This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-766

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mitchell Lee Gabrelcik,

Appellant.

 

 

Filed December 26, 2000

Affirmed

Schumacher, Judge

 

Anoka County District Court

File No. KX997806

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.


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

SCHUMACHER, Judge

Appellant Mitchell Lee Gabrelcik appeals his conviction of possession of a firearm by an ineligible person, contending that the authorities lacked probable cause for the search warrant by which they seized stolen property, including guns, from a storage unit Gabrelcik rented. We affirm.

FACTS

On August 21, 1999, Gabrelcik's mother's house was burglarized. Gabrelcik's mother told Blaine police officers that she believed Gabrelcik had committed the theft. Gabrelcik was estranged from the family and had been barred from the property for more than a year. According to Gabrelcik's mother, Gabrelcik was angry that she had sold some of her property to the city of Blaine.

At the time, Gabrelcik was working as a mechanic for Hagford Auto Sales and living on those premises in a van owned by Hagford. The officers went to Hagford Auto Sales to speak with Gabrelcik, but Gabrelcik would not open the van. The officers obtained permission from Hagford to enter the van. They searched the van, but did not find any of the stolen items.

On August 23, 1999, Hagford fired Gabrelcik. When he fired Gabrelcik, Hagford demanded the return of company uniforms issued to Gabrelcik. Gabrelcik told Hagford that he would retrieve the uniforms from his storage unit across the street.

On September 2, 1999, Detective Lapham spoke with Hagford about the uniforms. Hagford complained that he hadn't yet received the uniforms and asked for assistance in getting them from the storage unit where Gabrelcik told him they were. Detective Lapham recommended that Hagford file a theft report, and Hagford did so.

Detective Lapham went across the street to the storage unit company and verified that they had indeed rented a storage unit to Gabrelcik. After doing so, he sought a search warrant for the storage unit rented to Gabrelcik, including in the affidavit supporting the application details about the burglary of Gabrelcik's mother's house and Hagford's complaint about the unreturned uniforms. The magistrate issued the warrant and Detective Lapham executed it the same day. Detective Lapham found in the storage unit various items later identified as having been stolen from Gabrelcik's mother's house, including some guns. Detective Lapham did not find the work uniforms in the storage unit, but Hagford received them back two days later.

The district court denied Gabrelcik's motion to suppress the evidence found pursuant to the search warrant. At trial, Gabrelcik stipulated that he was ineligible to possess a firearm by reason of a previous felony conviction. The jury convicted Gabrelcik of possession of a firearm by a person ineligible to possess one.

D E C I S I O N

Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, 10. The court's task on appeal is to "ensure that the issuing judge had a 'substantial basis' for concluding that probable cause existed." State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citation omitted). To determine whether the issuing court had a substantial basis for finding probable cause, we look to the "totality of the circumstances." State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Under this test,

The issuing judge "is simply to make a practical, commonsense 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. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).

In reviewing an issuing judge's determination of probable cause for a search warrant, "great deference" should be paid by a reviewing court. Gates, 462 U.S. at 236, 103 S. Ct. at 2331; State v. Jannetta, 355 N.W.2d 189, 194 (Minn. App. 1984), review denied (Minn. Jan 14, 1985). But see State v. Gabbert, 411 N.W.2d 209, 212 (Minn. App. 1987) (deference to the magistrate is not boundless) (citing United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984)). In determining whether probable cause existed, both the issuing judge and the reviewing court may consider only information presented in the application for the search warrant. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996). The resolution in doubtful or marginal cases should be "'largely determined by the preference to be accorded to warrants.'" State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085, 2089 (1984)).

The affidavit in support of the application for the search warrant sought evidence concerning two incidents: the burglary at Gabrelcik's mother's home, and Gabrelcik's failure to return his work uniforms. The portion of the affidavit concerning the burglary read as follows:

Ms. Gabrelcik reported she believed her son, Mitchell Lee Gabrelcik DOB: 5-11-63 was the person responsible for the theft. According to Ms. Gabrelcik, Mitchell has been extremely upset that she has sold the family property to the City of Blaine and has been openly angry saying he did not want that to occur. She told officers she felt Mitchell stole the safes to obtain the property abstracts. She said it would also explain how entry was gained into the home with no sign of force. She further said Mitchell has been excluded from her home and not allowed on the property for some time.

 

The issuing judge thus knew that Gabrelcik was angry at his mother concerning the property sale, that safes containing property abstracts were missing, that the burglary was accomplished without forced entry, and that Gabrelcik's mother had reason to believe that Gabrelcik could effect such entry. The affidavit also informed the judge that Gabrelcik had been living in a van on his former employer's property because he had nowhere else to live, and that Gabrelcik had rented a storage locker. When viewed with the deference we accord to warrants, Albrecht, 465 N.W.2d at 109, and in light of all the circumstances, the affidavit made a sufficient showing to provide probable cause for the issuance of the warrant.

The affidavit also discussed the circumstances surrounding Gabrelcik's failure to return his work uniforms to his former employer:

On 9-2-99, Your affiant also interviewed Bradley Hagford and learned Mitchell had been fired on 8-23-99. At the time Mitchell was fired, Mr. Hagford demanded the immediate return of the company uniforms consisting of 8 pair of work pants and 8 work shirts with Mitch and Hagford Auto Sales patches affixed to them. Mr. Hagford said the value of the uniforms is $280.00. Mitchell told Mr. Hagford the uniforms were in his storage locker and he would go and get them. As of 9-2-99, Mr. Hagford has not seen or heard from Mitchell. Mr. Hagford feels Mitchell is depriving him of his property. Mr. Hagford did subsequently file a report of the theft of uniforms to the Spring Lake Park Police Department.

 

The affidavit establishes probable cause to believe the uniforms were in the storage locker, because Gabrelcik told Hagford they were there. It also establishes probable cause to believe that Gabrelcik had violated Minn. Stat. 609.52, subds. 2(1), (5)(a) (1998), which provide that a person commits theft if he or she "retains possession of moveable property * * * with * * * intent to exercise temporary control only [and] the control exercised manifests an indifference to the rights of the owner or the restoration of the property to the owner." Gabrelcik had been fired, promised to return the uniforms, but then disappeared for ten days. The judge had probable cause to believe that Gabrelcik was exercising control over the uniforms in a way that manifested indifference toward their return to his employer. The judge therefore had probable cause to issue the warrant to search the storage locker for the uniforms.

The facts presented in the affidavit concerning either of the incidents would have justified the issuance of the warrant. Furthermore, officers executing a valid search warrant are empowered to seize items they discover inadvertently that they have reasonable suspicion to believe are evidence of other crimes. State v. DeWald, 463 N.W.2d 741, 747-48 (Minn. 1990); State v. Carr, 361 N.W.2d 397, 400 (Minn. 1985) (police lawfully executing search warrant may seize stolen property not described in warrant). Thus, even if the facts in the affidavit concerning the burglary had not justified a search warrant, the police would have been authorized to seize the items stolen from Gabrelcik's mother's home while searching the storage unit for the work uniforms that Gabrelcik said were there.

The district court did not err in denying Gabrelcik's motion to suppress the evidence seized pursuant to the search warrant.

Affirmed.