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This opinion will be unpublished and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
A18-1106

State of Minnesota,
Respondent,

vs.

Brady Ray Veselka,
Appellant.

Filed May 6, 2019
Affirmed
Ross, Judge

Marshall County District Court
File No. 45-CR-17-165

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

Donald J. Aandal, Marshall County Attorney, Warren, Minnesota (for respondent)

Rory Patrick Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Police executed a no-knock search warrant on Brady Veselka’s house after a
confidential reliable informant told a BCA agent that he saw methamphetamine and drug
2
paraphernalia inside. Because the informant’s tip provided the district court probable cause
to issue the warrant and reasonable suspicion to authorize a no-knock entry, we affirm.
FACTS
According to a search-warrant application, on May 3, 2017, a confidential reliable
informant (CRI) told Minnesota Bureau of Criminal Apprehension Special Agent Ron
Woolever that the CRI saw both methamphetamine and methamphetamine paraphernalia
inside Brady Veselka’s house. The CRI also purportedly believed that Veselka possibly
manufactured methamphetamine “on occasion.” Marshall County Deputy Cody Gillund
told Agent Woolever that Veselka was suspected of manufacturing methamphetamine and
that he possibly possessed a handgun. The agent obtained a report of Veselka’s criminal
history, which included an assault conviction and two firearm-possession convictions.
Agent Woolever applied for a “no-knock” warrant to search Veselka’s home and
person. A district court judge issued the warrant on May 5 and police executed it on
May 10. The home search yielded items that were consistent with methamphetamine
manufacturing, including cold- medication tablets, rubber tubing, l ye, and plastic gas
cans. Officers also found a .357 caliber bullet, hypodermic needles, and other drug
paraphernalia. Police took Veselka into custody.
The state charged Veselka with first-degree methamphetamine manufacturing,
possession of ammunition as a convicted felon, and possession of methamphetamine
precursors with the intent to manufacture. Veselka moved to dismiss the charges on the
grounds that the search warrant was not based on probable cause and moved to invalidate
the warrant because it impermissibly authorized a no-knock entry. The district court
3
denied the motions. Veselka agreed to a stipulated-evidence bench trial under Minnesota
Rule of Criminal Procedure 26.01, subdivision 4. The district court found Veselka guilty
of possession of methamphetamine precursors with the intent to manufacture.
Veselka appeals.
D E C I S I O N
Veselka makes two arguments on appeal. He argues that the district court
erroneously issued the search warrant un supported by probable cause. He argues
alternatively that the district court erroneously authorized a no -knock entry. Both
arguments fail.
I
We reject Veselka’s argument that the district court lacked probable cause to issue
the search warrant. Whether probable cause exists rests on the totality of the circumstances.
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). We afford great deference to a judge’s
determination of probable cause , examining the record only to “ensure that the issuing
judge had a substantial basis for concluding that probable cause existed.” State v. Zanter ,
535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). Despite very weak components in
the warrant application, it contains sufficient information to survive our deferential review.
Veselka reasonably questions the strength of Agent Woolever’s affidavit submitted
as his warrant application. Vague and conclusory statements without sufficient information
for a judge to independently evaluate the conclusions do not support a finding of probable
cause. See State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998). According to the affidavit,
Agent Woolever’s confidential reliable informant “believes that Veselka possibl[y]
4
manufactures methamphetamine on occasion.” (Emphasis added.) The affidavit does not
disclose how the informant came to believe what is represented, and the informant’s
supposed belief—merely that it is possible that Veselka manufactures methamphetamine
on occasion—is , at most, tissue thin. Likewise void of any evidentiary weight is the
affidavit’s conclusory declaration that “Deputy Gillund stated that Veselka has been
suspected of manufacturing methamphetamine in the recent past thr[ough] other ongoing
investigations being conducted by Deputy Gillund.” That declaration provides more
questions than answers: “Has been suspected” by whom? On what factual basis? To what
degree? And how recently? The affidavit goes on to declare that “Deputy Gillund also
stated that Brady Veselka is possibl[y] in possession of a handgun.” That declaration has
two flaws rendering it useless as support for the search warrant: first, the subject is whether
it is probable, not merely possible, that a search will reveal evidence of a crime; and second,
the issuing judge must be informed of the circumstances supporting the probability, not
merely of the hearsay statement by one officer of another’s naked belief. These vague and
conclusory representations lack any probative information and, considered separately or
taken as a whole, they fall far short of providing probable cause for the search warrant.
The affidavit does, however, include one statement of sufficient evidentiary quality:
“The CRI stated that the CRI while at the Brady Veselka residence and within the past
72 hours has observed a quantity of methamphetamine and paraphernalia items used to
ingest methamphetamine.” Probable cause justifying a search warrant exists when the
issuing judge, considering the supporting affidavit as a whole, can reasonably conclude
that “there is a fair probability that contraband or evidence of a crime will be found in a
5
particular place.” Souto, 578 N.W.2d at 747 (quotation omitted). That the CRI personally
observed methamphetamine and ingestion paraphernalia in Veselka’s ho me within the
previous three days provided a substantial basis of a fair probability that a search would
reveal illegal drugs or drug paraphernalia.
Veselka says that the CRI was unreliable. Applying some of the six common
considerations for testing an informant’s reliability satisfies us that the district court acted
within its discretion by issuing the warrant: (1) whether the informant is a civilian
unassociated with criminal activity; (2) whether the informant has previously given correct
information to the police; (3) whether the police sufficiently corroborated the informant’s
tip; (4) whether the informant came forward voluntarily; (5) whether a controlled purchase
was made; and (6) whether the informant made a statement against interest. State v. Ward,
580 N.W.2d 67, 71 (Minn. App. 1998). The affidavit declared that the CRI had “provided
true and accurate information” to the BCA previously and that the CRI had made at least
one controlled buy under Agent Woolever’s oversight. The agent corroborated information
from the CRI’s tip, including Veselka’s address, a detailed description of the outside of his
house, and a description of Veselka personally. These circumstances support the CRI’s
reliability, and we see nothing that would call the CRI’s reliability into doubt.
Veselka challenges the notion that the affidavit established the CRI’s reliability ,
citing Wiley, 366 N.W.2d at 268, for the notion that more is required. The Wiley court did
opine a preference for specific language describing an informant’s accuracy, but we are
guided by Wiley’s holding, which is that an affiant’s statement that “the informant ha[d]
been used over several years successfully” was sufficient for the judge “to credit the
6
informant’s story.” 366 N.W.2d at 269. The district court judge here had similar support to
credit the CRI’s tip. Veselka also maintains that the information corroborated by the agent
was not enough to support the CRI’s reliability , but corroboration of part of a tip can
suggest the reliability of the tip as a whole. State v. Siegfried, 274 N.W.2d 113, 115
(Minn. 1978). This applies even to corroboration of minor details, like the identification of
the defendant’s name, residence, and vehicle. See Wiley, 366 N.W.2d at 269.
Veselka argues finally that the information in the affidavit was too stale to support
the warrant by the time the agent executed it. Probable cause cannot rest on stale
information and exists only if items related to criminal activity may likely be found at the
time of the search. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review
denied (Minn. Jan. 14, 1985). We are persuaded that the warrant was executed in a
sufficiently timely fashion to overcome Veselka’s staleness challenge.
Whether the warrant-supporting information was stale by the time of the warrant’s
execution depends on the circumstances as evaluated with “flexibility and common sense.”
Id. The affidavit asserts that the agent learned on May 3 that the CRI saw drugs and drug
paraphernalia inside Veselka’s house at some point within the previous three days . The
agent then received the warrant on May 5 and executed it on May 10, so the span between
the CRI’s observation and the agent’s search was at most ten days. A key factor in
considering staleness is “whether the property sought is easily disposable or transferable.”
State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). But even stolen items that are “easily
transferable” may be “of enduring utility to their taker” such that he might keep “one of
the items for personal use.” State v. Flom, 285 N.W.2d 476, 477 (Minn. 1979).
7
Under this reasoning, Minnesota courts have, for example, declined to invalidate
searches based on staleness in various circumstances: a gap of about four weeks between
the observation of stolen traffic signs and the home search did not render the observation
stale in Gerdes v. State, 319 N.W.2d 710, 712–13 (Minn. 1982); a gap of two years between
the observation of photographs, books, and magazines depicting child pornography and the
home search did not render the observation stale in Jannetta, 355 N.W.2d at 194; a gap of
six days between the information that the defendant had marijuana in his home and the
home search did not render the information stale in State v. Yaritz, 287 N.W.2d 13, 17
(Minn. 1979); and a gap of six weeks between the information that the defendant was
growing marijuana in his home and the home search did not render the information stale in
State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987). Guided by this caselaw, we
similarly will not invalidate the search here on staleness grounds. Drug-ingestion
paraphernalia is the sort of multiple-use, nonperishable property that the district court
might reasonably infer will remain on the person of a methamphetamine user or in his
home, or both, for a period of ten days.
II
Veselka also challenges the no-knock authorization in the search warrant. To justify
a no-knock entry, the warrant affidavit must establish the officer’s reasonable suspicion
that an announced entry would lead to the destruction of evidence or risk harm to the
entering officers. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). If the circumstances
do not warrant a no-knock entry, evidence seized during the search should be suppressed.
Id. We review de novo whether the circumstances warranted a no -knock entry when the
8
material facts are not in dispute. Id. The facts here are not disputed, so we consider
Veselka’s challenge de novo.
The circumstances justified the no-knock component of the warrant. We consider
whether the affidavit identified objective support f or an officer’s reas onable suspicion
justifying a no-knock entry. Id. The affidavit declared that Veselka was convicted of assault
in 2016 and has two convictions for possessing firearms illegally, the latest occurring in
2015. Every reasonable officer anticipates that a resident will resent officers entering his
home and invading his privacy by rifling through his personal possessions without his
consent. When the officer learns that, additionally, the resident has a relatively recent
history of criminal assault and illegal-firearm possession, the officer has reason to suspect
that announcing the entry would substantially increase his risk of harm. The threat here
was sufficiently particularized to support a no-knock entry.
Affirmed.