State v. Brand, No. A03-1823 (MN 8/31/2004)
| Decision Date | 31 August 2004 |
| Docket Number | No. A03-1823.,A03-1823. |
| Parties | State of Minnesota, Respondent, v. Joel Cisarsky Brand, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Hennepin County, File No. 02073703.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, (for respondent).
Steven J. Meshbesher, Meshbesher & Associates, P.A., (for appellant).
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
UNPUBLISHED OPINION
Appellant challenges his conviction of possession of pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2002), and his sentence, arguing that (1) evidence obtained from his residence should have been suppressed, along with all evidence derived therefrom, because the search warrant was not supported by a sufficient nexus between the crime and appellant's residence; and (2) the district court abused its discretion in sentencing appellant to a stay of execution rather than a stay of imposition. We affirm.
On August 28, 2002, Sergeant Mark Swanson applied for a search warrant to search appellant Joel Cisarsky Brand's residence. The supporting affidavit referenced information gathered from the alleged victim's mother, an interview with the alleged victim, a report by Jennifer Anderson (a child interview specialist), 24 interviews of Kenny Park current and former employees, and Sgt. Swanson's own training and experience. The supporting affidavit stated the following, in relevant part:
The victim is an 8 yr old male — (NWN)[.] The suspect is a Park Director at Kenny Park [i]n Minneapolis, his name is Joel Brand.
. . . .
On July 24, 2002 a police report was written by Sgt. Schultz . . . [who] talked to the mother of (victim) NWN, who attends classes at Kenny Park. The information received for that report shows that Kenny Park Director Joel Brand, calls NWN "baby cheeks, and pretty eyes." . . .
. . . .
On 8-8-02 a CornerHouse interview was conducted by Jennifer Anderson . . . . In her written evaluation report Anderson writes, "results of the interview indicate that abuse appears to have occurred." The victim reported fondling of his breasts, penis, and buttocks as well as digital penetration of his anus[.]
In the CornerHouse report, NWN named Brand as the suspect.
The penetration and fondling was done while the victim was sitting on Brand's lap. Brand used his finger to fondle the victim's penis and inserted his finger into the victim's anus. It is unclear as to how many times these events occurred or when they happened. They did occur at Kenny Park.
NWN reported that [B]rand told him not to tell anyone or Brand would go to jail and lose his job.
. . . .
Your affiant has learned that Brand appears in the changing area of the park building when children are changing their clothing and putting on their swimming suits. According to a staff member, Brand then made inappropriate comments about the children and their physical appearance, including their buttocks.
Brand also has appeared in the classroom to assist in putting sunscreen on the children in the park classes. The sunscreen was applied to the inner portion of the children's legs by Brand. This was done for multiple days in a row during the summer time, when it was not Brand's job to do so.
According to the police report, Brand has remarked to a park staff member that he is not allowed to be around children, and he has been told to stay away from children.
In the course of this investigation I have interviewed the interim Kenny Park Director Lori Jorgenson. I was told that Brand took many pictures of events and children at the park. The pictures [were] taken with a Polaroid camera, a film camera, and a digital camera. Brand would e-mail digital pictures from his work computer to his home computer, and from his home computer to his work computer.
I have also learned from the park staff that Brand had set up an unauthorized hidden wireless camera system, which he used to monitor the park building from his desk. This camera system consisted of a wireless camera, a receiver, and a monitor.
. . . .
Your affiant wishes to execute a search warrant at the home of Joel Cisarsky Brand . . . . Your affiant has over 13 years of law [e]nforcement experience. Through my training and experience it is known that sex offenders who abuse children will keep and maintain pornography, which excites them and fosters their deviant fantasies. These offenders will keep either magazine or pictoral photographs, VHS videotapes, or use the computer internet to store, distribute and meet potential juvenile victims.
Your affiant has reason to believe that Brand was e-mailing photographic images of park patrons from Kenny Park, back and forth from his work desk computer and his home computer.
. . . .
Your affiant requests a search to be conducted at the home of Joel Cisarsky Brand in order to find evidence which will tend to show [that] he is sexually attracted to juvenile males, and that he has committed these sexual acts upon victim NWN. Your affiant wishes to seize all illegal pornography and to examine the computer hard drive and or disks which may have images of juveniles engaging in sexual acts or poses.
Your affiant also wishes to search Brand's residence for any handwritten letters, diaries or notebooks that may contain sexual writings of fantasies involving juvenile males, and recovering any information on other potential juvenile males.
A district court judge determined that probable cause existed and signed the warrant. The warrant authorized the police to seize the following, among other things:
All [p]hotographs of any children registered in any Kenny Park class or event.
All homemade or commercially produced pornography which depicts juvenile males posing or engaging in sexual acts, naked or partially naked.
All homemade or commercially produced pornography on film or VHS videotape that depicts juvenile males engaging in sexual acts.
Digital camera equipment, video tapes or any other items that may be used for the possession and distribution of child pornography.
Computer systems, including but not limited to, the main computer box, monitors, scanners[,] modems, and/or other peripheral devices.
Data contained on either hard drives or removable media, to include deleted files, e-mail files that may show the distribution of child pornography, chat line logs that may identify children being enticed on line or the distribution o[f] child pornography.
On August 29, 2002, the search warrant was executed at appellant's residence. Police seized VHS videotapes, floppy disks, a laptop computer, and two additional computer hard drives. On September 27, 2002, Sgt. Swanson applied for a second search warrant on the computers that were seized from appellant's home. The supporting affidavit for the second search warrant included much of the same information supplied in the first supporting affidavit, along with the information found from the VHS tapes and computer disks seized under the first warrant1 and information from Sgt. Jane Moore, a member of the Minneapolis Police Department Sex Crimes Unit and the Minnesota Internet Crimes Against Children Task Force. The second warrant was authorized and executed. A search of appellant's computers revealed more than 200 images of child pornography.
Appellant was charged with three counts of possession of pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2002), and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002). The criminal-sexual-conduct charge was later dismissed. Appellant moved to suppress all evidence seized from his home and all evidence seized pursuant to subsequent search warrants, claiming that the initial search warrant did not establish probable cause to search his home.2 The district court denied appellant's motion, concluding that the search warrant was adequately supported by probable cause. After a bench trial, appellant was found guilty on all three counts of illegal possession of pornographic works. The district court sentenced appellant to a stay of execution of all three counts, concurrently for a period of five years with conditions. This appeal follows.
The first issue is whether the district court abused its discretion by concluding that the search warrant authorizing the search of appellant's residence and seizure of certain items was supported by probable cause. The United States and Minnesota Constitutions provide that warrants must be supported by probable cause. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. "A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched." Minn. Stat. § 626.08 (2002).
We will uphold a district court's decision to issue a search warrant if the record contains a substantial basis to conclude that the application provided probable cause. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). In this context, a substantial basis is indicated by a fair probability, given the totality of the circumstances, "that contraband or evidence of a crime will be found in a particular place." 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)). This includes not only a search for fruits, instrumentalities, or contraband, but also a search for "mere evidence." Warden v. Hayden, 387 U.S. 294, 306-07, 87 S. Ct. 1642, 1650 (1967). The reviewing court should give great deference to the issuing judge's determination of...
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