State v. Barajas, No. A11–0983.

Citation817 N.W.2d 204
Decision Date23 July 2012
Docket NumberNo. A11–0983.
PartiesSTATE of Minnesota, Respondent, v. Marco Antonio Leon BARAJAS, Appellant.
CourtCourt of Appeals of Minnesota

OPINION TEXT STARTS HERE

Syllabus by the Court

Because a person has a reasonable expectation of privacy in the concealed contents of a cellular telephone, a search of the contents by the police is constitutionally unreasonable unless the police obtain a warrant or demonstrate the existence of a recognized exception to the warrant requirement.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Michelle Lawson, Acting Clay County Attorney, Moorhead, MN, for respondent.

David W. Merchant, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by WRIGHT, Presiding Judge; ROSS, Judge; and MUEHLBERG, Judge.*

OPINION

WRIGHT, Judge.

Appellant challenges his conviction of first-degree possession of methamphetaminewith intent to sell. He argues that the district court committed reversible error by (1) denying his motion to suppress evidence seized by the police during an unlawful search of his cellular telephone, (2) admitting in evidence three photographs recovered from his cellular telephone that were irrelevant and unfairly prejudicial, and (3) admitting in evidence drug-courier-profile testimony. We affirm.

FACTS

On September 30, 2009, the landlord of a rental property in Moorhead reported a possible trespasser living in an unrented apartment unit on the property. Moorhead Police Officers Joshua Schroeder and Nicholas Wiedenmeyer responded to the report, proceeded to the apartment, and knocked on the apartment door. Appellant Marco Antonio Leon Barajas answered. Barajas spoke Spanish, spoke little English, and expressed difficulty understanding the officers. While at the apartment, Officer Schroeder contacted United States Border Patrol Agent Dan Dill because Barajas was unable to provide proof of his citizenship or lawful presence in the United States. After briefly speaking with Barajas via cellular telephone, Agent Dill, who is proficient in Spanish, advised Officer Schroeder that Barajas was unlawfully residing in the United States. At Agent Dill's direction, Officer Wiedenmeyer detained Barajas and removed him from the apartment.

Shortly thereafter, Officer Schroeder observed a red flip-style cellular telephone on the kitchen counter in the apartment. Officer Schroeder opened the cellular telephone and searched the digital photographs stored in the telephone's internal memory for the purpose of identifying the telephone's owner. While doing so, Officer Schroeder observed a photograph of Barajas lying on a bed with a large amount of money. Officer Wiedenmeyer subsequently re-entered the apartment with two additional cellular telephones that he recovered from a pat-down search of Barajas. Officer Schroeder gave Officer Wiedenmeyer the red cellular telephone, and Officer Wiedenmeyer transported Barajas to the Clay County Jail. Officer Wiedenmeyer also contacted the border patrol agents who were en route to the jail and advised them of the photograph found on Barajas's red cellular telephone.

Border patrol agents subsequently transported Barajas from the jail to the Border Patrol Station in Grand Forks, North Dakota. Agent Dill asked Barajas why he had three cellular telephones. Barajas responded that he “liked to collect them.” Agent Dill presented Barajas with a form, written in English, granting consent to the border patrol agents to search Barajas's cellular telephones. Barajas signed the consent form. Agent Dill searched the red cellular telephone and found three photographs: one that depicts Barajas lying on a bed with a large amount of money surrounding him and two that depict only money. When asked about these photographs, Barajas explained that it was his son's “play money.” Agent Dill also searched Barajas's wallet, which contained two bank deposit slips for $4,150 and $4,300 in cash respectively.

Border patrol agents advised the Moorhead police that Barajas may be involved in drug trafficking. Based on this information, Officers Schroeder and Wiedenmeyer returned to the apartment where Barajas, a trespasser in the apartment, had been detained, and the property owner consented to a search of the apartment. The police recovered five plastic bags containing a white crystal substance, a digital scale, powdered milk, salt, an empty sugar container, motor oil, razor blades, an “SD card” that can be physically moved from one cellular telephone to another for the purpose of transferring data, a fourth cellular telephone, and packaging materials, including tin foil, plastic bags, plastic wrap, and electrical tape.

On October 1, 2009, Barajas was charged with first-degree possession of methamphetamine with intent to sell, a violation of Minn.Stat. § 152.021, subd. 1(1) (2008). Barajas moved to suppress the three photographs that the police obtained from his cellular telephone.1 At the suppression hearing that followed, Officer Schroeder testified that he found the cellular telephone on the kitchen counter, observed no identifying material on the outside or on the initial “home screen,” and searched the photographs stored in the cellular telephone's internal memory to identify its owner. Officer Schroeder also testified that, at that time, the police did not suspect that Barajas was involved with controlled substances.

On March 18, 2010, the district court granted Barajas's suppression motion in a written order. The district court concluded that an “intentional invasion into the contents of an electronic device” by the police, which requires an “intentional search ... or other deliberate key strikes,” must be supported by either a warrant or an exception to the warrant requirement. The district court also concluded that Officer Schroeder's warrantless search of Barajas's cellular telephone did not fall under the search-incident-to-arrest exception to the warrant requirement because no exigency existed, Barajas had already been removed from the premises at the time of the search, and the telephone was not contraband, an instrumentality of trespassing, or a weapon affecting officer safety.2

In January 2011, one day before the start of trial, the state moved the district court to reconsider the admissibility of the three suppressed photographs in light of the written consent form that Barajas signed of which the district court previously was unaware.3 Barajas contended that these photographs constitute “fruit of the poisonous tree” and should remain suppressed because Agent Dill did not obtain Barajas's consent until after Officer Schroeder unlawfully searched his cellular telephone. On reconsideration, the district court denied Barajas's motion to suppress, concluding that the signed consent form justified Officer Schroeder's warrantless search. The district court did not address Barajas's “fruit-of-the-poisonous-tree” argument or his assertion that Agent Dill did not obtain Barajas's consent until after Officer Schroeder searched the cellular telephone.

At the jury trial that followed, the police testified about items recovered from the apartment where they arrested Barajas. A forensic scientist with the Minnesota Bureau of Criminal Apprehension (BCA) testified that the five plastic bags contained methamphetamine with a combined weight of 387.2 grams. Another BCA employee testified that Barajas's fingerprint was on one of the bags of methamphetamine. Moorhead Police Officer Adam Torgerson testified that methamphetamine has a higher street value in Moorhead than in other parts of the United States or Mexico, and that the street value of methamphetamine increases when “cutting agents” are added, such as dry milk, salt, or sugar. In addition, Officer Torgerson explained the significance of the prepaid cellular telephones, SD card, packaging materials, and bank receipts recovered from Barajas and the apartment by explaining how and why those items are used by drug traffickers. The state also presented the three photographs obtained from Barajas's cellular telephone.

Barajas testified that he arrived in the Moorhead area in early September 2009, stayed in a hotel, and was paid in cash for work he performed at a horse park. Barajas began living in the apartment three days before he was detained. He typically left the apartment only to purchase groceries and to work from approximately 6:00 a.m. until approximately 4:00 or 5:00 p.m. He suspected that other people entered the apartment when he was away. Also, on one occasion when two men attempted to enter the apartment while Barajas was present, Barajas locked them out. Barajas testified that the methamphetamine recovered from the apartment did not belong to him and that he was not carrying it for anyone else. He explained that he used the plastic bags and food items to prepare food, the razor blades for work, and the prepaid cellular telephones because he lacked the identification required to purchase a telephone contract. He also testified that the money in the photographs on his cellular telephone belonged to a man named Frank. A Spanish-speaking special agent with the Department of Homeland Security testified that Barajas had advised him that Frank paid Barajas to deposit money into bank accounts.

The jury found Barajas guilty of first-degree possession of methamphetamine with intent to sell, and the district court sentenced Barajas to 74 months' imprisonment. This appeal followed.

ISSUES

I. Did the district court err by denying appellant's motion to suppress evidence obtained by the police during a warrantless search of appellant's cellular telephone?

II. Did the district court err by admitting in evidence photographs recovered from appellant's cellular telephone that were irrelevant and unfairly prejudicial?

III. Did the district court err by admitting in evidence drug-courier-profile testimony?

ANALYSIS
I.

The...

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  • State v. Eichers
    • United States
    • Minnesota Court of Appeals
    • December 2, 2013
    ...unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.”); State v. Barajas, 817 N.W.2d 204, 215 (Minn.App.2012) (recognizing that constitutional protection extends to “sealed letters or packages in the mail”), review denied (Minn. O......
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    • May 13, 2020
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  • Schlangen v. State
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    ...testify about relevant techniques employed by other drug dealers to explain the "significance of certain evidence or the defendant's conduct." Id. (citing State v. Williams, 525 538, 548 (Minn. 1994)). Here, the trooper testified that he had training in "narcotics interdiction" which involv......
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    • May 4, 2015
    ...v. Harris, 590 N.W.2d 90, 105 (Minn.1999) (applying the exception to drug found in the defendant's jacket sleeve); State v. Barajas, 817 N.W.2d 204, 219 (Minn.App.2012) (denying use of exception to photographs from a cellular phone), review denied (Minn. Oct. 16, 2012); State v. Lembke, 509......
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3 books & journal articles
  • Search and seizure of electronic devices
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
    • April 1, 2022
    ...it, the later search must be attenuated to dissipate the taint of the previous unlawful conduct. For example, in State v. Barajas , 817 N.W.2d 204 (Ct. App. Minn. 2012), police illegally searched a cell phone and then later obtained the defendant’s consent to search. The court held that the......
  • Search and seizure of electronic devices
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2020 Contents
    • July 31, 2020
    ...it, the later search must be attenuated to dissipate the taint of the previous unlawful conduct. For example, in State v. Barajas , 817 N.W.2d 204 (Ct. App. Minn. 2012), police illegally searched a cell phone and then later obtained the defendant’s consent to search. The court held that the......
  • Search and Seizure of Electronic Devices
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2017 Contents
    • August 4, 2017
    ...it, the later search must be attenuated to dissipate the taint of the previous unlawful conduct. For example, in State v. Barajas , 817 N.W.2d 204 (Ct. App. Minn. 2012), police illegally searched a cell phone and then later obtained the defendant’s consent to search. The court held that the......

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