State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0499

State of Minnesota,
Respondent,

vs.

Machelle Jean Frisbie,
Appellant.

Filed April 15, 2019
Affirmed
Bratvold, Judge

Winona County District Court
File No. 85-CR-17-361

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Karin L. Sonneman, Winona County Attorney, Christina M. Galewski, Assistant County
Attorney, Winona, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

David M. Robbins, Special Assistant Public Defender, Meyer Njus Tanick, PA,
Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and
Bratvold, Judge.

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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this appeal from the final judgment of conviction and sentence for fifth -degree
controlled-substance crime, appellant Machelle Jean Frisbie challenges the district court’s
denial of her motion to suppress evidence that was seized as a result of a search of her
home. Frisbie argues that (1) the affidavit submitted in support of the warrant had material
omissions, and (2) the search warrant lacked probable cause . Because the o mission of
certain facts from the supporting affidavit was not material , and because the record
supports the district court’s conclusion that the warrant was based on a fair probability that
drugs would be located in Frisbie’s home, we affirm.
FACTS
In January 2017, law enforcement received a tip from a confidential informant (CI)
that the “occupants of [ Frisbie’s] residence are up at all hours of the night and that there
are vehicles coming and going from the residence.” Investigator Walch, a sheriff with the
Winona County Sheriff’s Office, investigated further, surveilled the home, and received
additional information from the CI. Walch identified the residents of the home as Frisbie
and J. B., both of whom were known drug users on probation for controlled -substance
crimes. During surveillance of the home, Walch saw other known “drug users . . .
frequenting the residence” throughout the day and night, including D.B. Walch also
observed that methamphetamine users are often “awake and active for days at a time.” And
Walch saw Frisbie make “frequent visits” to vehicles parked in the driveway between the
hours of 11:00 p.m. and 5:00 a.m.

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On February 13, 2017, the CI reported to Walch that a “Buick passenger car was
parked in the driveway” of Frisbie’s home. Walch identified the Buick’s owner as T.P.,
who was “currently on probation for a controlled substance conviction.” Later that day, “at
approximately 10:44 p.m.,” deputies stopped the Buick, found over 25 grams of controlled
substances, and arrested the dr iver, D.B., whom Walch had previously observed visiting
Frisbie’s home on several occasions. D.B. was charged with a controlled-substance offense
for his February 13 arrest. On February 14, Walch received a “tip from the online reporting
system” that drug trafficking was taking place in Frisbie’s home.
Walch applied for a sea rch warrant for Frisbie’s home on February 17, 2017 . In
addition to the facts described above, Walch’s affidavit included Frisbie’s criminal history
and stated that Walch believed “there [was] illegal drug activity ongoing” at Frisbie’s
home.
The same day, the district court signed the search warrant. On February 20, police
officers executed the warrant at F risbie’s home, in her presence. In her bedroom, officers
found a “plastic baggie” which “field-tested positive for the presence of cocaine, but [was]
believed to be ‘turbo’ – a street name for Alpha-PVP.”1 Police also found “a burnt piece of
tinfoil believed to be drug paraphernalia; a pink metal box containing drug paraphernalia;
one pill identified as morphine under the dresser; and pieces of burnt tinfoil.” B.K. was
also present and was arrested after police found drug paraphernalia in her duffle bag.

1 “Alpha-PVP” or “Alpha-pyrrolidinopentiophenone” is a controlled substance, commonly
referred to as “turbo.” Turbo was identified in the warrant application, which stated that
turbo users “are often awake for days at a time due to the stimulant effect of the drug.”

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On February 21, 2017, the state charged Frisbie with two counts: (1) fifth-degree
controlled-substance crime under Minn. Stat. § 152.025, subd. 2(1) (2016), and
(2) possession of drug paraphernalia under Minn. Stat. § 152.092(a) (2016).
Frisbie filed a motion to su ppress “any and all evidence” that was obtained by law
enforcement during the search of h er home “on the grounds that the search violated [her]
rights as guaranteed by the 4th and 14th amendments to the United States Constitution and
correlate[d] provisions o f the Minnesota Constitution.” In support of her suppression
motion, Frisbie argued that material facts were omitted from the warrant application.
Specifically, Frisbie contended that the lo cation and circumstances of D. B.’s arrest were
missing from the application. Frisbie asserted that these omissions were material because
D.B. was stopped approximately ten miles from Frisbie’s hom e, and no facts established
that D.B. had recently left Frisbie’s home before he was stopped. Frisbie also argued that
probable cause did not support the warrant.
The state opposed Frisbie’s motion and argued that “the signing judge had two
grounds for authorizing th e search of Frisbie’s residence: 1) reasonable articul able
suspicion that felony -level probationers were violating conditions of probation, and
2) probable cause to believe that evidence of controlled substance offenses would be at
Frisbie’s residence.”
At a contested omnibus hearing, which Walch did not att end, Frisbie elicited
additional evidence about D.B.’s arrest by way of written questions to Walch. Walch
responded that police did not conduct a traffic stop of the Buick on February 13, rather, an
officer did a welfare check after finding the Buick on th e side of a highway with D.B.

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“passed out” in the driver’s seat . The officer’s supplemental report was also fil ed as an
exhibit and further described D.B.’s arrest, explaining that drugs were found on D.B.’s
person and in the Buick, and that the arrest occurred in Stockton.
In a written order, the district court denied Frisbie’s motion to suppress the evidence
from the search. The court determined that the warrant application was not deliberately
false or made in reckless disregard of the truth, even though it did not completely describe
the circumstances of D.B.’s arrest. The district court concluded that “the failure to include
more precise details . . . was an innocent or negligent misrepresentation. Such a
misrepresentation is not enough to invalidate th e warrant.” The district court also
concluded that, despite the warrant’s deficiencies in “certain areas,” the issuing court had
a substantial basis for concluding that probable cause existed.
The parties agreed that the pretrial suppression order was dispositive of the case and
stipulated to facts, pursuant to Minn. R. Crim. P. 26.01, subd. 4, to preserve the issue for
appellate review. Based on the stipulated facts, the district court found Frisbie guilty of
fifth-degree controlled-substance crime, stayed imposition of her sentence, and placed her
on supervised probation for five years. Frisbie appeals.
D E C I S I O N
The United States and Minnesota Constitutions provide that search warrants must
be supported by probable cause. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. This
court reviews a district court’s decision to issue a search warrant to see if there was a
“substantial basis for concluding that probable cause existed.” State v. Fawcett , 884
N.W.2d 380, 384 (Minn. 2016) (quotation omitted). This court limits its review to the

6
information contained in the warrant application and its supporting affidavit. Id. at 384-85.
And we apply the totality -of-the-circumstances test articulated by the Unite d States
Supreme Court in Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983),
which explained that:
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. And the
duty of a reviewing court is simply to ensure that the magistrate
had a substantial basis for concluding that probable cause
existed.

462 U.S. at 238 -39, 103 S. Ct. at 2332 (quotation omitted) ; see also State v. Souto ,
578 N.W.2d 744, 747 (Minn. 1998) (applying Gates).
When reviewing a pretrial order on a motion to suppress, this court reviews the
district court’s factual findings for clear error, and the district court’s legal determinations,
including a determinat ion of probable cause, de novo. State v. Milton , 821 N.W.2d 789,
798 (Minn. 2012). We afford great deference to the district court’s decision to issue a
search warrant. State v. Rochefort , 631 N.W.2d 802, 804 -05 (Minn. 2001). Thus, close
cases should be “largely determined by the preference to be accorded to warrants.”
Fawcett, 884 N.W.2d at 385 (quotation omitted).
I. The affidavit supporting the warrant application did not contain material
omissions.

Frisbie argues that Walch’s affidavit contained material omissions, and therefore,
that the warrant was void in its entirety. Specifically, Frisbie contends t hat the application

7
omitted details concerning D.B.’s arrest, “namely that it occurred nearly ten miles away
from [Frisbie’s] residence,” and it happened later in the evening, much after D.B. had left
Frisbie’s home.
In order for a search warrant to be invalidated due to misrepresentations or
omissions in the supporting affidavit, appellant must show under the Franks test that (1) the
officer deliberately or recklessly made false statements or omissions and (2) the statements
or omissions were material. State v. Andersen, 784 N.W.2d 320, 327 (Minn. 2010) (citing
Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684 (1978)). An omission is
material if the warrant would lack probable cause if it were included. Id.
Appellate courts review “a district court ’s findings on the issue of whether the
affiant deliberately made statements that were false or in reckless disregard of the tru th”
under the clearly erroneous standard, and “a district court’s determination of whether the
alleged misrepresentations or omissions were material to the probable cause
determination” is reviewed under the de novo standard . Id. When reviewing an affidavi t,
we look at it as a whole rather than “each component of the affidavit in isolation.” State v.
Wiley, 366 N.W.2d 265, 268 (Minn. 1985).
We consider both steps of the Franks test. Regarding the first step, a defendant has
the burden of showing by a preponderance of the evidence that the affiant knowingly or
recklessly included a false statement in the affidavit. State v. McGrath, 706 N.W.2d 532,
540 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006) . “[I]nnocent or negligent
misrepresentations will not invalidate a warrant.” State v. Moore , 438 N.W.2d 101, 105
(Minn. 1989). Frisbie argues that by omitting the fact s that D.B.’s arrest took place

8
approximately ten miles from Frisbie’s home and occurred later in the evening, Walch
falsely implied in his affidavit that D.B. was “in route from [Frisbie’s] residence —or at
least still nearby the residence —at the time [he] was stopped by law enforcement.” 2 She
argues, therefore, that the warrant failed to include in formation that would contradict
“inferences in the affidavit,” and “reasonably lead a reader to infer something that the
affiant knew not to be true.” See Novak v. State, 349 N.W.2d 830, 832-33 (Minn. 1984)
(providing that a failure to include information that would contradict “inferences in the
affidavit . . . would constitute reckless or intentional omission of material facts”).
It is true that the warrant application made no mention of the location of D.B.’s
arrest or the time that the Buick was seen at Frisbie’s home. But we disagree with Frisbee’s
claim that Walch’s affidavit implied that D.B. had recently left Frisbie’s home. In fact,
Walch’s affidavit stated that D.B.’s arrest took place “[l]ater in the day,” meaning, at some
point after the Buick was spotted at Frisbie’s home. Accordingly, the record supports the
district court’s finding that the affidavit did not make a false statement, and the omission
of details surrounding D.B.’s arrest was an “innocent or negligent misrepresentation”
which does not invalidate the warrant. Moore, 438 N.W.2d at 105. Thus, the district court’s
finding that Walch’s statements and omissions were not deliberate or made in reckless
disregard of the truth is not clearly erroneous.

2 Frisbie’s addendum to this court included two maps depicting the distance from Frisbie’s
home to the location of D.B.’s arrest. These maps are not part of the record and we do not
consider them. See Minn. R. Civ. App. P. 110.01. The district court relied on officer
testimony and determined in its order that D.B.’s arrest took place “eight to eleven m iles
away” from Frisbie’s home. Frisbie does not challenge this finding on appeal.

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Even assuming that Walch deliberately or recklessly omitted information, Frisbie
fails on the second step of the Franks test because the omissions were not material. Frisbie
argues that the “traffic stop of [D.B.] is the single most-important piece of evidence in the
warrant as it is the only cre dible direct evidence of illegal activity” and without the
connection of D.B.’s arrest to Frisbie’s home, the assertion of drug activity at the home is
“dubious.” But even if the affidavit had stated that D.B.’s arrest took place “eight to eleven
miles” from Frisbie’s home, the affidavit also attested that D.B. “was arrested after deputies
located over 25 grams of what field-tested positive as a controlled substance” in a vehicle
that had been at th e residence earlier in the day. And Walch’s affidavit also averred that
D.B. is a “known drug user[]” who Walch had observed making frequent visits to Frisbie’s
home. Thus, we agree with the district court’s determination that the omissions are “not
enough to invalidate the warrant.”
II. The district court did not err in denying Frisbie’s suppression motion because
the warrant was supported by probable cause.

Frisbie also argues that probable cause did not support the warrant because a
sufficient nexus did not exist between illegal drug use and Frisbie’s home, and because law
enforcement did not sufficiently corroborate the CI. We discuss both arguments in turn.
A. Nexus
Probable cause requires “that there is a fair probability that the evidence will be
found at the specific site to be searched.” State v. Yarbrough, 841 N.W.2d 619, 622 (Minn.
2014). In other words, there must be a sufficient nexus between the evidence of a crime
and the place to be searched. Id. This nexus can be inferred from th e totality of the

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circumstances. Id. Circumstances to be considered in making this determination “are the
type of crime, the nature of the items sought, the extent of the defendant’s opportunity for
concealment, and the normal inferences as to where the defendant would usually keep the
items.” Id. at 623.
Although the district court commented that the “warrant application was perhaps
not the strongest in certain areas,” we conclude that it established a sufficient nexus based
on a totality of the circumstances . First, Walch knew the CI . This bolsters the CI’s
credibility, and the credibility of the CI’s tip that drug-related activity was taking place at
Frisbie’s home. A n informant “who voluntarily comes forward and identifies herself is
more likely to be telling the truth because she presumably knows that the police could arrest
her for making a false report.” State v. Lindquist, 205 N.W.2d 333, 335 (Minn. 1973).
Second, Walch surveilled the home and saw ongoing drug-related activity. Walch
observed frequent night-time visits from known drug users, including visitors who were on
probation for controlled-substances crimes. Walch saw the visitors parked in the driveway
at Frisbie’s house, and Frisbie “go[ing] to and from [these] vehicles” at all hours of the day
and night. In his affidavit, Walch stated that he believed “there [was] illegal drug acti vity
ongoing” at the residence.
Third, Walch knew Frisbie as a drug user, knew that she wa s on probation for a
controlled-substance offense, and described her criminal history in the affidavit. Frisbie
had numerous convictions for controlled -substance and drug -paraphernalia crimes. A
signing court may rely on an occupant’s criminal history in issuing a search warrant. See
State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005) (“A person’s criminal record is among

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the circumstances a judge may consider when determining whether probable cause exists
for a search warrant.”).
Fourth, D.B.’s arrest for poss ession of controlled substances increased the
probability of finding drug evidence in Frisb ie’s home because D.B. was a “frequent”
visitor of Frisbie’s home, and was known to Walch as a drug user. In addition, the Buick
that D.B. was driving at the time of his arrest was seen by the CI at Frisbie’s home on
February 13. “Later in the day,” law enforcement found a “container containing more than
25 grams of a controlled substance” in the Buick. Finally, a tip from an online reporting
system stated that Frisbie’s home was involved in drug trafficking. Thus, we conclude,
based on a totality of the circumstances, that the warrant application established a sufficient
nexus between Frisbie’s home and drug activity.
Frisbie asserts that relevant caselaw supports her position and cites State v. Kahn,
where th is court upheld the district court’s finding of no probable cause to search
appellant’s home after appellant was arrested for possessing a large quantity of drugs found
in his car at least 75 miles from his home. 555 N.W.2d 15, 16 -19 (Minn. App. 1996). But
Kahn is distinguish able. Here, Walch observed drug -related activity in the driveway of
Frisbie’s home, not 75 miles away. In addition, Walch’s observations of drug -related
activity in Frisbie’s driveway were corroborated by other sources, including the CI’s tip,
the online tip, and D.B.’s arrest for possession of drugs.
Frisbie also argues that State v. Yarbrough supports her position because Walch’s
affidavit did not aver that Frisbie was involved in drug sales. Yarbrough stated that
Minnesota courts have “ drawn a distinction between a ‘drug wholesaler ’ and a ‘casual

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user.’. . . It may be reasonable to infer that drug wholesalers keep drugs at their residences,
but such an inference, without more, is unwarranted for casual users.” 841 N.W.2d at 623
(quotations and citations omitted). We agree that the criminal activity described in Walch’s
affidavit was drug use, not drug sales. But the warrant application did not infer that drugs
would be found at Frisbie’s home because she was a drug user. Walch’s affidavit included
his observations of drug-related activity at Frisbie’s home, Frisbie’s probation and criminal
history for drug use crimes , her association with people involved with drug use, D.B.’s
arrest for drug possession, and the CI’s tips.
This court considers the sufficiency of the warrant application based on the totality
of the circumstances and does not view any fact in isolation. Fawcett, 884 N.W.2d at 384-
85. We conclude that the warrant application establ ished a sufficient nexus between
Frisbie’s home and illegal drug activity.
B. Lack of corroboration
Frisbie contends that the CI was not sufficiently corroborated. “Where a probable
cause determination is based on an informant’s tip, the informant’s veracity and the basis
of his or her knowledge are considera tions under the totality test.” State v. Ward , 580
N.W.2d 67, 71 (Minn. App. 1998). Minnesota caselaw provides several considerations in
reviewing the reliability of a CI, including: (1) a “first-time citizen informant who has not
been involved in the criminal underworld is presumed to be reliable ”; (2) a CI that has
previously given police correct information; (3) sufficient corroboration of the information
supplied by a CI; (4) whether the CI voluntarily came forward; (5) the CI’s involvement in
a “controlled purchase”; and (6) a CI’s statement against their penal interest. Id.

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Frisbie argues that the warrant application did not corroborate the CI’s reliability .
We disagree. While not all six considera tions supporting a CI’s reliability are present in
this record, three considerations bolster ed the CI’s reliability. First, the CI was known to
Walch, enhancing the CI’s reliability. See Lindquist, 205 N.W.2d at 335. Second, Walch’s
affidavit also attested that he believed the CI had no criminal history, which also adds to
the informant’s reliability. See Ward, 580 N.W.2d at 71 (“A first -time citizen informant
who has not been involved in the criminal underworld is presumed to be reliable, but the
affidavit must specifically aver that the informant is not involved in criminal activity.”).
While Walch’s affidavi t did not state that the CI is a first -time citizen informant, the
affidavit sufficiently established the CI’s reliability.
Third, Walch corroborated the CI’s statements through his investigation and
surveillance. The affidavit averred that, after t he CI stated that “occupants of [Frisbie’s]
residence are up at all hours of the night and that there are vehicles coming and going from
the residence,” Walch observed the exact same behaviors in Frisbi e’s driveway by
individuals known to be drug users . See State v. Holiday, 749 N.W.2d 833, 841 (Minn.
App. 2008) (“Even corroboration of minor details lends credence to an informant’s tip and
is relevant to the probable-cause determination.”). The record also shows that, after the CI
reported the Buick in Frisbie’s d riveway, Walch saw the Buick, performed a registration
check, and identified the vehicle’s owner , who was on probation for a drug conviction .
Because Walch’s affidavit corroborated the CI’s statements, the CI was known to Walch,

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and the CI did not have a known criminal history, we conclude that the CI was reliable.3
We conclude that the issuing court had a substantial basis to conclude that probable
cause existed to search Frisbie’s home. We affirm the district court’s denial of Frisbie’s
motion to suppress.
Affirmed.

3 The state argues, in the alternative, that, because Frisbie was “subject to search to ensure
compliance with her probationary conditions,” only reasonable articulable suspicion, rather
than probable cause, was required to authorize the search. We do not consider or decide
the state’s alternative argument.