may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Mohammed Ahmed Kattaria,
File No. K3972040
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Asst. Ramsey County Attorney, 50 Kellogg Blvd. W., Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Short, Judge.
After a court trial on stipulated facts, appellant Mohammed Kattaria was convicted of four counts of violation of controlled substance laws. He challenges only the trial court's denial of his motion to suppress, arguing that the warrants to search his residences were not supported by probable cause, that the police search of his vehicle's trunk and the container found in the trunk was not supported by probable cause, and that the failure of police to record his entire interview requires suppression of his statement. Because the police searches were proper and supported by probable cause and because appellant failed to establish a substantial violation of the recording requirement, we affirm.
The parties do not contest the following facts contained in the complaints and police files.
On February 26, 1997, appellant was arrested in Eau Claire, when Wisconsin authorities found him in possession of 27 pounds of marijuana and several ounces of psilocybin mushrooms. Wisconsin officers, after learning that appellant resided with his family at 2410 Galtier in Roseville, informed the Ramsey County Sheriff's Department that appellant admitted he was a drug dealer and that appellant's father had found one and one-half pounds of marijuana at their residence a couple of days before appellant's February 26 arrest. Based on the information provided by the Wisconsin authorities and the affiant officer's knowledge that drug dealers keep narcotics and the instrumentalities of drug dealing in their residences, a warrant was issued to search appellant's residence on February 28, 1997. As a result of the search, Ramsey County officers found one pound of marijuana, psilocybin mushrooms, several scales, and an assault rifle.
At 2:00 a.m. on June 6, 1997, St. Paul police stopped appellant's vehicle because of a loud muffler. After officers approached, they detected the odor of freshly cut marijuana. Based on this odor, officers searched appellant's vehicle. The odor became stronger in the backseat area and officers then searched the vehicle's trunk. When officers searched a white bag found in the trunk, they discovered numerous bags of marijuana totaling 4.2 kilograms.
On July 16, 1997, Hennepin County officers arrested an individual possessing 28 pounds of marijuana who informed the officers that 20 pounds were intended for appellant. An undercover officer arranged with the informant to set up a delivery to appellant. Surveillance officers observed appellant leave his new residence at 2042 Brenner Avenue to meet the undercover officer and the informant at a location in Roseville. The informant transferred the marijuana to appellant; then appellant, the informant, and the undercover officer left in appellant's car to return to the Brenner Avenue residence for payment. When they arrived, Ramsey County officers arrested appellant. Based on what transpired that day and also based on appellant's earlier arrests, officers applied for and were issued a warrant to search appellant's 2042 Brenner Avenue residence where they found a duffel bag containing marijuana, mushrooms, a scale, and $8,700.
After appellant's arrest, he was interviewed at his home. Officers started to record the interview but turned off the tape-recorder after appellant requested that it be turned off. Officers continued to interview appellant for about 20 minutes, without taping the conversation. Appellant told officers that the drugs were his, and he was going to pay for the marijuana by selling it.
1. Appellate review of a district court's probable cause determination is limited, with great deference afforded a court issuing a warrant. See State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). We do not apply de novo review, but instead must "ensure that the issuing judge had a `substantial basis' for concluding that probable cause existed." Id. (quoting State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995)). To determine the existence of probable cause, reviewing courts consider the totality of the circumstances.
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
Appellant argues there was an insufficient nexus between appellant's February 26 arrest in Eau Claire and the search of his home in Roseville two days later. He relies on State v. Kahn, 555 N.W.2d 15 (Minn. App. 1996), where this court affirmed a suppression order, and on Souto, where the supreme court reversed a trial court's order denying suppression. However, both cases differ factually from this case.
The warrant in Kahn was based solely on inferences: that the defendant was a drug dealer because of the amount of cocaine he possessed and that drug dealers keep drugs in their home. 555 N.W.2d at 18. Here, the affidavit contained the following facts in support of the warrant to search appellant's residence: (1) appellant admitted to Wisconsin authorities that he was selling marijuana; and (2) appellant admitted that only a few days before his arrest in Wisconsin, his father found a pound of marijuana in the family's Galtier residence.
In Souto, the supreme court held that evidence seized from a defendant's home must be suppressed because there was "no evidence whatsoever of criminal activity linked to her home." Souto, 578 N.W.2d at 749. Unlike the complete lack of evidence in Souto, appellant admitted to Wisconsin authorities that he was selling marijuana and linked his criminal activity to his residence by admitting that a pound of marijuana was in his home a few days before his arrest. Cf. Souto, 578 N.W.2d at 750 (evidence that ten months earlier package containing drugs was addressed to defendant but never received was too stale to establish probable cause linking residence to criminal activity).
Appellant argues that police manipulated his arrest to enable them to search his residence at 2042 Brenner. The challenged search here, however, was not incident to an arrest as was the case in State v. Hoven, 269 N.W.2d 849 (Minn. 1978), relied on by appellant. See id. at 853 (search incident to pretext arrest is illegal). Instead, this search was pursuant to a warrant issued after appellant's arrest. Appellant's argument that the affidavit fails to establish a nexus between his residence and criminal activity fails because, in addition to other facts that establish probable cause, the affidavit states that appellant told the undercover officer and the informant that the money exchange would occur at 2042 Brenner Avenue. This fact links appellant's criminal activity to his Brenner Avenue residence.
2. We review de novo the issue of whether the June 6, 1997, search of appellant's car violated the Fourth Amendment. See State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988). Once police have probable cause to search an automobile for contraband, they may also search the entire vehicle and any containers they have probable cause to believe hold the contraband. State v. Search, 472 N.W.2d 850, 853 (Minn. 1991) (citing California v. Acevedo, 500 U.S. 565, 580, 111 S. Ct. 1982, 1991 (1991)). Here, the odor of marijuana in appellant's car constituted probable cause for police to search his automobile for further evidence of a crime. See State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984) (detection of odors that indicate illegal activity constitutes probable cause to search automobiles for further evidence of crime, citing State v. Wicklund, 295 Minn. 403, 205 N.W.2d 509 (Minn. 1973)).
3. Appellant argues that statements he made to police when he was interviewed at his home on July 16, 1997, should be suppressed because a part of that interview was not recorded. We recognize that all custodial interrogations must be electronically recorded where feasible. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Only a substantial violation of the recording rule requires suppression. Id. A violation is substantial if: (1) it was gross, wilful, and prejudicial to the accused; or (2) led the accused to misunderstand his legal rights and this misunderstanding influenced the decision to make the statement; or (3) it created a significant risk that an incriminating statement was untrue. Id. at n.5. The legal question of whether there was a substantial violation of Scales is subject to de novo review. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
Appellant argues that the trial court erred by focusing on the fact that no constitutional violation was established. Even if the trial court misinterpreted Scales by requiring a constitutional violation, that error does not require suppression. The purpose of the recording requirement is to assist the court in determining whether an accused understood his rights and voluntarily waived them. See id. Contrary to appellant's argument, the recorded portion of the interview establishes that appellant knew he could refuse to answer police questions and that appellant asked that the recorder be turned off. Appellant failed to establish a substantial violation of the recording requirement. See Scales, 518 N.W.2d at 592.
 The supreme court, "in the exercise of its supervisory power to ensure the fair administration of justice," held that custodial interrogations must be recorded. Scales, 518 N.W.2d at 592.