday, 749 N.W.2d 833, 843 (Minn. App. 2008)

(quotation omitted). The issuing judge is “to make a practical, commonsense decision

whether . . . there is a fair probability that contraband or evidence of a crime will be




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found in a particular place.”    State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995)

(quotation omitted).

      When a warrant is issued, “our review is limited to ensuring that the issuing judge

had a substantial basis for concluding that probable cause existed.” State v. Harris, 589

N.W.2d 782, 788 (Minn. 1999) (quotation omitted). We give “great deference” to the

issuing judge’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804

(Minn. 2001). “To avoid discouraging police from seeking review by a neutral and

detached magistrate, doubtful or marginal cases are resolved in favor of upholding the

warrant.” State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied

(Minn. Nov. 16, 2004).

      Contraband seized from garbage left for collection “can provide an independent

and substantial basis for a probable-cause determination.” State v. McGrath, 706 N.W.2d

532, 543 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). We concluded in

McGrath that marijuana residue found in a garbage pull was sufficient to establish

probable cause to search the residence because “the test is not whether the residual

amounts of marijuana are criminal,” but “whether those amounts support a reasonable

expectation that more marijuana or other evidence of criminal activity will be found on

the premises.” Id. at 544. We have also concluded that a spoon with burn marks and a

plastic bag containing cocaine residue found in the garbage were sufficient to establish

probable cause for a search warrant for the house. State v. Papadakis, 643 N.W.2d 349,

356 (Minn. App. 2002); see also State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984)

(noting that marijuana residue in garbage supported a search warrant for the house).


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       Erdmann downplays the drug evidence found in the garbage pull, suggesting that

the white powdery residue could be connected with the “prescription document.” But the

question is not whether the residual amounts of amphetamine are necessarily criminal.

Rather, the question is whether amphetamine residue in a baggie found in the garbage

supports a conclusion that “there is a fair probability that contraband or evidence of a

crime will be found” in the house. See Zanter, 535 N.W.2d at 633 (quotation omitted).

       Erdmann also challenges the lack of specificity on the timing of the garbage pull.

But it is settled law that omission of time information, while discouraged, is not fatal

under the totality-of-the-circumstances test. Harris, 589 N.W.2d at 789. Here, the

affidavit provides only that the garbage pull occurred in June 2013. But because the

affidavit is laid out generally in chronological order, with the garbage pull near the end,

the issuing judge could have reasonably concluded that the garbage pull occurred shortly

before the June 30 search-warrant application. And even if the garbage pull occurred

earlier in June, the ongoing nature of the crime under investigation could support a

conclusion that the drug evidence was not stale. See State v. Velishek, 410 N.W.2d 893,

896-97 (Minn. App. 1987) (concluding that evidence of a marijuana grow four to six

weeks earlier “was not so stale that the magistrate could not conclude that the marijuana

would be present”).

       The affidavit also includes Erdmann’s history of related arrests.

              A person’s criminal record is among the circumstances a
              judge may consider when determining whether probable
              cause exists for a search warrant. Courts also occasionally
              consider arrests not resulting in conviction, as when the arrest



                                             5
              involves a crime of the same general nature as the one which
              the warrant is seeking to uncover.

State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005) (citation and quotation omitted).

Here, Erdmann’s previous arrests were of the same general nature as the crime under

investigation, and some were recent enough that judicial resolution was still pending.

The issuing judge could reasonably give these arrests some weight in evaluating the

totality of the circumstances.

       The question before us is not whether probable cause existed that Erdmann was

trafficking methamphetamine from the house, but whether the issuing judge properly

concluded under the totality of the circumstances that there was a fair probability that

contraband or evidence of a crime would be found there. In light of the great deference

we give to the issuing judge and the preference for warrants, we conclude that under the

totality of the circumstances, the search-warrant application here provides a substantial

basis to conclude that probable cause existed.

                                            II.

       Erdmann argues the district court erred in not suppressing the evidence found

during the search because the information supporting probable cause for the search

warrant was stale by the time the warrant was executed. A delay in executing a search

warrant raises statutory and constitutional issues. See State v. Yaritz, 287 N.W.2d 13, 15-

16 (Minn. 1979) (reviewing the delay for statutory and constitutional violations).

Minnesota law provides that, absent circumstances not present here, “a search warrant

must be executed and returned to the court which issued it within ten days after its date.”



                                            6
Minn. Stat. § 626.15(a) (2012). Here, the search warrant was issued on June 30 and

executed on July 9 and therefore complies with the statutory deadline.

       “‘Whether a delay in executing a search warrant is unconstitutional depends on

whether the probable cause recited in the affidavit still exists at the time of execution of

the warrant—that is, whether it is still likely that the items sought will be found in the

place to be searched.’” State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005) (quoting

Yaritz, 287 N.W.2d at 16), review denied (Minn. Mar. 29, 2005). Minnesota courts have

declined to set arbitrary time limits in determining whether the probable cause underlying

a search warrant has grown stale. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App.

1984), review denied (Minn. Jan. 14, 1985). “Instead, the question must be determined

by the circumstances of each case.” Id. The “approach should be one of flexibility and

common sense.” Id. “Relevant circumstances include the character of the crime, the

character of the criminal, the character of the thing to be seized, and the character of the

place to be searched.” King, 690 N.W.2d at 401. Here, the investigation centered on

methamphetamine trafficking, an activity of an ongoing, protracted nature. Particularly

in light of Erdmann’s recent arrest record, we conclude that the search warrant was not

unconstitutionally stale when it was issued on June 30 and executed on July 9.

       Affirmed.




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