This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Joel Cisarsky Brand,
Filed August 31, 2004
Hennepin County District Court
File No. 02073703
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
Appellant challenges his conviction of possession of pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2002), and his sentence, arguing that (1) evidence obtained from his residence should have been suppressed, along with all evidence derived therefrom, because the search warrant was not supported by a sufficient nexus between the crime and appellant’s residence; and (2) the district court abused its discretion in sentencing appellant to a stay of execution rather than a stay of imposition. We affirm.
On August 28, 2002, Sergeant Mark Swanson applied for a search warrant to search appellant Joel Cisarsky Brand’s residence. The supporting affidavit referenced information gathered from the alleged victim’s mother, an interview with the alleged victim, a report by Jennifer Anderson (a child interview specialist), 24 interviews of Kenny Park current and former employees, and Sgt. Swanson’s own training and experience. The supporting affidavit stated the following, in relevant part:
The victim is an 8 yr old male – (NWN)[.] The suspect is a Park Director at Kenny Park [i]n Minneapolis, his name is Joel Brand.
. . . .
On July 24, 2002 a police report was written by Sgt. Schultz . . . [who] talked to the mother of (victim) NWN, who attends classes at Kenny Park. The information received for that report shows that Kenny Park Director Joel Brand, calls NWN “baby cheeks, and pretty eyes.” . . .
. . . .
On 8-8-02 a CornerHouse interview was conducted by Jennifer Anderson . . . . In her written evaluation report Anderson writes, “results of the interview indicate that abuse appears to have occurred.” The victim reported fondling of his breasts, penis, and buttocks as well as digital penetration of his anus[.]
In the CornerHouse report, NWN named Brand as the suspect.
The penetration and fondling was done while the victim was sitting on Brand’s lap. Brand used his finger to fondle the victim’s penis and inserted his finger into the victim’s anus. It is unclear as to how many times these events occurred or when they happened. They did occur at Kenny Park.
NWN reported that [B]rand told him not to tell anyone or Brand would go to jail and lose his job.
. . . .
Your affiant has learned that Brand appears in the changing area of the park building when children are changing their clothing and putting on their swimming suits. According to a staff member, Brand then made inappropriate comments about the children and their physical appearance, including their buttocks.
Brand also has appeared in the classroom to assist in putting sunscreen on the children in the park classes. The sunscreen was applied to the inner portion of the children’s legs by Brand. This was done for multiple days in a row during the summer time, when it was not Brand’s job to do so.
According to the police report, Brand has remarked to a park staff member that he is not allowed to be around children, and he has been told to stay away from children.
In the course of this investigation I have interviewed the interim Kenny Park Director Lori Jorgenson. I was told that Brand took many pictures of events and children at the park. The pictures [were] taken with a Polaroid camera, a film camera, and a digital camera. Brand would e-mail digital pictures from his work computer to his home computer, and from his home computer to his work computer.
I have also learned from the park staff that Brand had set up an unauthorized hidden wireless camera system, which he used to monitor the park building from his desk. This camera system consisted of a wireless camera, a receiver, and a monitor.
. . . .
Your affiant wishes to execute a search warrant at the home of Joel Cisarsky Brand . . . . Your affiant has over 13 years of law [e]nforcement experience. Through my training and experience it is known that sex offenders who abuse children will keep and maintain pornography, which excites them and fosters their deviant fantasies. These offenders will keep either magazine or pictoral photographs, VHS videotapes, or use the computer internet to store, distribute and meet potential juvenile victims.
Your affiant has reason to believe that Brand was e‑mailing photographic images of park patrons from Kenny Park, back and forth from his work desk computer and his home computer.
. . . .
Your affiant requests a search to be conducted at the home of Joel Cisarsky Brand in order to find evidence which will tend to show [that] he is sexually attracted to juvenile males, and that he has committed these sexual acts upon victim NWN. Your affiant wishes to seize all illegal pornography and to examine the computer hard drive and or disks which may have images of juveniles engaging in sexual acts or poses.
Your affiant also wishes to search Brand’s residence for any handwritten letters, diaries or notebooks that may contain sexual writings of fantasies involving juvenile males, and recovering any information on other potential juvenile males.
A district court judge determined that probable cause existed and signed the warrant. The warrant authorized the police to seize the following, among other things:
All [p]hotographs of any children registered in any Kenny Park class or event.
All homemade or commercially produced pornography which depicts juvenile males posing or engaging in sexual acts, naked or partially naked.
All homemade or commercially produced pornography on film or VHS videotape that depicts juvenile males engaging in sexual acts.
Digital camera equipment, video tapes or any other items that may be used for the possession and distribution of child pornography.
Computer systems, including but not limited to, the main computer box, monitors, scanners[,] modems, and/or other peripheral devices.
Data contained on either hard drives or removable media, to include deleted files, e-mail files that may show the distribution of child pornography, chat line logs that may identify children being enticed on line or the distribution o[f] child pornography.
On August 29, 2002, the search warrant was executed at appellant’s residence. Police seized VHS videotapes, floppy disks, a laptop computer, and two additional computer hard drives. On September 27, 2002, Sgt. Swanson applied for a second search warrant on the computers that were seized from appellant’s home. The supporting affidavit for the second search warrant included much of the same information supplied in the first supporting affidavit, along with the information found from the VHS tapes and computer disks seized under the first warrant and information from Sgt. Jane Moore, a member of the Minneapolis Police Department Sex Crimes Unit and the Minnesota Internet Crimes Against Children Task Force. The second warrant was authorized and executed. A search of appellant’s computers revealed more than 200 images of child pornography.
Appellant was charged with three counts of possession of pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2002), and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002). The criminal-sexual-conduct charge was later dismissed. Appellant moved to suppress all evidence seized from his home and all evidence seized pursuant to subsequent search warrants, claiming that the initial search warrant did not establish probable cause to search his home. The district court denied appellant’s motion, concluding that the search warrant was adequately supported by probable cause. After a bench trial, appellant was found guilty on all three counts of illegal possession of pornographic works. The district court sentenced appellant to a stay of execution of all three counts, concurrently for a period of five years with conditions. This appeal follows.
The first issue is whether the district court abused its discretion by concluding that the search warrant authorizing the search of appellant’s residence and seizure of certain items was supported by probable cause. The United States and Minnesota Constitutions provide that warrants must be supported by probable cause. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched.” Minn. Stat. § 626.08 (2002).
We will uphold a district court’s decision to issue a search warrant if the record contains a substantial basis to conclude that the application provided probable cause. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). In this context, a substantial basis is indicated by 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) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). This includes not only a search for fruits, instrumentalities, or contraband, but also a search for “mere evidence.” Warden v. Hayden, 387 U.S. 294, 306-07, 87 S. Ct. 1642, 1650 (1967). The reviewing court should give great deference to the issuing judge’s determination of probable cause and not subject that determination to a rigorous de novo review. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). This court is not to engage in a “hypertechnical examination of the affidavit.” State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (quotation omitted). Cases that are doubtful should be resolved in favor of the issuance of a warrant. See State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
An affidavit fails to support probable cause when it includes no “details . . . that would permit the issuing magistrate to independently evaluate” whether probable cause exists. State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998). Probable cause exists if a supporting “affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search.” State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994). It is undisputed here that if the initial search warrant was not supported by probable cause, then all evidence seized as a result of that search, along with all evidence seized as a result of the subsequent searches, should be suppressed. See State v. Akers, 636 N.W.2d 841, 844 (Minn. App. 2001).
Police Officer’s Training and Experience
Appellant argues that it was improper for the district court to rely on Sgt. Swanson’s declarations, claiming that they were based only on mere suspicion because the record does not show that Sgt. Swanson has any training or experience specific to sexual crimes or sexual offenders. Police officers may rely on training and experience to draw inferences in their affidavits. Richardson, 514 N.W.2d at 579. An inference drawn by police officers must give rise to more than “[m]ere suspicion.” State v. Skoog, 351 N.W.2d 380, 381 (Minn. App. 1984). An issuing judge may not base a finding of probable cause on an investigator’s “wholly conclusory statement.” Gates, 462 U.S. at 239, 103 S. Ct. at 2332. But the issuing judge “is entitled to draw common-sense and reasonable inferences from the facts and circumstances” set forth in the affidavit. State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985). And a police officer’s training and experience is a proper factor to consider in making a probable-cause determination. State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004) (concluding that probable cause to search a house for evidence of child pornography exists when the totality of the circumstances, including the training and experience of the affiant and the nature of the crime, establishes a fair probability that child pornography will be found in the house), review denied (Minn. Apr. 20, 2004); State v. Miller, 666 N.W.2d 703, 714 (Minn. 2003).
While a police officer may include details regarding his training and experience in order to help the district court draw its conclusions, there is no requirement that he do so. Here, Sgt. Swanson had ample evidence to make the inference drawn reasonable and more than a mere suspicion. Therefore, the district court did not err in considering Sgt. Swanson’s opinion based on his training and experience as part of its probable cause determination.
Appellant also argues that the district court abused its discretion because Sgt. Swanson’s supporting affidavit did not include any factual evidence that provided a nexus between the alleged sexual conduct and the search of appellant’s home. The Minnesota Supreme Court “has historically required a direct connection, or nexus, between the alleged crime and the particular place to be searched.” Souto, 578 N.W.2d at 747. In determining whether a nexus exists, the issuing judge must consider the following factors: “the type of crime, the nature of the items sought, the extent of the suspect’s opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items.” Harris, 589 N.W.2d at 788 (quoting State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984)). “[I]nformation linking the crime to the place to be searched and the freshness of the information” are also relevant. Souto, 578 N.W.2d at 747. In the case of searching for “mere evidence,” finding a nexus means there must be probable cause “to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden, 387 U.S. at 307, 87 S. Ct. at 1650.
Appellant asserts that the only link between appellant’s residence and Kenny Park, where the alleged sexual abuse occurred, is the statement that appellant e-mailed digital pictures taken of events and children at the park from his work computer to his home computer, and because the affidavit does not allege that the pictures e-mailed were sexual in nature or included images of the victim, this evidence does not provide a sufficient nexus. Appellant also asserts that Brennan is distinguishable because in Brennan, child pornography was first found on the defendant’s work laptop, and the defendant admitted to storing the images of child pornography on that computer. Brennan, 674 N.W.2d at 202-03. In contrast, appellant asserts there were no facts presented here, other than Sgt. Swanson’s opinion, that supported the inference that appellant was involved with child pornography.
We conclude that the supporting affidavit did include factual evidence that provided a sufficient nexus. First, there is no requirement that child pornography must be found in one place (i.e., work) before an inference can be made that it will be found in the suspect’s home. See United States v. Terry, 305 F.3d 818, 820, 823 (8th Cir. 2002) (upholding a warrant to search defendant’s home for child pornography after police found photo albums with pictures of young children with sexual captions and a videotape depicting inappropriate touching of a young girl). In making a probable-cause determination, courts must consider the nature of the crime “and the normal inferences as to where the suspect would normally keep the items [sought].” Harris, 589 N.W.2d at 788. Here, appellant was originally being investigated for criminal sexual conduct. A criminal-sexual-conduct case is, similar to a child-pornography case, “the type of case in which courts may properly consider an affiant’s training and experience in making the probable-cause determination because the court could reasonably draw an inference that the suspect would keep [any proof of his inappropriate conduct or proof of his sexual attraction to juvenile males] in a place considered safe and secret, like the home.” See Brennan, 674 N.W.2d at 206 (citing United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002) (holding that affiant’s statement, based on her experience, that pedophiles maintain their child pornography in a secure place provided sufficient nexus to the defendant’s home)).
Further, in considering the nexus factors, the issuing judge “is entitled to draw common-sense and reasonable inferences from the facts and circumstances” set forth in the affidavit given the totality of the circumstances. Eggler, 372 N.W.2d at 15. While taking pictures of children in a park or e-mailing pictures between home and work computers may seem innocent, we must view these facts in light of the others. See Wiley, 366 N.W.2d at 268 (stating that even if each component, standing alone, is insufficient to establish probable cause, “the components viewed together may reveal . . . an internal coherence that gives weight to the whole”) (quotation omitted).
First, NWN implicated appellant in his own statement, as did Jennifer Anderson. Second, several witnesses stated that appellant participated in unusual behavior with the children, including appearing in the children’s changing room, making inappropriate comments about the children’s physical appearances, and applying sunscreen to the inner portion of children’s legs when it was not his job to do so. Third, the interim park director stated that appellant took many pictures of park events, including pictures of children who frequented the park, and e-mailed those pictures to his home computer. Fourth, digital photos are easily downloaded onto computers and easily sent to other computers via e-mail. Fifth, Sgt. Swanson stated that based upon his 13 years’ experience in law enforcement, he knew that sex offenders who abuse children will keep and maintain pornography that excites them and fosters their fantasies. And sixth, criminal sexual conduct is a crime commonly committed in secret. Considering the nature of the crime, it is reasonable to infer that any evidence of the crime itself or evidence of a sexual attraction to juvenile males would be kept in a safe and secretive place like the home.
The factors supporting the district court’s determination of probable cause in this case may not have supported a finding of probable cause to search appellant’s home if viewed individually. But viewing the evidence under the “totality of the circumstances” and with deference given to the issuing court’s determination, the facts establish a substantial basis to believe that there was a fair probability that evidence of criminal sexual conduct or child pornography would be found in appellant’s home. Therefore, we conclude that the district court did not abuse its discretion in finding probable cause and issuing the search warrant.
Beyond the Scope of the Warrant
Appellant also argues that the items seized from his computers were beyond the permissible scope of the warrant because there were no means used to confine the search to searching by file name, directory, sub-directory, specific key words or phrases, or particular types of files. “Generally, the seizure of some items beyond those specified in a search warrant does not alone require suppression of those items lawfully seized.” State v. Bonynge, 450 N.W.2d 331, 337 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). “Only when the officers show a flagrant disregard for the terms of a warrant should all the evidence seized be suppressed.” Id.
Here, the second search warrant authorized a search of the computer hard drives for “deleted files, email files that may show the distribution of child pornography, chat line logs that may identify children being enticed on line or the distribution o[f] child pornography.” And Detective Kathryn Bushman’s report reflects that she did place some limits on the search parameters. Therefore, the district court did not err by denying suppression of the evidence as beyond the scope of the warrant because the police were authorized to search the hard drives for child pornography, and Bushman did not flagrantly disregard the scope of the search warrant.
The next issue is whether the district court abused its discretion in sentencing appellant to a stay of execution instead of a stay of imposition. A reviewing court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).
Appellant argues that the district court abused its discretion in imposing a stay-of-execution sentence because appellant has no prior criminal history and the crime at issue is assigned a low severity level. The sentencing guidelines commission “recommends that stays of imposition be used as the means of granting a stayed sentence for felons convicted of lower severity offenses with low criminal history scores.” Minn. Sent. Guidelines III.A.1. But the comments also state that “[t]he use of either a stay of imposition or stay of execution is at the discretion of the judge.” Minn. Sent. Guidelines cmt. III.A.101; see also State v. Webber, 382 N.W.2d 567, 568 (Minn. App. 1986) (stating that the district court has broad discretion in sentencing and concluding that there was no “compelling reason” to interfere with that discretion). Appellant has not presented a compelling reason to interfere with the district court’s proper exercise of its discretion.
 One of the computer disks revealed stories about juvenile males being punched in the stomach and descriptions of their penis and “balls” as they were being struck. Two of the VHS videotapes showed appellant lying naked hitting himself hard in the stomach with certain objects. The videotapes also depict appellant masturbating.
 After appellant had been charged, Sgt. Swanson obtained and executed three other search warrants, all pertaining to appellant’s employment, volunteer, and disciplinary records.
 Appellant cites State v. Secord, 614 N.W.2d 227, 231 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000), for the proposition that there was not sufficient information in the affidavit to indicate that appellant had pornography in his home. We conclude that Secord is distinguishable. There, the district court refused to consider the police affiant’s opinion based on his training and experience, but the state waived the argument on appeal. Id. at 229-30. Also, the court noted that the affiant’s opinions were the “only connection” between the materials found in the car and the defendant’s home. Id. at 229. Here, not only did the district court consider Sgt. Swanson’s opinion, but there was also other evidence in the affidavit explaining the link to appellant’s residence.
 We see no reason why the possession of child pornography could not have been offered as evidence in the criminal-sexual-conduct prosecution to convince the jury that appellant is sexually attracted to juvenile males, which would assist the state in proving that appellant sexually assaulted NWN.