This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Donald Frederick Wilson,
Roxi Ann Aristeo,
Rock County District Court
File No. 67KX0096
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald R. Klosterbuer, Rock County Attorney, Rock County Courthouse, 204 East Brown, Luverne, MN 56156; and
Terry Scott Vajgrt, Skews Klosterbuer & Vajgrt, Box 538, Luverne, MN 56156-0538 (for respondent)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In appellants Donald Fredrick Wilson and Roxi Aristeo’s consolidated appeal from convictions fifth-degree controlled substance offense, appellants argue that (1) the search warrant was not supported by probable cause; and (2) the controlled substances seized in the search were not in plain view. Because there was probable cause to support the issuance of the search warrant and the officers did not exceed the scope of the warrant, we affirm.
On January 8,2000, a church reported a theft to the Sioux Falls police department. Items stolen from the church included four stained glass windows, sleeping bags, and a collector’s plate. On January 12, 2000, the church learned from a local antique dealer that he had been approached by a woman offering to sell him stained glass windows. The antique dealer recognized the woman from prior dealings and identified her as appellant Roxi Aristeo. She was accompanied by a male, later identified as appellant Donald Wilson. In exchange for the window, the dealer wrote Aristeo a $45 check.
After the sale, the antique dealer recorded the license plate of the car Aristeo was driving and contacted the police department. The owner of the stained glass windows later identified the window received by the antique dealer as one of the windows stolen from the Sioux Falls church. The Sioux Falls police department ran the license plate number and found that the registered owner of the car was Lorraine Wilson. Ms. Wilson was contacted, and she reported that the car was driven by her son Donald Wilson and sometimes by his girlfriend, Roxi Aristeo.
While the Sioux Falls police discovered that Aristeo’s registered address is in South Dakota, they confirmed that Aristeo actually resided in Rock County, Minnesota in a home rented to both Aristeo and Donald Wilson. On February 4, 2000, the Rock County sheriff’s department applied for a search warrant of Aristeo’s Minnesota residence based upon the information received from the Sioux Falls police department. The items listed on the search warrant included (1) a check written by the antique dealer to Aristeo; (2) bank statements showing deposits of checks from the antique dealer or other owners, operators, or employees of pawn shops and/or antique brokers; (3) receipts from pawn shops, antique dealers, or other purchasers relating to the sale of stained glass items; (4) blue sleeping bags; (5) stained glass windows or parts thereof; and (6) a collector’s plate.
The search warrant was issued on February 9, 2000, and executed jointly by the Rock County sheriff’s department and Sioux Falls police on February 14, 2000. In conducting the search, police found and seized (1) a cellophane bag containing white powder found in the dresser in the master bedroom; and (2) a white powder substance contained in a green coffee tin located between two living room chairs. Laboratory testing later identified the seized white powder substance as methamphetamine. In addition, the police recovered stained glass windows, a blue sleeping bag, and a collector’s plate, all matching the description of the items stolen from the church.
Appellants were charged with (1) receiving stolen property in violation of Minn. Stat. § 609.53 and 609.52 subd. 3 (2000) (2); and (2) controlled substance crime in the fifth degree in violation of Minn. Stat. § 152.025, subd. 2 (1) (2000). They moved to dismiss the controlled substance charge on the basis the search warrant lacked probable cause and also moved to suppress the evidence leading to the controlled substance charge. The district court denied appellants’ motions, finding there was probable cause and the seized methamphetamine was in plain view of the officers during the execution of the search warrant.
Both appellants entered into an agreement to waive their right to a trial on the controlled substance charge and proceed by stipulating to facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found the appellants guilty as charged. The appellants appeal from their convictions for fifth-degree controlled substance offense arguing that the district court erred in denying their motions to suppress to dismiss.
We review the district court’s determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). “Substantial basis” in this context means a “fair probability,” given the totality of the circumstances, “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) (quotation omitted). A search warrant must be supported by probable cause, and evidence obtained by a search and seizure that violates a defendant’s constitutional rights is inadmissible. State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978). Great deference is given to the issuing judge’s determination of probable cause, and this court should not subject that determination to de novo review. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). “[T]he resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants.’” State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (citation omitted).
Appellants argue that (1) there was no probable cause to believe that the items listed on the search warrant would be found at appellants’ residence because of the passage of time between the theft and the search; (2) the police did not have a reasonable belief that the antique dealer’s check to Aristeo would be found at her residence because over a month had passed since its issuance; and (3) the warrant failed to meet the particularity requirement.
In reviewing whether probable cause supported a search warrant, a court “may consider only the information presented in the affidavit offered in support of the search-warrant application.” State v. Hochstein, 623 N.W.2d 617, 622 (Minn. App. 2001) (citations omitted). In reviewing the sufficiency of the affidavit, courts must not view each component of the affidavit in isolation. State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991). The affidavit contained ample evidence to justify the search warrant for appellants’ residence. The affidavit stated that (1) a theft occurred; (2) some of the stolen items had surfaced at a local antique shop; (3) the antique dealer purchased a stolen item from a woman identified by the dealer as Aristeo who was accompanied by a man later identified by the dealer as Wilson; and (4) the dealer recorded the license plate of the car Aristeo drove to the antique shop. Moreover, the police corroborated the dealer’s story with the dealer’s positive photo identification of appellants, and the car owner’s identification of the vehicle’s drivers, and matched the license plate number recorded by the dealer to that of the vehicle driven by appellants.
Minnesota courts have required a “direct connection, or nexus, between the alleged crime and the particular place to be searched.” State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998) (citations omitted). While police officers admitted that it was not likely the check or the stolen property would be found at appellants’ residence, courts recognize that suspects normally keep stolen items in their home. State v. Flom, 285 N.W.2d 476, 477 (Minn. 1979). The facts establish that Aristeo sold only one of four stained glass windows stolen from the church, therefore establishing that she retained possession of some stolen goods. The search warrant authorized the search of appellant’s home and vehicle and specifically listed the items sought after in the search. Based upon the facts available to the police, it was reasonable for the police officers to believe that if Aristeo possessed one of the stolen items, others could be reasonably located at her residence.
A stale factual basis may invalidate a search warrant. Souto, 578 N.W.2d at 749-50. In reviewing whether the factual basis for search warrants is stale, the district court looks at factors including whether (1) there is any indication of ongoing criminal activity; (2) items sought are incriminating; (3) the property is easily disposable; and (4) the items sought are of “enduring utility.” State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). A factual basis may not be stale when several months pass between the criminal activity and the search even if the items sought are not of “enduring utility to their taker.” Id.
This is not a case of stale evidence. First, only one month and two days elapsed between the execution of the search and the original criminal activity. Second, the antique dealer told officers he recognized Aristeo because she had sold him items in the past. Third, while the check itself might not be of “enduring utility”, the other stolen goods, which were less easily disposed of and would be incriminating, was of enduring utility. The information was not too stale to support a finding of probable cause. The warrant was particular in its description of the place to be searched and items sought, and therefore officers did not execute a general exploratory search. Given the short time between the offense and execution of the warrant, the warrant was not stale.
Under the totality of the circumstances and given the facts available to law enforcement, there was a fair probability that contraband or evidence would be found in appellants’ residence, and therefore, the district court did not err in issuing a search warrant for appellants’ residence.
A search pursuant to a validly issued warrant is not without limits; the search must not exceed the scope of the search warrant. State v. Willis, 524 N.W.2d 507, 509 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). To determine whether police officers exceeded the scope of the warrant, this court will review the reasonableness of the search under the totality of the circumstances. Id. Items not listed on the search warrant may be properly seized if the seizure falls within a particular exception to the warrant requirement. State v. Streitz, 258 N.W.2d 768, 772 (Minn.1977). Under the “plain view” exception to the warrant requirement, the police may,
without a warrant, seize an object they believe to be the fruit or instrumentality of a crime, provided: (1) [the] police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent.
State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995) (citations omitted). In order for officers to seize unlisted items during the execution of a search warrant, the officers must have “probable cause to believe the property is subject to seizure.” DeWald, 463 N.W.2d at 747. The officer’s suspicion alone is not enough to invoke the plain view exception. Zanter, 535 N.W.2d 631-32. Probable cause is established when “the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime.” Id. (citations omitted).
Appellants argue that the unlisted seized items were not within the officer’s plain view, and therefore, the officers exceeded the scope of the search requiring the court to reverse their convictions.
The district court determined that the unlisted items seized fell under the plain view exception because the police reasonably searched the places where the items were found, the items’ incriminating nature was readily apparent, and the items were in plain view.
Containers located in the residence subject to a valid search warrant may be searched if the officers could reasonably believe that the container could conceal items listed in the warrant. Willis, 524 N.W.2d at 509. (citations omitted). Items listed on the warrant including slips of paper, such as receipts or checks, could reasonably be hidden in either the dresser or the tin. Because the officers reasonably looked in containers located within the allowable search area and in containers that reasonably could have contained the items the officers were searching for, the officers did not exceed the scope of the warrant when they discovered the controlled substances.
Appellants also argue that the police had no probable cause to seize the unlisted items because it was not readily apparent that the items were contraband. It is reasonable to believe that trained police officers would know whether the white powdery substances discovered during their search constituted contraband. Therefore, discovery of the methamphetamine while searching for the receipts and checks did not exceed the scope of the warrant.
Because the officers were in a lawful position, executing a valid search warrant, when they discovered the white powdery substance contained in a cellophane bag and coffee tin that could have reasonably contained the sought- after items, and because it was reasonable for trained police officers to believe that that white powder was contraband, the district court did not err in denying appellants’ motion to suppress and to dismiss.