This opinion will be unpublished and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

A15-1683

State of Minnesota,

Respondent,

vs.

Albert William Brown,

Appellant.

Filed December 12, 2016

Affirmed

Connolly, Judge

Hennepin County District Court

File No. 27-CR-14-13125

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Michael M. Sawers, 

Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, Minnesota (for 

appellant)

Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and Reilly, 

Judge. 
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U N P U B L I S H E D O P I N I O N

CONNOLLY, Judge

In this appeal following his conviction after a jury trial, appellant argues that the 

search warrants for himself and his home were not supported by probable cause because 

the district court erred in concluding that the confidential informant was reliable. Because 

we conclude that the confidential informant was reliable and the search warrants were 

supported by probable cause, we affirm.

FACTS

On May 6, 2014, a deputy sheriff applied for one search warrant for a house located 

at 3620 Penn Avenue North (3620 Penn) in Minneapolis and another for the person of 

appellant Albert William Brown (the warrants).1 In the applications for the warrants, the 

deputy stated that, in April 2014, he received information from a confidential reliable 

informant (CRI) that a man named “Mo” was selling narcotics from 3620 Penn; that 

persons in the residence had at least one handgun; and that another male lived with “Mo” 

at 3620 Penn and went by the street name “Butter.” The applications for the warrants stated 

that the CRI

provided names and addresses of parties known to the CRI to 

be involved in the distribution of narcotics to [the deputy and] 

. . . provided information to local law enforcement officers 

regarding narcotics traffickers in the twin cities metro areas in 

the past [that] was independently corroborated by [the deputy] 

and other law enforcement officers and found to be true and 

 

1 The application for the search warrant of 3620 Penn and for the search warrant of 

appellant’s person are substantially similar, detailing nearly identical allegations and 

supporting circumstances.
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correct. Furthermore, [the] CRI has provided information that 

has led to the seizure of narcotics and weapons.

The deputy was able to identify “Mo” and showed the CRI a photo of him. The CRI 

positively identified “Mo” as one of the men living at 3620 Penn that sells cocaine. The 

deputy did computer checks for 3620 Penn and learned that appellant was associated with 

the address. The CRI positively identified appellant as the other male, “Butter,” living at 

3620 Penn and selling cocaine. The applications for the warrants also noted that Violent 

Offender Task Force (VOTF) officers executed a search warrant at 3620 Penn in the past 

and recovered a large amount of cocaine.

The applications for the warrants also stated that within 72 hours of applying for the 

warrants, the deputy met with the CRI, checked him for money and contraband, found 

none, and “[u]nder the direction and control of [the deputy] and other VOTF officers, the 

CRI conducted a controlled purchase of crack cocaine from [appellant] from the residence 

at 3620 Penn.” (Emphasis added). After meeting with appellant, the CRI returned to the 

deputy with crack cocaine. The deputy checked the criminal-history records for appellant 

and learned that he had been arrested numerous times for narcotics crimes; specifically he 

was found with narcotics and a loaded .223 assault rifle in 2010. Based on “the information 

received from the [CRI], previous police contact history, [and] the controlled buy of crack 

cocaine from [3620 Penn, the deputy] believe[d] that narcotics and firearms [were] located 

at [3620 Penn].”

On May 6, 2014, the district court judge issued warrants for the search of 3620 Penn 

and for appellant’s person. The warrants were executed on May 8. On appellant’s person 
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the police found: (1) 3.5 grams of crack cocaine; (2) approximately 11 crushed pills of 

suspected ecstasy; and (3) $2,056 in U.S. currency. At 3620 Penn the police found: (1) two 

digital scales; (2) a soda bottle with 12.03 grams of suspected cocaine; (3) a bag containing 

150.82 grams of marijuana; and (4) $2,205 in U.S. currency. 

During his interview with police, appellant admitted that (1) everything in the house 

was his; (2) he lived in the basement while “Mo” lived upstairs, and (3) he and “Mo” were 

the only ones who lived at the house. On May 9, 2014, a complaint was filed, charging 

appellant with one count each of (1) first-degree sale of ten grams or more of a controlled 

substance (cocaine); (2) third-degree possession of three grams or more of a controlled 

substance (cocaine); and (3) fifth-degree sale of a controlled substance (marijuana). 

On July 9, 2014, appellant filed a motion to suppress evidence arguing that the 

warrants were not supported by probable cause because the CRI was not reliable, the 

officers failed to independently corroborate the CRI’s tip, and the controlled purchase did 

not follow the reliable procedure for conducting controlled purchases. The district court 

denied the motion, concluding that the judge issuing the warrants had a substantial basis to 

conclude that probable cause existed that contraband would be found at 3620 Penn and on 

appellant’s person. Appellant was subsequently tried by a jury and convicted on all three 

counts. 

D E C I S I O N

An appellate court reviewing a district court’s probable-cause determination made 

upon issuing a search warrant applies a deferential, substantial-basis standard of review. 

State v. Rochefort, 631 N.W.2d 802, 804 n.1 (Minn. 2001). 
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The task of the issuing magistrate is simply to make a practical, 

common-sense 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. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (quotation omitted). 

Appellant argues that the warrants for 3620 Penn and his person were not supported 

by probable cause because the district court erred in concluding the CRI was reliable. 

Courts consider six factors to assess the reliability of a confidential, but not anonymous, 

informant:

(1) [A] first-time citizen 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 first, fourth, and sixth factors 

are not relevant to this case because this was not a first-time citizen informant, it is unclear 

whether or not the informant voluntarily came forward, and it is unclear that the CRI’s 

statements were against his own interests. 

“The second factor is fulfilled by a simple statement that the informant has been 

reliable in the past because this language indicates that the informant had provided accurate 

information to the police in the past and thus gives the magistrate . . . reason to credit the 
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informant’s story.” Id. (quotation omitted). In the application for the search warrant, the 

deputy stated:

The CRI has provided names and addresses of parties 

known to the CRI to be involved in the distribution of narcotics 

to [the deputy]. The CRI provided information to local law 

enforcement officers regarding narcotics traffickers in the twin 

cities metro areas in the past. This information was 

independently corroborated by [the deputy] and other local law 

enforcement officers and found to be true and correct. 

Furthermore, this CRI has provided information that has led to 

the seizure of narcotics and weapons.

Appellant argues that this statement is inadequate to allow the district court to make an 

independent and informed decision regarding the reliability of the informant. But Ross 

specifically states that “specific details of the past veracity of the CRI” do not need to be 

alleged. Id. We conclude that the second factor favors affirming the district court’s denial 

of the motion to suppress.

Appellant also argues that the police did not corroborate any of the facts provided 

by the CRI to establish reliability. The district court concluded that “officers investigated 

and corroborated the identities of ‘Mo’ and ‘Butter’ by conducting computer checks and 

obtaining a positive identification for [Mo] and [appellant] from the CRI prior to applying 

for a search warrant.” Additionally, the district court found that “the controlled buy adds 

to the reliability and establishes the CRI’s basis of knowledge in this case.” 

But in narcotics cases, “controlled purchase” is a term of art and indicates reliability. 

Id. In this case, the applications for the warrants clearly state: “[T]he CRI conducted a 

controlled purchase of crack cocaine from [appellant] from the residence at 3620 Penn.” 

(Emphasis added). Because “controlled purchase” is an accepted term of art, we assume 
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that when an experienced drug enforcement officer identifies a controlled purchase as such, 

it is a proper controlled purchase. See State v. Ward, 580 N.W.2d 67, 73 (Minn. App. 

1998) (concluding that when “controlled purchase” is not used in an affidavit by an 

experienced drug enforcement officer, it was not a proper controlled purchase).

The controlled purchase supplied corroboration for the informant’s tip. The 

applications for the warrants state that in April 2014 the CRI told the police that “Mo” was 

selling narcotics from 3620 Penn and that there was another individual living there that 

goes by the street name “Butter.” The CRI also stated that “Mo” drives a gold-colored 

Suburban that is parked behind the residence. The police observed a gold-colored 

Suburban parked behind 3620 Penn. Then, after receiving the confidential tip and within 

72 hours of the issuance of the warrant, at least six days after originally getting the tip from 

the CRI, the police conducted a controlled purchase from appellant at 3620 Penn. All of 

this information was included in the four corners of the applications for the warrants. 

Unless the controlled purchase was improper, the controlled purchase corroborated the 

CRI’s tip that cocaine was being sold out of 3620 Penn by “Mo” and appellant.

Appellant alleges that the controlled purchase was unreliable and thus cannot be 

relied upon by the magistrate in issuing the warrants. Appellant argues that the applications 

for the warrants (1) do not indicate whether the deputy “simply asked the informant to turn 

out his pockets or whether [the deputy] conducted an actual search of the informant;” 

(2) “fail to disclose the amount of money supplied to the informant;” (3) do not indicate 

whether the CRI had any other drugs or contraband or the prerecorded funds after the buy; 

and (4) “[did] not indicate whether the police completed a post-buy search of the [CRI] to 
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determine whether he actually purchased the crack cocaine from [appellant].” 

Additionally, appellant argues that the controlled purchase is not proper because it was not

audio recorded by the police. 

“[W]here the affidavit refers to a ‘controlled purchase,’ the magistrate may accept 

this as a term of art and presume that police searched the informant immediately before 

and after the alleged drug purchase and conducted surveillance of the purchase to the extent 

feasible.” Id. at 71. Thus when “controlled purchase” is used as a term of art, as it was in 

the applications for the warrants, the police need not detail how they conducted the search 

of the CRI, how much money was given to the CRI to purchase cocaine from appellant, or 

whether they did a post-buy search of the CRI. The applications for the warrants indicate 

that at the end of the controlled purchase, the CRI returned and “produced a quantity of 

white rock like substance that [appellant] represented as crack cocaine in exchange for 

cash” which is more than is required. Additionally, audio recording is not required. The 

only requirement is that the police “conduct[] surveillance of the purchase to the extent 

feasible.” Id. Because the police were not specifically required to do so, the lack of an 

audio recording does not make the controlled purchase unreliable. 

The cases cited by appellant are inapposite because they do not involve a “controlled 

purchase” as a term of art to establish reliability for probable cause. State v. McIntosh held 

that the use of evidence of drug transactions on other dates pertaining to separate charged 

offenses cannot support a finding of three or more separate transactions to justify a 

sentencing departure. 641 N.W.2d 3, 9 (Minn. 2002). In that case, a CRI conducted five 
9

controlled purchases but whether the controlled purchases were reliable was not even 

mentioned or analyzed. Id. at 5.

State v. DeShay involved a paid CRI who testified that the defendant had sold him

cocaine one time. 645 N.W.2d 185, 188 (Minn. App. 2002), review granted (Minn. 

Aug. 20, 2002). The appellant in DeShay argued that the only direct evidence presented 

showed that he sold 0.01 grams of crack cocaine to a CRI during a controlled purchase and 

that was not sufficient to prove that he conspired to sell ten or more grams of cocaine. Id. 

at 190. The court concluded that circumstantial evidence and rational inferences drawn 

from the controlled purchase and other testimony elicited at trial supported the jury’s 

finding that a conspiracy to sell ten grams or more of cocaine within a 90-day period 

existed. Id. at 191. The court in DeShay did not express any displeasure with the reliability 

of the controlled purchase.

Finally, appellant cites to State v. Ascheman to support his argument that the 

controlled purchase was unreliable. Ascheman involved an undercover police officer who 

wore a “body wire” to record a conversation when she purchased marijuana from the 

appellant. State v. Ascheman, 589 N.W.2d 486, 488 (Minn. App. 1999). The issue in the 

case was whether the district court abused its discretion in instructing the jury. Id. at 489. 

Ascheman was not a controlled purchase with a CRI and the court did not discuss a proper 

protocol for conducting a controlled purchase. It was merely a case where an undercover 

police officer wore a wire. Neither McIntosh, DeShay, nor Ascheman discuss or mention 

any safeguards required to establish a reliable controlled purchase and are not controlling 

here. 
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Because the CRI and the controlled purchase were reliable, the district court did not 

err in determining that there was a fair probability that contraband or evidence of a crime 

would be found at 3620 Penn and on appellant’s person. We conclude that the district court 

did not err in denying appellant’s motion to suppress the evidence found when the warrants 

were executed.

Affirmed.