                        This opinion will be unpublished and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
                                   A14-1266

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                 Willie Ester Waters,
                                      Appellant.

                                Filed April 20, 2015
                          Affirmed in part and remanded
                                 Rodenberg, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-3255

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Smith, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Willie Ester Waters challenges the district court’s conclusion that a

warrant authorizing the search of his person, vehicle, and residence is supported by
probable cause. He also argues that the district court erred in denying a Franks hearing

on the question of whether police would have sought the search warrant regardless of

police awareness of the results of an earlier illegal search. We affirm in part and remand.

                                         FACTS

       On January 25, 2013, Minneapolis Police Officer Scott Creighton applied for a

warrant to search the person, vehicle, and residence of appellant.         The supporting

affidavit includes personal observations from a confidential reliable informant (CRI), and

Officer Creighton’s investigation and personal observations. The affidavit states that

“[w]ithin the last 72 hours,” Officer Creighton was contacted by a CRI concerning

“narcotics dealing” at appellant’s residence. The CRI informed Officer Creighton that “a

black male seller nicknamed ‘Coot’ lives at this address and sells and delivers large

amounts of powder cocaine and crack cocaine,” using a red Chevy Blazer “to pick-up and

deliver crack.” The affidavit also states that the CRI has assisted the police department

with several past drug investigations, resulting in arrests and convictions for narcotics

and weapons offenses. The affidavit further states that, during the meeting with Officer

Creighton, the CRI positively identified appellant as “Coot” from a photograph. The CRI

also told the officer that he was at appellant’s residence and “observed the seller with a

large amount of crack cocaine packaged for sale.”

       With this information from the CRI, Officer Creighton investigated further. He

determined that “Coot” was appellant’s nickname. Appellant’s address matched the

address given by the CRI, and appellant was the owner of a red Chevy Blazer with the

license plate number provided by the CRI. Officer Creighton also surveilled appellant’s


                                             2
house during the daytime and saw a red Chevy Blazer parked in front of the house and

viewed “parties enter and leave this address.” Officer Creighton retrieved information

from a law enforcement data system indicating that a search warrant was executed on

appellant at the same residence on April 8, 2010, resulting in the seizure of 81.5 grams of

crack cocaine and in appellant’s arrest.           The evidence, however, was ultimately

suppressed by the district court in the earlier case.

       A district court judge granted the search warrant and it was executed on

January 29, 2013. Appellant was arrested and searched. During the search, officers

found $1,362 in cash and a plastic bag containing what was later determined to be

cocaine. Officer Creighton and other police officers also searched appellant’s residence

as authorized by the warrant and found an additional $7,000 in cash hidden in a boot.

The state charged appellant with one count of third-degree controlled substance

possession in violation of Minn. Stat. § 152.023, subd. 2(a)(1) (2012), later amended to

fifth-degree controlled substance possession in violation of Minn. Stat. § 152.025, subd.

2(b)(1) (2012).1

       Appellant moved the district court to suppress the evidence obtained in the search,

or, alternatively, to hold an evidentiary hearing to determine whether omissions in the

search warrant were deliberate or were omitted with reckless disregard for the truth.

Appellant argued to the district court that the CRI’s veracity and basis of knowledge were

not adequately established and that Officer Creighton omitted evidence of another search

1
  The seized substance was tested by the Bureau of Criminal Apprehension (BCA). The
BCA determined the weight to be 2.6 grams, rather than the 3.1 grams originally alleged
in the complaint.

                                               3
warrant that was executed on appellant’s residence and person on April 29, 2010.

Appellant argued that this search was not mentioned in the January 25 warrant affidavit

because only plastic sandwich bags and a digital scale were seized, providing “absolutely

no evidence of wrongdoing on [appellant’s] part.”

       The district court denied the suppression motion.             Appellant moved for

reconsideration, which was also denied. In its order denying appellant’s suppression

motion, the district court also made several findings related to the CRI, including that the

officer-affiant for the April 29, 2010 warrant “relied on tips from the same CRI cited in

[the] affidavit for the April 8, 2010 search warrant.” Specifically, finding 16 states that,

Officer Creighton’s affidavit relied on tips from the same CRI cited by both officer-

affiants in the April 8 and April 29 warrant affidavits. The state concedes on appeal that

this finding is not supported by the record and is clearly erroneous.

       Appellant waived his right to a jury trial and agreed to a stipulated-facts trial under

Minn. R. Crim. P. 26.01, subd. 3(a). The district court found appellant guilty and

sentenced him to 13 months in prison, the execution of which was stayed for four years

on various conditions of probation. This appeal followed.

                                      DECISION

       Appellant raises three issues on appeal. He first challenges the January 2013

search warrant as not supported by probable cause, because it improperly relied on

evidence obtained in a prior illegal search and improperly omitted exculpatory evidence

resulting from another earlier search. Second, appellant argues that the district court

erred in denying his motion for a hearing to determine whether the omissions in Officer


                                              4
Creighton’s warrant application were deliberate or made with reckless disregard for the

truth. Third, appellant argues that the district court erred in failing to properly consider

whether police would have sought the January 2013 warrant independent of police

awareness of the earlier searches. We address each issue in turn.

                                            I.

       Appellant argues that the January 25, 2013 search warrant was issued without

probable cause as the supporting affidavit inappropriately refers to an earlier search

resulting in illegally seized evidence and omits reference to a second search resulting in

exculpatory or innocuous evidence. Appellant also challenges the veracity and basis of

knowledge of the CRI.

       The United States and Minnesota Constitutions protect citizens from unreasonable

searches and seizures and provide that no warrant shall issue without a showing of

probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Probable cause exists

when 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)). A search warrant’s issuing

magistrate should make “a practical, common-sense decision whether, given all the

circumstances before him [or her], including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information,” probable cause exists to support the search

warrant. Wiley, 366 N.W.2d at 268.

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

‘we review the district court’s factual findings under a clearly erroneous standard and the


                                             5
district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). We review

whether there is a “substantial basis to conclude that probable cause existed,” State v.

Bradford, 618 N.W.2d 782, 794 (Minn. 2000), and, under the totality of the

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

Wiley, 366 N.W.2d at 268. The “doubtful or marginal cases [will be] largely determined

by the preference to be accorded to warrants.” State v. McCloskey, 453 N.W.2d 700, 704

(Minn. 1990) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746

(1965)) (quotation marks omitted).

      Inclusion of April 8, 2010 search results

      Appellant argues, the district court concluded, and state agrees on appeal, that the

evidence seized in the April 8, 2010 search may not properly be considered to establish

probable cause because that evidence was suppressed in appellant’s previous case. See

State v. Krech, 399 N.W.2d 203, 206 (Minn. App. 1987) (stating that illegally seized

evidence cannot “be used to furnish probable cause” for a subsequent search warrant),

aff’d on other grounds, 403 N.W.2d 634 (Minn. 1987); see also State v. Hodges, 287

N.W.2d 413, 416 (Minn. 1979) (providing that “where the court held that if lawfully

obtained information establishes probable cause and, by itself and apart from any tainted

information, would have justified issuance of the search warrant, the evidence seized

pursuant to the warrant is admitted”). The warrant application’s reference to the illegally

seized drugs on an earlier occasion was improper.




                                            6
       But the fact that previously suppressed evidence is referred to in a warrant

application does not render the resulting warrant invalid.       In State v. Lieberg, we

identified a two-step test for determining whether an independent source of information

supporting probable cause for the search warrant “is genuinely independent” of the

tainted information. 553 N.W.2d 51, 55 (Minn. App. 1996); see also Murray v. United

States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2536 (1988) (stating that “[t]he ultimate

question, therefore, is whether the search pursuant to warrant was in fact a genuinely

independent source of the information”). The first step requires the district court to

determine “whether the decision of the issuing magistrate was affected by the tainted

information.” Lieberg, 553 N.W.2d at 55 (quotation omitted). The first question in the

test may be answered “by determining whether a sanitized affidavit would establish

probable cause.” Id. The second step, addressed in section three, infra, concerns whether

the earlier unlawful search prompted police to seek the current warrant or whether police

would have sought the warrant in the absence of the information generated by the

unlawful search. Id. at 58.

       Here, the sanitized affidavit, excluding all reference to the earlier illegal search,

includes the personal observations of the CRI, and Officer Creighton’s own investigation

and observations. The sanitized affidavit still establishes probable cause supporting the

issuance of the search warrant.

       When a warrant affidavit relies on an informant’s tip, the veracity and basis of

knowledge of the informant must be considered by the issuing magistrate. State v. Souto,

578 N.W.2d 744, 750 (Minn. 1998). The credibility of an informant is not assumed, and


                                             7
a warrant affidavit must do more than assert that the informant is credible and reliable in

a conclusory fashion, State v. Siegfried, 274 N.W.2d 113, 114 (Minn. 1978), but

providing specific details of the informant’s past veracity is not required, State v.

Munson, 594 N.W.2d 128, 136 (Minn. 1999). Veracity and basis of knowledge are

“closely intertwined issues” that are not “separate and independent requirements.” State

v. Holiday, 749 N.W.2d 833, 840 (Minn. App. 2008) (citing Gates, 462 U.S. at 230,

103 S. Ct. at 2328)). All facts about the CRI should be used in weighing the CRI’s

reliability. Souto, 578 N.W.2d at 750.

       The warrant affidavit provides information regarding the CRI’s reliability,

veracity, and basis of knowledge. The affidavit states that this CRI has assisted the

Minneapolis Police Department in investigations leading to earlier arrests and

convictions. And while the district court erroneously found on the record as constituted

that this CRI was the same informant used in the April 8, 2010 and April 29, 2010 search

warrant affidavits, this finding is unnecessary to a determination of the CRI’s reliability

because the affidavit states that the CRI had previously assisted in other investigations

resulting in arrests and convictions.2 The CRI’s tip included personal observations,


2
  Whether those earlier cases actually involved the same CRI included in the application
for the January 25, 2013 warrant is not disclosed by the record. The district court also
relied on after-the-fact evidence that the search executed in this case resulted in a
recovery of cocaine to support its conclusion that the CRI’s tips were accurate in this
case. This was clear error. We disregard the success of the present warrant in our
analysis. See Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 248 (1927) (stating
that “a search prosecuted in violation of the Constitution is not made lawful by what it
brings to light”); see also Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788,
1791 n.10 (1968) (stating that “[a]ny idea that a search can be justified by what it turns up
was long ago rejected” by Byars).

                                             8
which the district court correctly weighed as the basis of knowledge “in the most

preferable form.” The CRI positively identified a picture of “Coot” as appellant. Given

our deferential standard of review, we conclude that the sanitized affidavit adequately

establishes the CRI’s reliability.

       In addition to the CRI’s statements, the affidavit includes Officer Creighton’s

investigation and his personal observations. He states that he verified that “Coot” was

appellant’s nickname, that appellant owned the vehicle that the CRI stated was used in

delivering crack cocaine, and that appellant’s residence was listed as the address that the

CRI reported as being used to sell cocaine. Officer Creighton also personally watched

appellant’s residence, saw appellant’s vehicle parked in front of the residence, and saw

“parties enter[ing] and leav[ing] this address.” This information, analyzed in context of

the totality of the circumstances and combined with the CRI’s information, provides a

substantial basis to conclude that there was a “fair probability that contraband or evidence

of a crime will be found” on appellant’s person, at his residence, and/or in his vehicle.

Wiley, 366 N.W.2d at 268 (citation omitted). Therefore, and disregarding the affidavit’s

reference to the earlier illegal search, the warrant was supported by probable cause.

       Exclusion of April 29, 2010 search results

       Appellant argues that, because the April 29, 2010 search “turned up no drugs,” this

was material evidence that should have been included in the affidavit supporting the

January 25, 2013 warrant request. Appellant argues that, had the April 29, 2010 search

and seizure of the digital scale and sandwich bags been included, it would have negated

probable cause because it demonstrates that appellant was law-abiding at the time of the


                                             9
April 29, 2010 search. The state argues that the inclusion of this evidence “would not

have called into question the instant CRI’s information” but instead would have provided

the issuing judge with additional evidence of appellant’s ongoing participation in

narcotics trade.

       We conclude that the April 29, 2010 search is benign concerning the existence of

probable cause to search on January 29, 2013. It materially supports neither appellant’s

claim that he was law-abiding nor the state’s claim that it tends to prove that appellant

was participating in narcotics trade. First, that search was nearly three years before the

present warrant. A digital scale and sandwich bags, without more, do not tend to show

that appellant was participating in narcotics trade. But neither do they tend to show that

appellant was law-abiding, as such items can be associated with drug use or sale. The

April 29, 2010 search neither supports nor negates probable cause. Its omission from the

January 25, 2013 warrant application was not significant.

       Time-frame of information in warrant application

       Appellant also argues that, because the clause “[w]ithin the last 72 hours” in the

warrant application by its terms described only when the CRI met with Officer Creighton

and not when the CRI made the observations, the information from the CRI may have

been stale. Therefore, appellant argues, the warrant affidavit was insufficient to establish

probable cause. The state responds that, because appellant did not raise this issue to the

district court, he has waived the argument on appeal.

       Appellant’s primary argument to the district court in challenging the search

warrant was that Officer Creighton’s omissions were material and invalidated the search


                                            10
warrant. The only reference in the motion to “stale” evidence is in appellant’s request for

a Franks hearing, where appellant argues generally that information supporting a search

warrant must not be stale or otherwise inadmissible.

       Appellant did not argue to the district court that the warrant application referred

only to when the CRI revealed information and not when the CRI obtained that

information. This is therefore a new argument on appeal, and we do not address it. Roby

v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that we “generally will not decide

issues which were not raised before the district court, including constitutional questions

of criminal procedure”).

                                          II.

       Appellant also argues that the district court improperly denied his motion for a

Franks hearing to determine whether Officer Creighton’s omissions were material and

made knowingly or with reckless disregard for the truth.

       A search warrant “must be voided and the fruits of the search excluded” when

police, in procuring a search warrant, knowingly or recklessly disregard the truth by

including a material misrepresentation that is necessary to establish probable cause.

Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978). The subject of a

search “must show that the officer deliberately made a statement that was false or in

reckless disregard of the truth, and that the statement was material to the probable cause

determination.”   State v. McDonough, 631 N.W.2d 373, 390 (Minn. 2001).               This

principle also applies to material omissions. See State v. Doyle, 336 N.W.2d 247, 252

(Minn. 1983) (concluding a warrant issued to search two, unconnected apartments lacked


                                            11
probable cause as to one of the apartments because affiant-officers did not inform the

magistrate of their doubts as to the information relating to that apartment and the warrant

did not otherwise support a search of the same). Innocent or negligent misrepresentations

will not invalidate a warrant. State v. Causey, 257 N.W.2d 288, 292 (Minn. 1977).

       Appellant argues that the district court erred in denying his motion for a Franks

hearing to determine whether the omissions were deliberate or reckless because the

failure of Officer Creighton to include information regarding the April 29, 2010 search

was “critical to the informant’s veracity in this particular instance.” Appellant also

argues that omitting information concerning the suppression of the April 8, 2010 search

also constitutes a material omission. In examining an alleged Franks search-warrant-

application deficiency, we review the district court’s findings for clear error. State v.

Andersen, 784 N.W.2d 320, 327 (Minn. 2010). We review de novo whether the alleged

omissions were material to the probable cause determination. Id.

       Appellant seems to argue that the information pertaining to the cocaine seized in

the earlier search should be excluded but the fact that a search ended in suppression of the

seized evidence should be included.       This argument is not supported by any legal

authority. The April 8, 2010 search was properly excluded by the district court in

considering whether the January 25, 2013 warrant was supported by probable cause. The

district court also correctly determined that the omission of the April 29, 2010 search was

“immaterial.”

       Because the district court properly excluded the fruits of the April 8, 2010 illegal

search and because the April 29, 2010 search was not material, the district court did not


                                            12
err in concluding that the second prong of the Franks test was unnecessary.              See

McDonough, 631 N.W.2d at 391; see also Lieberg, 553 N.W.2d at 57 (stating “the trial

court must resolve [a] claim only if the allegedly false statement is vital to a finding of

probable cause”). The district court did not err in denying the request for a Franks

hearing.

                                           III.

       Appellant argues that the district court did not properly apply the two-step Lieberg

test to determine whether the state would have sought the January 25, 2013 warrant even

without the improperly seized evidence of April 8, 2010. He argues that this case must

be remanded for additional fact-finding.

       Where a search warrant is supported by illegally seized evidence, suppression of

resulting evidence is not required when an independent source of information “existed

and was known” before the search commenced. Hodges, 287 N.W.2d at 415-16. As

previously discussed, there is a two-step test for determining whether the allegedly

independent source of information supporting probable cause for the search warrant “is

genuinely independent” of the tainted information. Lieberg, 553 N.W.2d at 55. The first

step requires a determination of whether the issuing magistrate’s decision was affected by

the improper information. Id. The second step requires the district court to “conduct a

factual inquiry into whether the unlawful search prompted the authorities to seek a

warrant.” Id. We stated in Lieberg that, if the district court “fails to undertake the second

step, it cannot justify a conclusion regarding the existence of an independent source, and

a reviewing court must remand for additional findings.” Id.


                                             13
       The state concedes that the district court did not make the required factual findings

concerning whether police would have been prompted to seek the January 25, 2013

warrant without the evidence of the April 8, 2010 search in which 81.5 grams of crack

cocaine was recovered. Our thorough review of the district court’s findings does not

reveal that the district court found or considered whether the police would have sought

the January 25, 2013 warrant without the evidence of the April 8, 2010 search. We are

obligated by our holding in Lieberg to remand to the district court to conduct additional

fact-finding. We remand to the district court with the following instructions:

              If the [district] court determines [that] the police would have
              sought a warrant even in the absence of the information
              generated by the [April 8, 2010] search, [appellant’s]
              conviction will stand. But if it finds that the [April 8, 2010]
              search prompted the authorities to seek a warrant, it must
              suppress the evidence gathered in the search of [appellant’s
              person, home, and vehicle] and vacate his convictions.
              Because factual determinations lie within the province of the
              [district] court, we express no view as to the merits of
              [appellant’s] fact-based claim.

Lieberg, 553 N.W.2d at 58 (citations omitted).

       Affirmed in part and remanded.




                                            14
