STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1154

State of Minnesota,
Respondent,

vs.

Thomas Pruden,
Appellant.

Filed September 11, 2007

Affirmed

Minge, Judge

Washington County District Court

File No. KX-05-2955

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

Doug Johnson, Washington County Attorney, Jennifer Bovitz, Assistant County Attorney, Stephanie Sheire, Certified Student Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, Melvin R. Welch, Certified Student Attorney, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges the district court’s order denying his motion to suppress evidence seized as a result of an allegedly deficient search warrant.[1] Because we conclude that the warrant is sufficient to satisfy the particularity requirements of the Fourth Amendment, we affirm.

FACTS

In December 2004, America Online (AOL), an internet service provider, reported an “incident involving Child Pornography,” which was confirmed and documented by the National Center for Missing and Exploited Children. After receiving this information, the Minnesota Internet Crimes Against Children Task Force (ICAC) issued an administrative subpoena to AOL requesting subscriber, account, and billing information related to the incident.

AOL complied with the subpoena request and indicated that the subscriber was Chelsie Pruden and that her billing address was 440 Maple Street, #5, Marine on St. Croix, MN 55047. Upon receiving this information, the ICAC checked Chelsie Pruden’s driver’s license and confirmed that she lived at that address. The ICAC also conducted a reverse check of the phone number received from AOL, which confirmed the address. ICAC forwarded this information to the Washington County Sheriff’s Office.

After receiving this information, Investigator Wayne Johnson called the phone number, asked for Chelsie, and spoke with an unidentified male who said that Chelsie, his wife, was busy feeding their child. Johnson then applied for a warrant to search the apartment that was listed as Chelsie Pruden’s home. The search warrant application included all of the information described above. On January 18, 2005, the district court issued a search warrant authorizing the police to search “440 Maple St. #5 Marine on St. Croix, MN 55047 a multifamily apartment complex” for “[e]lectronic data processing and storage devices, computers, and computer systems . . . .”

That same day, Investigator Johnson and accompanying officers attempted to execute the warrant. Johnson knocked on the door of apartment #5 for a few minutes but did not receive a response. As the officers were preparing to leave the apartment, they overheard a child crying in apartment #4. Johnson knocked on the door of apartment #4 and a woman, whom the officer recognized as Chelsie Pruden from her driver’s license photo, opened the door. She agreed to speak with Johnson. From the doorway, Johnson observed appellant Thomas Pruden (T. Pruden) inside the apartment. Johnson then explained why the officers were at the residence and asked about the discrepancy in the apartment number. Chelsie said that she and her husband had recently moved from apartment #5 to apartment #4. Johnson then gave Chelsie a copy of the search warrant and told the Prudens what the officers were looking for. The couple directed the officers to their computer hard drive, which the officers seized from the apartment.

A Washington County forensic computer technician analyzed the contents of Prudens’ computer hard drive and discovered evidence that T. Pruden intentionally possessed digital images of child pornography. Thereafter, during the course of the interview with Investigator Johnson, T. Pruden admitted that he had images of child pornography on the computer and that he had downloaded pictures approximately 50 times.

In May 2005, T. Pruden was charged with possession of pictorial representations of minors, in violation of Minn. Stat. § 617.247, subd. 4 (2004). T. Pruden moved to suppress the evidence obtained as a result of the allegedly deficient warrant. The district court denied the motion. T. Pruden’s case was submitted to the district court on stipulated facts, and he was found guilty as charged. This appeal follows.

D E C I S I O N

The issue on appeal is whether the district court erred in denying appellant T. Pruden’s motion to suppress evidence obtained as a result of an allegedly invalid search. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

The Fourth Amendment provides that a search warrant shall not issue unless it “particularly describ[es] the place to be searched.” U.S. Const. amend. IV. Both Article 1, Section 10 of the Minnesota Constitution and Minn. Stat. § 626.08 (2006) contain similar provisions. Evidence obtained in violation of the Fourth Amendment’s particularity requirement is subject to exclusion. Mapp v. Ohio, 367 U.S. 643, 655, 81
S. Ct. 1684, 1691 (1961).

“[O]fficers executing a search warrant are, and ought to be, strictly limited to searching only the premises particularly described in the warrant. It is constitutionally impermissible to search one place under a warrant describing another place or to seize one item under a warrant naming another item.” State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978). The purpose of the particularity requirement is to prevent general exploratory searches and to “minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate.” 2 Wayne R. LaFave, Search and Seizure § 4.5, at 513 (3d ed. 1996).

But notwithstanding these important purposes, a warrant’s erroneous description of the place to be searched does not necessarily invalidate a search conducted on the basis of that warrant. See State v. Gonzales, 314 N.W.2d 825, 827 (Minn. 1982). We view search warrants in a “common sense and realistic fashion.” State v. Doust, 285 Minn. 336, 339, 173 N.W.2d 337, 340 (1969) (quotation omitted); see also U.S. v. Melancon, 462 F.2d 82, 94 (5th Cir. 1972) (“The standard for determining whether a search warrant complies with Constitutional requirements is one of practical accuracy rather than technical nicety.”) (Quotation omitted.). “The test for determining the sufficiency of the description of the premises is whether the description is sufficient so that the executing officer can locate and identify the premises with reasonable effort with no reasonable probability that (other premises) might be mistakenly searched.” Gonzales, 314 N.W.2d at 826 (quotation omitted).

Courts have upheld a search notwithstanding the accompanying search warrant’s erroneous description of the place to be searched. The Minnesota Supreme Court’s decision in Gonzales and our decision in State v. Kessler, 470 N.W.2d 536 (Minn. App. 1991), are representative. In Gonzales, after a reliable informant showed police a residence containing stolen property, police applied for and received a warrant to search “41 Wood Street.” 314 N.W.2d at 827. But when the officer executing the warrant went to the same residence pointed out by the informant, he learned that the address was 41 Delos, not 41 Wood. Id. Despite the warrant’s inaccuracy, the officer executed the warrant, seized the stolen property, and arrested Gonzales. Id. The district court suppressed the seized property and Gonzales’s subsequent confession. Id.

On appeal, the supreme court reversed, concluding that even though the officer learned that the warrant’s address was inaccurate when executing the warrant, “there was no reasonable probability that [the officer] was searching the wrong house.” Id. The court based its conclusion on several facts: “(a) [the officer] knew . . . which house was [Gonzales’s] house, (b) the house did have the number 41 on it, (c) the house was a corner house bounded by Wood Street on one side, and (d) there were no other houses bearing the number 41 in the neighborhood.” Id.

Our more recent decision in Kessler presented similar circumstances. In Kessler, an officer applied for and received a warrant to search “1521 216th Street North, Forest Lake.” 470 N.W.2d at 537 (quotation omitted). But the officer executing the warrant went to Kessler’s home, located at “5821 216th Street North, Forest Lake.” Id. As a result of the search, the officer seized evidence of Kessler’s controlled-substance crimes. Id. at 538. Thereafter, the district court suppressed this evidence, finding that the search warrant violated the Fourth Amendment’s particularity requirement because it incorrectly described Kessler’s address. Id.

On appeal, we reversed, concluding that “the mistaken address on the warrant [did] not relate to the propriety of the warrant.” Id. at 539. We based our conclusion, in part, on the fact that the officers who applied for and executed the warrant “had seen the Kessler house when meeting the informant.” Id. As in Gonzales, “the agents executing the warrant personally knew which premises were intended to be searched, and . . . [t]he premises which were intended to be searched were, in fact, those actually searched.” Id. (quotation omitted). Furthermore, we characterized the warrant’s inaccuracy as a “clerical error” and noted: “This case presents no indication of subterfuge or intent to deceive the court or Kessler. No home was mistakenly searched. Kessler suffers no prejudice from the wrong address on the warrant.” Id.

This court has also found that a warrant that failed to identify any apartment was defective and the search was improper. See In re Welfare of T.L.K., 487 N.W.2d 911 (Minn. App. 1992). In T.L.K., we said that “[t]he general rule is that a search warrant for a multiple occupancy building is invalid unless it describes the particular unit to be searched with sufficient definiteness.” Id. at 913 (quotation omitted). But we noted that such a warrant may be upheld if the “police, acting reasonably, do not learn until executing the warrant that the building is a multiple occupancy building.” Id. (quotation omitted). The circumstances in T.L.K. did not justify such an exception because the current occupants of the apartment were new, the warrant was to search the entire duplex and a specific person, and there was no evidence that the specific person named in the warrant lived in the apartment or was even known to the current occupant. Id. at 912-14.

The foregoing cases are instructive in deciding this case. In Gonzales and Kessler,the officers knew the actual persons and premises to be searched before executing the inaccurate warrant. Here, Investigator Johnson knew the identity of the person whose apartment he intended to search, the apparent street address, and at least a recent apartment number. With the driver’s license photograph, Johnson could recognize Chelsie Pruden. Once he recognized Chelsie and she confirmed that the family had recently moved from apartment #5 to #4, there was no reasonable probability that the officers would search the wrong apartment. In fact, at that point Inspector Johnson presumably knew that the search warrant should have identified the premises as apartment #4.

Investigator Johnson’s search of apartment #4 was conducted in a restrained fashion. He explained what the officers were looking for and both appellant T. Pruden and his wife directed them to the computer that was in the apartment. Although the Prudens were told by the officers that they had a warrant and the state does not claim that the search was voluntary, the record indicates that the Prudens knew that the officers were confused about the apartment number and the Prudens cooperated. Under the circumstances, the search cannot be characterized as random or exploratory.

We also note that the affidavit on which the warrant was based conspicuously identified the occupant of the apartment. In issuing the search warrant, the magistrate concluded that there was probable cause to permit the search of Chelsie Pruden’s residence. The officers conducted only such a search. As in Kessler, here there is no indication of subterfuge on the part of the officers and T. Pruden. While the warrant appears to have been technically defective, and it may have been most prudent for the officers to apply for a new warrant listing the correct address, when viewed in the totality of the circumstances, there was not a reasonable probability that innocent persons were exposed to an unreasonable search. See Doust, 285 Minn. at 340, 173 N.W.2d at 340.

The case before us is similar to T.L.K in that both are apartment searches. But in T.L.K., no apartment unit was identified on the warrant. 487 N.W.2d at 912. In fact, the search in T.L.K. was random, the discovery of drugs was accidental, and the defendant was not the person the police were seeking. Id.

In contrast to T.L.K., here the specificity was greater. The officers’ investigative conduct was focused on particular occupants. The officers had attempted to accurately identify the correct apartment number. ICAC had received Chelsie Pruden’s address from AOL, confirmed that address using driver’s license records, and conducted a reverse check of the provided phone number. Investigator Johnson then called this phone number and asked for Chelsie. Each of these investigative actions minimized the risk of an unreasonable search. But because Prudens had moved, the wrong number was on the warrant.

Because under the circumstances there was no reasonable probability that the officers were searching the residence of the wrong family, and because the search was not random or exploratory, we conclude that the particularity requirements of the Fourth Amendment do not invalidate the search. Because we conclude that the search was not defective, we do not reach the state’s alternative argument that exigent circumstances justified a warrantless search of T. Pruden’s apartment.

Affirmed.

Dated:

[1] T. Pruden moved to withdraw his appellate claim that he was entitled to a jury trial. This motion was granted by a special-term panel of this court. Accordingly, we do not address that argument.