This opinion will be unpublished and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
Sandra Marlene Moelter,
Filed August 20, 2002
Robert H. Schumacher, Judge
Doug Johnson, Washington County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Washington County Government Center, Post Office Box 6, Stillwater, MN 55082 (for respondent)
Lisa Lodin Peralta, Uptown Business Center, 3009 Holmes Avenue South, Minneapolis, MN 55408; and
Earl P. Gray, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Sandra Marlene Moelter appeals the denial of her motion to suppress evidence recovered from her home. She was subsequently convicted of gross misdemeanor possession of gambling paraphernalia. Moelter claims the application for the search warrant failed to establish probable cause, and further, that the applicant failed to inform the issuing judge of material facts. We reverse.
On November 1, 2000, Moelter was involved in an automobile accident. When police arrived, they found illegal gambling materials in her vehicle including seven separate serialized tip tickets/deals and $3,200. As a result of the findings, Detective Brad Allen of the Stillwater Police Department contacted the Minnesota Department of Public Safety Alcohol and Gambling Enforcement Division. Agent William White of that division then presented an application for a warrant to search Moelter's residence and other vehicles for gambling related paraphernalia.
A warrant was issued to search Moelter's person, other vehicles, and her residence. The search of Moelter's residence recovered over 200 untaxed tip board deals and a large quantity of United States currency. While officers executed the warrant, Moelter made an incriminating statement to the police.
Moelter moved to suppress the evidence seized from her residence as well as the incriminating statement claiming the warrant application did not contain sufficient facts to support probable cause that illegal material would be found at her residence. Moelter also claimed the warrant applicant failed to inform the issuing judge that she owned and operated a bar in Hudson, Wisconsin. The state stipulated that when the warrant was issued they were aware of the fact that Moelter owned and managed the Wisconsin bar. The state also stipulated that it did not disclose this fact in the warrant application.
The district court denied Moelter's motion, concluding that based on the totality of the circumstances, a reasonable nexus existed between Moelter's vehicle and her home creating probable cause. The court also ruled that the city's failure to disclose that Moelter owned a bar in Hudson did not constitute a material omission in the warrant application. Moelter was convicted of a gross misdemeanor possession of gambling paraphernalia. We reverse.
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. On appeal, this court reviews 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).
In reviewing an issuing judge’s determination of probable cause for a search warrant, "great deference" should be paid by a reviewing court. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). But see State v. Gabbert, 411 N.W.2d 209, 212 (Minn. App. 1987) ("[d]eference to the magistrate * * * is not boundless") (quotingUnited States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984)).
Even if [a] warrant application [is] supported by more than a 'bare bones' affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant [is] invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances.
Id. (quoting Leon, 468 U.S. at 915, 104 S. Ct. at 3416).
In determining whether probable cause existed, 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). When a warrant request is to authorize the search of a particular location, "there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998).
1. Moelter claims the information presented in the warrant application did not establish probable cause to search her residence. Under the totality of the circumstances presented in the affidavit, there was not a substantial basis to believe that more gambling paraphernalia would be found in Moelter's residence.
The warrant application provided,
Your affiant knows through experience and training that individuals who deal with illegal gambling often keep records, tip board or other illegal gambling paraphernalia and devices, along with money from profits of illegal gambling at their residence. Individuals who are involved in illegal gambling keep the records and money at their residence to prevent theft by employees and customers of money and unused boards. These items are also kept at the residence for the protection and the use by the individual involved with the illegal gambling.
Cases in other jurisdictions have reasoned that a search warrant application may be issued based on the training and experience of the applicant. Kahn, 555 N.W.2d at 18. Minnesota has not adopted this position. Id. In this case, the only link to Moelter's residence was the opinion of the applicant based on his training and experience. We conclude that, under Minnesota law, the training and experience of the police officer, standing alone, is not a sufficient basis to support probable cause for the search warrant.
Without facts, beyond the applicant's training and experience, creating a nexus between Moelter's residence and the materials found, there was not a substantial basis for issuance of the warrant to search her residence.
2. Because our ruling that the search warrant application did not establish probable cause for a warrant, we need not rule on Moelter's claim that the warrant application omitted material facts.