                        This opinion will be unpublished and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
                                   A14-2085

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Vilaysack Sirimanothay,
                                      Appellant.

                              Filed November 23, 2015
                                     Affirmed
                                  Rodenberg, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-38680

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

Michael O Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Reilly, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

       On appeal from his convictions for being a prohibited person in possession of a

firearm and fifth-degree controlled substance crime, appellant Vilaysack Sirimanothay
argues that the district court erred by (1) concluding that probable cause existed to issue a

warrant authorizing search of his home, (2) admitting appellant’s custodial statement that

he gave before police advised him of his rights under Miranda, (3) allowing inadmissible

hearsay testimony, and (4) misstating the law in instructing the jury concerning the

definition of possession. We affirm.

                                          FACTS

       On November 15, 2013, Officer Brian Grahme secured a warrant to search

appellant’s home. To secure the warrant, Officer Grahme submitted an affidavit to the

issuing judge stating that a confidential, reliable informant (CRI) told him that an

individual known to the CRI as “Sid” was selling marijuana and other illegal drugs from

his house in South Minneapolis. The CRI also told Officer Grahme that “Sid” was a

member of the Rolling 60’s Crips street gang and had been in possession of a handgun

within 30 days of the signing of the affidavit. Officer Grahme’s research of the house

address led him to believe that appellant was the individual described by the CRI. The

CRI then confirmed that a photo of appellant shown him by Officer Grahme was of the

individual he knew as “Sid.” Less than 72 hours before securing the warrant, Officer

Grahme met again with the CRI, who stated that he was in appellant’s house and

observed a large quantity of marijuana packaged for sale.

       On November 21, 2013, Minneapolis police officers, assisted by the SWAT team,

executed the search warrant. The SWAT team rammed the front door to enter and used a

flash-bang diversionary device. Officer Matthew Kaminski testified that, upon entering

the house, he and his partner went downstairs where they found appellant lying on the


                                             2
floor in the hallway outside the southeast bedroom of the house, with his hands out. Two

other men were in the house as well. The officers found S.Y. hiding in a bed in a room

on the lower level of the house. The officers found V.S. on the upper level near the

kitchen. The SWAT team placed flex-cuffs on each man. The flex-cuffs were later

replaced with regular handcuffs.

       After the SWAT team cleared the house, the investigators began searching for

contraband. Officer Ricardo Muro testified that he searched the southeast bedroom, not

knowing at the time whose bedroom it was. Officer Muro found a gun case containing a

9 mm handgun and two fully-loaded magazines.            He also found a coffee canister

containing marijuana and a digital scale in the sleeve of a jacket in the closet. Officer

Muro found numerous photographs of appellant in the room, including on the wall, on

top of the dresser, and in the dresser drawers. Additionally, he found a prescription bottle

with appellant’s name on it and seven prescriptions written for appellant.

       Officer Muro testified that when he took the photographs and jacket upstairs,

appellant asked Officer Muro, “What are you doing with my coat? Where are you taking

my pictures?” He testified that he believed appellant was the sole occupant of the

southeast bedroom based on his search of the room and the questions spontaneously

asked by appellant.

       Officer Grahme testified that he confirmed that appellant was the sole occupant of

the southeast bedroom by asking appellant and the other two occupants of the house

which rooms were theirs. Appellant’s trial counsel raised a hearsay objection to Officer

Grahme’s testimony. The district court sustained the hearsay objection to the state’s


                                             3
questions “Which bedroom did [S.Y.] tell you was his?” and “Which bedroom did [V.S.]

tell you was his?” The district court overruled appellant’s hearsay objection to the state’s

question “And did either of the other two individuals [i.e. the occupants other than

appellant] claim ownership of [the southeast bedroom]?” Officer Grahme testified that

neither one claimed that room, and he further testified that he believed appellant was the

occupant of the southeast bedroom based on its contents.

       The state charged appellant with being a prohibited person in possession of a

firearm in violation of Minn. Stat. §§ 624.713, subds. 1(2), 2(b) (2012) and 609.11

(2012), and fifth-degree controlled substance crime in violation of Minn. Stat. § 152.025,

subd. 2(a)(1) (2012). At trial, appellant stipulated that he was ineligible to possess a

firearm. The district court instructed the jury on actual and constructive possession for

both counts. The jury found appellant guilty of both counts. The district court sentenced

appellant to 60 months in prison on the firearm-possession count and 19 months in prison

on the marijuana-possession count, to be served concurrently. This appeal followed.

                                     DECISION

I.     Probable cause for search warrant

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

evidence obtained from the search of his house, arguing that the issuing judge lacked a

substantial basis for concluding that probable cause existed to issue the warrant.

       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


                                             4
issued by a neutral and detached magistrate after a finding of probable cause. See Minn.

Stat. § 626.08 (2012); State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014).

       When reviewing whether there was probable cause to issue a warrant, we “afford

the district court’s determination great deference.” State v. Rochefort, 631 N.W.2d 802,

804 (Minn. 2001). We limit our review to considering whether the issuing judge had a

substantial basis for determining that probable cause existed to support the warrant.

Yarbrough, 841 N.W.2d at 623. Our substantial-basis determination is based on an

examination of the totality of the circumstances. State v. Holiday, 749 N.W.2d 833, 839

(Minn. App. 2008).

              The task of the issuing [judge] is simply to make a practical,
              common-sense decision whether, given all the circumstances
              set forth in the affidavit before [the judge], 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 (1983)). “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.     Veracity of the CRI

       The search warrant in this case was supported by information that Officer Grahme

obtained from the CRI. There are multiple ways in which an affidavit can show a CRI’s

veracity:   (1) by showing that the informant has, in the past, provided police with

accurate information; (2) “by showing that in the particular case the circumstances



                                             5
strongly suggest that the information is reliable”; and (3) by showing corroboration of the

details of the tip demonstrating that the informant “is telling the truth on this occasion.”

State v. Siegfried, 274 N.W.2d 113, 114-15 (Minn. 1978).

       “[A]n informant who has given reliable information in the past is likely also

currently reliable.” State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004). An affidavit

sufficiently states that an informant has previously been reliable when it includes “a

simple statement that the informant has been reliable in the past.” Id. This is because the

statement “indicates that the informant had provided accurate information to the police in

the past and thus gives the magistrate reason to credit the informant’s story.”          Id.

(quotations omitted).

       Officer Grahme stated that he had “worked with this CRI for a number of years on

both state and federal cases.” He also stated that the CRI’s information had aided

previous investigations, including leading police to the discovery of narcotics and

firearms. These statements from Officer Grahme were sufficient to establish the CRI’s

veracity.

       B.     Basis and staleness of CRI’s knowledge

       Appellant argues that the affidavit failed to establish a sufficient temporal nexus

between when the CRI observed appellant’s marijuana possession and the issuance of the

search warrant. “[T]he freshness of the [inculpatory] information . . . is an important

factor for determining the probability that contraband or evidence of a crime will be

found in a particular place,” State v. Carter, 697 N.W.2d 199, 206 (Minn. 2005)

(quotation omitted), because a search-warrant affidavit must include evidence of “facts so


                                             6
closely related to the time of the issue of the warrant as to justify a finding of probable

cause at that time,” State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (quotation

omitted). But we have noted:

              Courts have refused to set arbitrary time limits or to establish
              a rigid formula in making the determination of whether the
              probable cause underlying a search warrant has grown stale.
              Instead, the question must be determined by the
              circumstances of each case. The approach should be one of
              flexibility and common sense.

State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005) (quotations and citations

omitted), review denied (Minn. Mar. 29, 2005).         One factor in whether there is a

sufficient temporal nexus is whether there is “an indication of ongoing criminal activity.”

State v. Ward, 580 N.W.2d 67, 72 (Minn. App. 1998). In those situations, “the passage

of time is less significant.” Souto, 578 N.W.2d at 750. Courts considered the ongoing

nature of drug dealing, which can extend the amount of time that information is useful for

establishing probable cause. See U.S. v. Carnahan, 684 F.3d 732, 736 (8th Cir. 2012)

(stating that “in investigations of ongoing narcotics operations, intervals of weeks or

months between the last described act and the application for a warrant does not

necessarily make the information stale” (quotation omitted)).

       Here, the search warrant was based on the CRI’s personal observations of

marijuana packaging and sales in appellant’s home.          The affidavit lacks precision

concerning when the CRI had been inside appellant’s house “and observed a large

quantity of marijuana that was packaged for sale.”        One reasonable reading of the

affidavit is that Officer Grahme met with the CRI “[w]ithin the past 72 hours,” but that



                                             7
the CRI had not necessarily been to the house for some time. Another reasonable reading

of the affidavit is that the CRI had been inside the house and then met Officer Grahme all

“[w]ithin the past 72 hours.”

       Under the totality-of-the-circumstances, the facts reasonably support the issuing

judge’s implicit inference that: (1) the CRI had “recently” received information that

appellant was selling marijuana from the house; (2) within 72 hours before the issuance

of the warrant, appellant met with the CRI, who had personally observed appellant selling

marijuana in his house; and (3) the CRI noted that there was a large quantity of marijuana

that was packaged for sale, indicative of an ongoing drug-dealing enterprise. In all, these

facts support the conclusion that the drug-related activity was ongoing, which extended

the freshness of the information that the CRI provided to Officer Grahme.

       As stated, we conduct a substantial-basis, deferential review of the issuing judge’s

flexible and common-sense decision. Using this approach and taking into account the

preference accorded warrants, we conclude that the information on which the issuing

judge based the search warrant was sufficiently fresh. The district court did not err in

concluding that the information in the affidavit was not stale.

       Appellant also argues that there was not a sufficient basis of knowledge about

appellant’s possession of a firearm, and that the affidavit “failed to establish a nexus

between the residence and the firearm.” The affidavit states that the CRI personally

observed appellant selling marijuana from the house, but it lacks that same clarity

concerning firearm possession. We conclude that appellant’s arguments for suppression




                                             8
because of the imprecision of the affidavit concerning the firearm are without merit for

two reasons.

       First, the gun was included in the search warrant primarily for the purpose of

securing a no-knock, unannounced-entry search warrant. Under Minnesota law, “police

must have a reasonable suspicion that knocking and announcing their presence, under the

particular circumstances, would be dangerous or futile.” Garza v. State, 632 N.W.2d

633, 638 (Minn. 2001) (quotation omitted). To secure authorization for an unannounced

entry, the affiant must present facts supporting such a reasonable suspicion to the issuing

judge. Id. Officer Grahme included information that the CRI identified appellant as a

gang member and said that appellant “ha[d] been seen in possession of a handgun within

the past 30 days.”    Using a flexible and common-sense approach to reviewing the

affidavit, the issuing judge would have viewed those facts as creating a reasonable

suspicion that knocking-and-announcing would have been dangerous.

       Second, and even beyond supporting the unannounced-entry request, the affidavit

provided sufficient information to establish probable cause that the police would find

contraband at appellant’s house regardless of the reference to the firearm. The CRI’s

basis of knowledge and veracity concerning the marijuana was strong.             Under the

totality-of-the-circumstances analysis, that alone would have been sufficient to issue the

search warrant. The information about the firearm was not necessary to the issuance of

the warrant, the primary reason for which was to search for drugs.

       The district court did not err in concluding that there was sufficient probable cause

to support the issuance of the search warrant.


                                             9
II.       Miranda issues

          Appellant next argues that the district court erred by admitting his statement, made

before police read him the Miranda warning, that he occupied the southeast bedroom. He

argues that he was in custody when police asked the three occupants which rooms were

theirs.     We review the district court’s factual findings for clear error, and we

independently review the district court’s legal conclusions and the need for a Miranda

warning. State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012).

          “On-the-scene questioning, where the officers are simply trying to get a

preliminary explanation of a confusing situation, does not require a Miranda warning.”

State v. Walsh, 495 N.W.2d 602, 604-05 (Minn. 1993) (citations omitted). But once a

person is in custody, the police must give a Miranda warning before questioning. State v.

Sterling, 834 N.W.2d 162, 168 (Minn. 2014). Courts use a totality-of-the-circumstances

analysis to determine whether the facts establish that a reasonable person in the same

situation would have believed he was restrained to the degree associated with a formal

arrest. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984). “The test

is not whether a reasonable person would believe he or she was not free to leave.” State

v. Champion, 533 N.W.2d 40, 43 (Minn. 1995). “[T]he only relevant inquiry is how a

reasonable person in the suspect’s position would have understood the situation.” Id.

(citing Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151). Additionally, a warrant to search

for contraband founded on probable cause “implicitly carries with it the limited authority

to detain the occupants of the premises while a proper search is conducted.” Michigan v.

Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595 (1981).


                                               10
      A.     General on-the-scene questioning

      Appellant argues that this case is similar to Walsh, in which the Minnesota

Supreme Court concluded that the defendant was in custody when police handcuffed the

defendant to a stair railing after responding to a call about an assault, discovered the

victim’s dead body, and questioned the defendant without reading him the Miranda

warning. 495 N.W. 2d at 603. But Walsh also held that handcuffing, without more, did

not mean a person was in custody. Id. at 605. Walsh is also distinguishable on its facts

because the defendant in that case was the only person present in the house when the

police arrived. Id. at 603. And the Minnesota Supreme Court held that the situation in

Walsh only became custodial once the police discovered a dead body, restrained the

defendant even more, and began questioning him more extensively. Id. at 605. At that

point, the supreme court noted that the defendant would reasonably have assumed that he

was under arrest. Id. The supreme court held that the questioning before that point was

noncustodial. Id.

      Here, Officer Grahme’s initial question about which room belonged to the

appellant is general “on-the-scene questioning . . . to get a preliminary explanation of a

confusing situation.” Id. at 604-05. Unlike Walsh, there were three occupants in the

house when the police executed the search warrant. The other two occupants were

restrained in like manner as appellant—first with flex-cuffs, then with regular handcuffs.

The police discovered only one of the occupants in a bedroom. The other two occupants

were in common spaces. Officer Grahme asked appellant and the other occupants which

rooms were theirs before Officer Muro discovered the firearm in the southeast bedroom.


                                           11
These facts support the district court’s conclusion that appellant was neither in custody,

nor interrogated, and that instead, Officer Grahme’s question was primarily an effort to

sort out a confusing situation.

       B.     Harmless error

       Even if appellant was in custody and interrogated, any error in the admission of

his statement that the room was his was harmless. The admission of a statement in

violation of Miranda rights warrants a new trial unless the error is harmless beyond a

reasonable doubt. Sterling, 834 N.W.2d at 171 (citing State v. Davis, 820 N.W.2d 525,

533 (Minn. 2012) (quotation omitted)). “An error is harmless beyond a reasonable doubt

if the jury’s verdict was surely unattributable to the error.” Id. To determine whether a

guilty verdict was surely unattributable to the error, we examine: (1) the manner in

which the evidence was presented, (2) whether it was highly persuasive, (3) whether it

was used in closing argument, and (4) whether it was effectively countered by the

defendant. Id. (citing State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn. 2005)).

       Here, the other evidence of occupancy of the southeast bedroom—including the

prescriptions, photographs, men’s clothing, and appellant’s questions to Officer Muro—

was sufficient for the jury to conclude that appellant occupied the southeast bedroom.

Appellant’s unprompted questions are, in our view, the most compelling evidence of

appellant’s occupancy of that bedroom. Appellant does not dispute that he asked Officer

Muro, “What are you doing with my coat? Where are you taking my pictures?” The jury

doubtless viewed appellant’s unprompted questions as an admission that the room Officer

Muro searched was appellant’s. Along with appellant’s possessions that the police found


                                           12
in the southeast bedroom, these unprompted questions convince us that the jury’s verdict

was surely unattributable to admission of appellant’s statement about occupancy of the

southeast bedroom.

       We conclude that appellant was neither in custody nor interrogated when Officer

Grahme asked him which room was his, and that admission of his statement, even if

deemed error, was harmless beyond a reasonable doubt.

III.   Hearsay

       Appellant next argues that the district court erred by allowing Officer Grahme to

present hearsay testimony that neither S.Y. nor V.S. claimed occupancy of the southeast

bedroom. We will reverse a district court’s evidentiary rulings only if it is demonstrated

that the district court both abused its discretion and that prejudice resulted. State v. Amos,

658 N.W.2d 201, 203 (Minn. 2003).

       Assuming for the sake of argument that the statements were inadmissible hearsay,

we consider whether any error substantially influenced the jury’s decision. Hennepin

Cty. v. Perry, 561 N.W.2d 889, 893 (Minn. 1997). In making that determination, the

strength of the evidence is one factor that we consider. State v. Carlson, 268 N.W.2d

553, 561 (Minn. 1978). We also consider whether the alleged error “went to the critical

issue at trial.” State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002).

       Here, the statements went to a critical issue in the trial:        whether appellant

constructively possessed the contraband via his occupancy of the southeast bedroom.

Appellant argues that “the state’s case rested heavily on [the other two occupants’]

out-of-court statements that the southeast bedroom did not belong to them.”               But


                                             13
appellant’s argument ignores that Officer Grahme’s testimony about those statements was

brief, and that in closing arguments, the state focused on the entirety of the circumstantial

evidence: the photographs of appellant and his prescriptions in the southeast bedroom,

his physical proximity to that room when police entered, and his unprompted questions to

Officer Muro about his coat and pictures that the officer had seized from that room. As

discussed, appellant’s unprompted questions were strong indicators that appellant not

only occupied the southeast bedroom where police found the contraband, but also owned

the coat in which the marijuana was found. In light of this persuasive evidence that

appellant occupied the southeast bedroom, Officer Grahme’s brief hearsay testimony did

not substantially influence the jury’s verdict.

IV.    Jury instructions

       Appellant’s final argument is that the district court materially misstated the law in

instructing the jury on possession. We review a district court’s jury instructions for abuse

of discretion. State v. Koppi, 798 N.W.2d 358, 361 (Minn. 2011). A district court has

“considerable latitude” in selecting the language for jury instructions. State v. Gatson,

801 N.W.2d 134, 147 (Minn. 2011). “An instruction is in error if it materially misstates

the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).

       Appellant argues that the district court erred by departing from the standard jury

instruction concerning possession found in 10A Minn. Dist. Judges Ass’n, Minnesota

Practice – Jury Instruction Guides, Criminal, CRIMJIG 32.42 (5th ed.). But district

courts are not required to use the model instructions. State v. Smith, 674 N.W.2d 398,




                                              14
400 (Minn. 2004). The issue is whether the district court’s jury instructions materially

misstated the law, and, if so, whether the error prejudiced appellant.

         A person is guilty of illegal possession of a firearm if he is prohibited from

possessing a firearm and is found in either actual or constructive possession of one.

Minn. Stat. § 624.713, subd. 1 (2012); see also State v. Salyers, 858 N.W.2d 156, 159

(Minn. 2015) (“Possession of a firearm may be proved through actual or constructive

possession.”). A person is guilty of illegal possession of marijuana if he is found to be

unlawfully exercising either actual or constructive possession of marijuana. Minn. Stat.

§ 152.025, subd. 2(a)(1).

         The jury instruction in question on appeal, with the challenged portion italicized,

reads:

               The law recognizes two kinds of possession:               actual
               possession and constructive possession. A person is in actual
               possession of a thing if he has direct physical control over the
               thing at a given time. A person is in constructive possession
               of a thing if the thing was in a place under his exclusive
               control to which other people did not normally have access,
               or if found in a place to which others had access, he
               knowingly exercised dominion and control over it. You may
               find that the element of possession, as that term is used in
               these instructions, is present if you find beyond a reasonable
               doubt that defendant had actual or constructive possession.

(emphasis added)

         Appellant argues that the language “at a given time” in the actual possession

portion of the instruction has the effect of removing the requirement that the state prove

appellant physically possessed the contraband at the time of arrest. Appellant argues that




                                             15
the instruction allowed the jury to find him guilty for having had “physical control” over

the contraband at any time, and that the actual-possession instruction confused the jury.

       Appellant’s arguments concerning this instruction ignore that this case involves

only constructive possession. The state concedes that it produced no evidence of actual

possession of the firearm or marijuana on November 21, 2013. At trial, neither party

argued a theory of actual possession. Based on a thorough review of the record, it is clear

to us that both parties viewed and presented this case as one of constructive possession

only. The state told the jury in summation: “This is not an actual possession case, this is

a constructive possession one . . . . [Constructive possession] arises when you don’t have

the things on you, but there is, nonetheless, evidence that you possessed it.” Contrary to

appellant’s argument, the jury would not have been confused about the actual-possession

instruction because neither party argued about actual possession. It is not clear to us why

the actual-possession instruction was given at all. But under the theory and facts of the

case, the most that can be said of the actual-possession instruction is that it likely was

surplus.

       Because the state’s case relied exclusively on constructive possession, we consider

whether the constructive-possession instruction was a material misstatement of the law.

In Salyers, the Minnesota Supreme Court noted that “jury instructions regarding

constructive possession are improper when they emphasize one factor to the exclusion of

other relevant factors.” 858 N.W.2d at 159. The supreme court also reiterated that the

purpose of the constructive-possession doctrine:




                                            16
                is to include within the possession statute those cases where
                the state cannot prove actual or physical possession at the
                time of arrest but where the inference is strong that the
                defendant at one time physically possessed the [item] and did
                not abandon his possessory interest in the [item] but rather
                continued to exercise dominion and control over it up to the
                time of the arrest.

Id. The supreme court highlighted cases in which constructive-possession instructions

were improper because they discounted various relevant factors that a jury should

consider in finding that a defendant had constructive possession of an item, instead

emphasizing a single factor. Id. (citing State v. Olson, 482 N.W.2d 212, 215 (Minn.

1992) (holding that an instruction was improper where it failed to present the various

relevant factors for determining constructive possession in a balanced fashion)).

       Here, appellant never challenged the constructive-possession instruction. And the

district court gave a correct instruction. That instruction effectively paraphrased the

purpose of the constructive-possession doctrine. The instruction did not emphasize any

single factor that would permit the jury to find constructive possession.           Most

importantly, the evidence supports the jury’s finding that appellant constructively

possessed the marijuana and firearm.       In sum, the unchallenged jury instruction on

constructive possession was not a misstatement of the law, much less a material

misstatement.

       Affirmed.




                                             17
