Boyd Beccue, Kandiyohi County Attorney, C.J. Crowell, First Assistant Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for appellant)

Michael F. Cromett, McMahon Cromett Criminal Defense P.L.L.P., 2499 Rice Street, Suite 260, Roseville, MN 55113 (for respondents)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]

During the execution of a search warrant for drugs and drug paraphernalia at the residence of Jose Luis Garza and Angela Lynn Garza, police found cocaine, marijuana, a stolen handgun, and an ammunition magazine. Jose and Angela Garza were subsequently charged with violations of Minn. Stat. § 152.021, subds. 1(1), 3(a) (1998), Minn. Stat. § 609.53, subd. 1 (1998), and Minn. Stat. § 609.52, subd. 3(1) (1998). The trial court suppressed evidence of the stolen handgun and ammunition, and dismissed the accompanying charge of receiving stolen property. On appeal, the state argues the drug search warrant authorized seizure of the weapons. We affirm.

The state argues that in the search warrant application and supporting affidavit, sufficient probable cause was set forth to believe that a weapon or ammunition would be found in the residence. Although the affiant stated she had "good reason to believe" weapons would be found on the premises, she did not discuss facts supporting her conclusion that weapons were on the premises. Under these circumstances, the search warrant application does not set forth probable cause that weapons would be found because it contains mere conclusions without the necessary evidence. See Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 2333 (1983) (concluding sufficient evidence, not conclusions of others, must support probable cause determination); Novak v. State, 349 N.W.2d 830, 831 (Minn. 1984) (noting reviewing court can only look at information presented in affidavit).

In the alternative, the state argues the stolen handgun and ammunition were in plain sight or would have inevitably been discovered during the lawful search for drugs and drug paraphernalia. See State v. Richards, 552 N.W.2d 197, 203-04 n.2 (Minn. 1996) (concluding "inevitable discovery" doctrine allows police to seize evidence "if the police would have inevitably discovered the evidence, absent their illegal search"); State v. DeWald, 463 N.W.2d 741, 747 (Minn. 1990) (noting "plain view" doctrine allows police, once lawfully in position to see incriminatory evidence, to seize evidence if its incriminating nature is "immediately apparent"). The record demonstrates: (1) officers were searching the bedroom for drugs; (2) an officer lifted the mattress and discovered a brown sock which appeared to contain a gun; (3) after removing the gun from the sock, officers called in the serial number and discovered the gun was stolen; (4) another officer searched the closet and found marijuana and the ammunition magazine; and (5) nothing in the search warrant or testimony by police officers suggests violence in the Garzas' suspected drug activities. Given these facts, the state has not clearly and unequivocally shown that the trial court erred in its judgment that officers did not have probable cause at the time of discovery to believe the handgun or ammunition was stolen or evidence of a crime. Thus, we conclude neither the handgun nor ammunition could be seized under the plain view doctrine. See Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 1153 (1987) (concluding officer, lawfully in apartment searching for shooter and weapons, must have probable cause and not just suspicion stereo equipment is stolen before moving equipment to find serial number); In re Welfare of G. (NMN) M., 560 N.W.2d 687, 693 (Minn. 1997) (concluding police did not have probable cause to believe bag contained contraband because its incriminating character was not immediately apparent). As to the state's argument that suppression was improper under the inevitable discovery doctrine, we decline to address an issue that was not presented to the trial court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (noting appellate court generally will not consider matters not argued and considered in the court below). Under these circumstances, the trial court properly suppressed evidence of the stolen handgun and ammunition.

By separate motion, Jose and Angela Garza request an award of attorney fees on appeal. See Minn. R. Crim. P. 28.04, subd. 2(6) (permitting defendant's recovery of reasonable attorney fees and costs incurred in responding to appeal of pretrial order by prosecuting attorney). After reviewing the supporting information, we grant the Garzas' motion for $1,400 in attorney fees and costs.

Affirmed, motion granted.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.