This opinion will be unpublished and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,
David L. Bartlett,
Filed August 31, 2004
Hennepin County District Court
File No. 02-100891
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Jean Burdorf, Assistant County Attorneys, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Faison T. Sessoms, Jr., 331 Second Avenue South, Suite 840, Minneapolis, MN 55401 (for appellant)
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
Appellant challenges his conviction of being a felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002), arguing that the search-warrant affidavit and other information known to the police when the warrant was issued did not establish a sufficient nexus between the alleged crime and the place to be searched. We affirm.
On December 10, 2002, at approximately 2:52 p.m., St. Paul Police responded to a report of shots fired near the intersection of Carroll Street and Fry Avenue. At the scene, an officer interviewed a witness who claimed to have heard four or five shots coming from the dead end on Fry Avenue, one block south of Carroll Street. The witness stated that after he heard the shots, he saw a black male wearing a black, hooded sweatshirt and black jeans, running northbound on Fry Avenue. At some point the individual stopped, looked east down Carroll Street, and raised in the air what the witness described as a black, semi-automatic pistol. The individual then got into the back seat of a black Chevrolet Tahoe, which sped westbound down Carroll Street. The witness also noted that there were two other black males in the front seat of the Tahoe and that there was a loon pictured on the license plate.
The officer relayed information about the suspect over his radio and, shortly thereafter, recovered six 9 mm shell casings at the scene. He then interviewed a second witness, who told him that, while sitting in his Fry Avenue home, he heard five shots fired outside and went to the window to see what had happened. The second witness said that he saw a black SUV make a U-turn at the Fry Avenue dead end, go north on Fry Avenue, and, after another shot was fired, flee westbound down Carroll Street.
Upon hearing the radio call, another officer saw the suspect vehicle near the intersection of Highway 94 and Cretin Avenue. The officer activated his lights and siren and pursued the Tahoe for a short time, finally stopping it at the Riverside exit at 28th Street. The officer saw a black male, whom he recognized from prior narcotics investigations as Damon Leroy Hunter, exit the rear passenger door of the Tahoe and begin running. The officer noted that Hunter was wearing a black, hooded sweatshirt and that he was carrying a black pistol in his right hand. Hunter was then arrested by a K-9 unit, but no gun was recovered during the search incident to Hunter’s arrest. The address Hunter gave upon arrest – 9030 Blaisdell Avenue – was later confirmed by a check of his driver’s license and prior arrest records.
The following day, December 11, 2002, the affiant, Sergeant Dylanger Flenniken, returned to the scene of the arrest and retrieved a black, semi-automatic pistol, which had been found by a local citizen. Based on this find, the events of the previous day, and Hunter’s confirmed address, Sgt. Flenniken applied for and obtained a warrant to search the home at 9030 Blaisdell Avenue, which Hunter shared with his father, appellant David Leroy Bartlett. Sgt. Flenniken stated in his affidavit that “it is common for persons engaged in criminal activity to store illegal items (or other items tending to show their involvement in criminal activity) at their home.” He asked for the warrant in order to “search th[e] residence for additional evidence which may be possessed illegally and/or show his involvement in this case to include other criminal activity.” The affidavit described the items to be found at the location of the search as:
Firearms and firearm indicia including, but not limited to, long guns, hand guns, ammunition, and firearm manuals.
Packaging, papers, documents and other notes tending to show ownership or transfer of ownership of firearms and/or firearm indicia.
Papers, documents tending to show ownership/occupancy at 9030 Blaisdell Ave. South, Bloomington, Mn.
The St. Paul Police Department executed the warrant on December 13, 2002. Three handguns, ammunition, and a gun manual were discovered, and appellant, a felon restricted from possessing firearms, was subsequently arrested and admitted to owning two guns and ammunition.
Appellant moved to suppress the items discovered at 9030 Blaisdell Avenue. When the motion was denied, appellant waived his right to a jury trial and submitted the matter to the district court on stipulated facts. The district court found him guilty as charged and sentenced him to a five-year stayed sentence, one year in the workhouse, and electronic home monitoring after 40 days. This appeal follows.
A magistrate issuing a search warrant is to make a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit [whether] there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). This court affords great deference to the magistrate’s decision, and we need only determine that there was a substantial basis for the magistrate to determine that probable cause existed. State v. Zanter, 535 N.W.2d 624 (Minn. 1995). Search warrants are strongly preferred by the Fourth Amendment to the United States Constitution, and a deferential standard encourages their continued use by police. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331.
In terms of the contents of the affidavit, the sundry elements contributing to a determination of probable cause must not be parsed out, but considered together. State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). 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.” Wiley, 366 N.W.2d at 268 (quotation omitted). Moreover, the reviewing court must not attempt to undermine the magistrate’s decision by going into a hyper-technical analysis of the contents of the affidavit. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996). Questionable cases should be resolved by the preference accorded to warrants. Wiley, 366 N.W.2d at 268.
Appellant argues that there was an insufficient nexus between the alleged crime and the particular place to be searched. In support, appellant relies on two cases involving search warrants invalidated based on an insufficient nexus. But both cases can be distinguished from the matter before us. The first, State v. Souto, involved an affidavit that was totally bereft of any information tying the state’s evidence to the residence searched. 578 N.W.2d 744, 748-49 (Minn. 1998). Here, Hunter’s address was corroborated by a driver’s license check and by Hunter himself. The second case, State v. Secord, involved a warrant supported by an affiant’s inferential conclusion, after the discovery of pornographic videotapes, that there would be more tapes at the defendant’s residence because the tapes would have to be used or stored there. 614 N.W.2d 227, 230 (Minn. App. 2000). This inference was rejected. Id. at 231.
On the issue of whether an issuing magistrate may reasonably infer that a criminal suspect is concealing evidence of an extraresidential crime in his home, we find instructive the supreme court’s reasoning in State v. Pierce, 358 N.W.2d 672 (Minn. 1984). There, the court upheld a search warrant for firearm ownership materials, reasoning that a residence is “the normal place one would keep extra bullets for his gun and papers showing ownership . . . .” Id. at 674.
The Pierce court listed relevant factors to be considered in determining a showing of probable cause, namely “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 keep the items.” Id. Discharging a firearm in public is a serious crime, posing an immediate danger to innocent bystanders, and public policy requires that punishment be imposed in order to deter future conduct of this sort. Because Hunter had been released on bail and the firearm found by Sgt. Flenniken had not yet been conclusively linked to Hunter, it was imperative for the state to establish such a connection for evidentiary purposes. Moreover, Hunter’s ability to destroy or conceal evidence of his relationship with the firearm was considerable, due to his release. Lastly, it was reasonable for Sgt. Flenniken to infer that ammunition or ownership papers would be kept at his residence. See id.
Appellant also claims that the police had no pressing need to search his home because the instrumentality of the crime had already been found. While it is likely that they had found the firearm used by Hunter, law-enforcement officials are dissuaded from acting on hunches. Appellant’s argument that a less-intrusive means could have been used to link the firearm to Hunter, such as ballistics testing on the shell casings or a registration check on the firearm itself, is valid. But because Hunter was out on bail, the state’s interest in preserving the evidence required the police to act faster than a ballistics test or registration check would have allowed.
Finally, appellant argues that the language used in describing the items to be found at the residence was overbroad, reasoning that the police should only have been looking for indicia of ownership and not additional firearms. This argument ultimately fails, however, because Minnesota has allowed surplus warrant language to be severed from overbroad warrants, in both federal and state court. The Eighth Circuit adopted the severance approach, holding in United States v. Krasaway that “insufficiently particular portions of [a] warrant [may] be severed from the rest . . . [and] only items seized under the invalid portions of the warrant must be suppressed.” 881 F.2d 550, 553 (8th Cir. 1989). Despite this seemingly restrictive holding, the court continues that items in “plain view” may be properly seized during the execution of the warrant. Id. at 553 n.4. The Minnesota Supreme Court has also addressed the issue of severance, holding that the seizure of items listed on the valid portion of the warrant is constitutional and not subject to suppression. State v. Hannuksela, 452 N.W.2d 668, 674 (Minn. 1990). So, even if this court were to conclude that the warrant was overbroad and not sufficiently particular, the discovery of the additional firearms and the ammunition should not be suppressed because they were found during an otherwise valid search that was well within the warrant’s scope.