This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Adam Andrew Foth,



Filed November 21, 2006


Shumaker, Judge


Dakota County District Court

File No. KX-04-3722



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul MN 55101; and


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, W. 1560 Highway 55, Hastings, MN 55033 (for respondent)


Kenneth M. Bottema, 2915 S. Wayzata Blvd., Suite 101, Minneapolis, MN 55405 (for appellant)



            Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges one of two warrants issued to search his home on the ground that the challenged warrant lacked probable cause.  Because the unchallenged warrant produced the evidence upon which appellant’s controlled-substance conviction was based, we affirm.


            Employees of a restaurant told the police that appellant Adam Andrew Foth had paid with counterfeit bills there.  On this information, the police obtained a warrant to search Foth’s home.

            The police encountered Foth outside his home, arrested him, and then searched the home.  They did not find evidence of counterfeiting but they did discover large amounts of marijuana.  The police then obtained a second warrant to search Foth’s home for drugs and related evidence, and they seized the marijuana.

            The state charged Foth with possession of marijuana.  He moved to suppress the evidence on the ground that the first search warrant was not supported by probable cause.  The district court denied the motion and, after a Lothenbach proceeding, the court found Foth guilty.  On appeal, Foth challenges the validity of the first search warrant.


The search warrant Foth challenges is that issued to allow the police to search his home for evidence of counterfeiting.  The supporting affidavit for that warrant indicated that a restaurant manager had reported that a person identified as Foth had passed counterfeit bills at the restaurant; that the police confirmed that Foth was the person who passed the bills; and that Foth lived at a particular residence and drove a car that belonged to his brother.

Foth argues that there “must be a nexus between the alleged [criminal activity] and the place [to be] searched” before a search warrant for that place may properly be issued.

On appeal, we give great deference to the issuing court’s probable-cause determination.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  We review the search-warrant application to determine whether the issuing court had a “substantial basis” to conclude that probable cause existed.  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)).  The issuing court has a substantial basis to conclude that probable cause for a search warrant exists when there is “fair probability that contraband or evidence of a crime will be found in a particular place.”  Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332) But the affidavit in support of the application for the search warrant must contain “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).

There are no facts in the affidavit submitted to obtain the first search warrant that show directly or by reasonable inference that Foth’s use of counterfeit money in a restaurant was connected in any way to his home.  Thus, the first search warrant was not supported by probable cause.

However, Foth’s conviction is based on the evidence seized under the second search warrant.  He has not challenged that warrant nor has he argued, or even intimated, that the invalidity of the first warrant invalidated the second.  Although there could be a question of the status of the second warrant given the invalidity of the first, we cannot make assumptions, nor can we create arguments the parties have not made.  Issues not raised, briefed, or argued on appeal are deemed waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  Because Foth has failed to raise any issue as to the admissibility of the evidence upon which his conviction was based, we are compelled to affirm that conviction.