State v. Kahn, CX-96-1168

• Decision Date: 29 October 1996
• Docket Number: No. CX-96-1168,CX-96-1168
• Citation: 555 N.W.2d 15
• Parties: STATE of Minnesota, Appellant, v. Leonard Emil KAHN, Respondent.
• Court: Minnesota Court of Appeals

Page 15

555 N.W.2d 15

STATE of Minnesota, Appellant, v. Leonard Emil KAHN, Respondent.

No. CX-96-1168.

Court of Appeals of Minnesota.

Oct. 29, 1996.

Syllabus by the Court

1. A search warrant is invalid when the affidavit accompanying the search warrant application did not establish probable cause to believe that the search of the residence of a defendant charged with illegal drug possession would result in the discovery of evidence and contraband.

2. A "good faith" exception does not apply to the exclusionary rule to the search warrant requirement in Minnesota.

Hubert H. Humphrey, III, Attorney General, St. Paul, for Appellant.

Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, Rochester, for Appellant.

Steven J. Meshbesher, Meshbesher, Birrell & Dunlap, Ltd., Minneapolis, for Respondent.

Considered and decided by AMUNDSON, P.J., and HUSPENI and RANDALL, JJ.

OPINION

HUSPENI, Judge.

Appellant State of Minnesota charged respondent Leonard Kahn with felony possession of marijuana based on evidence seized pursuant to a warrant from respondent's residence. The district court, in granting respondent's motion to suppress, found that the issuing judge did not have probable cause to issue the warrant to search respondent's residence. The district court also refused to apply a "good faith" exception to the exclusionary rule. Because the state has not demonstrated that the omnibus court erred in finding that the warrant application failed to demonstrate probable cause to search respondent's residence and because a "good faith" exception does not apply to the exclusionary rule in Minnesota, we affirm.

FACTS

On February 22, 1996, the Olmsted County Sheriff's Office was informed that respondent had been arrested in Hennepin County after purchasing cocaine. Law enforcement prepared an application for a warrant to search respondent's home and outbuildings in Olmsted County. The affidavit to the warrant application stated:

Your affiant is a Detective with the Olmsted County Sheriff's Office, currently assigned to the South East Minnesota Narcotics Task Force. On 2-22-95, your affiant was informed by Agent Michael Perry of the Bureau of Criminal Apprehension that at approximately 1715 hours, a subject identified as Leonard Kahn was stopped at Lake Street and Cedar Avenue in Minneapolis. Kahn was driving a lease vehicle bearing Minnesota license number 387-KEK. Also in the vehicle was passenger identified as Ted Ohm. A search of the vehicle and occupants was completed after the stop and approximately one ounce of cocaine was found on the person of Leonard Kahn. When questioned by authorities as to the ownership of the cocaine, Ohm stated that anything in Kahn's possession is his and that he, Ohm was just along for the ride.

Your affiant knows through training and experience that an ounce of cocaine is considered more [than] that for personal use and indicates that the person possessing that quantity normally sells the drug in smaller quantities.

Your affiant was informed that the residence of Kahn is Box 85, Elgin, MN. Your affiant checked with Wabasha County Sheriff's office and was informed that the property is located in Olmsted County with an address of * * * Elgin, MN. Your affiant checked with Peoples Coop and found that the person subscribing to the service at that address is Leonard Kahn.

Your affiant requests a nighttime search warrant outside the hours of 7:00 a.m. and 8:00 p.m. to search the premises and all out buildings located at [address] Elgin, MN for items listed in Attachment 1.

The issuing judge signed the warrant to search respondent's residence. Officers executed the warrant and recovered approximately 399 grams of marijuana from an outbuilding on the premises.

The state charged respondent with felony possession of marijuana. At the omnibus hearing, respondent argued that the search warrant application did not demonstrate probable cause to search his residence, and the district court agreed.

ISSUES

1. Has the state demonstrated that the omnibus court erred in finding that the search warrant application failed to establish probable cause for issuing the warrant?

2. Did the omnibus court properly deny the application of a "good faith" exception to the exclusionary rule?

ANALYSIS

Before this court can reverse a district court's pretrial determination, the state must demonstrate

clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Eggler, 372 N.W.2d 12, 14 (Minn.App.1985), review denied (Minn. Sept. 19, 1985) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)). Because the omnibus court used its decision to suppress the evidence as the basis for dismissing the charges against respondent, we find the ruling had a critical impact on the outcome of the trial in this case. Thus, we review only whether the state has demonstrated that the omnibus court erred in finding that the search warrant application failed to establish probable cause and whether the court properly refused to apply a "good faith" exception to the exclusionary rule.

I. Did the search warrant application establish probable cause for issuing the warrant?

A neutral and detached magistrate reviews a search warrant application and arrives at a probable cause determination in a common-sense and practical manner. Eggler, 372 N.W.2d at 15 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). The purpose of the affidavit supporting a warrant application is to provide information from which a magistrate may independently determine whether probable cause exists to issue a search warrant. Eggler, 372 N.W.2d at 15. Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search. State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970). Police officers may rely on training and experience to draw inferences in affidavits, but mere suspicion does not equal probable cause. State v. Richardson, 514 N.W.2d 573, 579 (Minn.App.1994); State v. Skoog, 351 N.W.2d 380, 381 (Minn.App.1984).

Once an issuing court determines that probable cause exists, a reviewing court may not engage in a hypertechnical examination of the affidavit, but should pay great deference to the magistrate's determination. Eggler, 372 N.W.2d at 15; see State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985). A reviewing court must look to the "totality of the circumstances" and not review each component of the affidavit in isolation. Wiley, 366 N.W.2d at 268. We must not look to the information that the police actually had, but rather to the information presented in the affidavit to the magistrate who issued the search warrant. Novak v. State, 349 N.W.2d 830, 831 (Minn.1984) (citing Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)).

In the instant case, the issuing court granted the search warrant based on the following facts: (1) respondent was arrested for possession of one ounce of cocaine in Minneapolis; (2) the affiant, an expert in the field of drug enforcement, stated that he knew "through training and experience that an ounce of cocaine is considered more [than] that for personal use and indicates that the person possessing that quantity normally sells the drug in smaller quantities"; and (3) that respondent resided at the residence to be searched.

The state argues that these facts alone established respondent was a drug dealer and provided a sufficient basis for the issuing judge to find probable cause to grant the warrant to search his residence. The state points to case law in which other courts have not required facts specifically linking drug activity to a dealer's residence because the "nexus," or connection, can be made merely on the basis of affiant-officers' experience that drug dealers ordinarily keep their supply, records, and monetary profits at home. See United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.1993) ("reasonable nexus" can be inferred from affidavit establishing defendant's ongoing drug activity and place to be searched is his residence); United States v. Williams, 974 F.2d 480, 481-82 (4th Cir.1992) (probable cause to find drug paraphernalia in defendant's motel room existed where affidavit established defendant was a drug dealer and had arranged to stay at the motel); United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990) (probable cause to search defendant's home existed where evidence from defendant's truck showed he was a major drug trafficker and agent's past experience established that such traffickers "keep drug paraphernalia, records and money in their homes"); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (magistrate "entitled to draw reasonable inferences" including the inference that drug dealers have drugs "where dealers live"); see also 2 W. LaFave, Search & Seizure § 3.7(d) at 378-79 (1996).

Minnesota has not adopted the reasoning of these cases. We find no probable cause in this case to link respondent's possession of one ounce of cocaine in Minneapolis to possible evidence or contraband at his residence 75 to 85 miles away in Elgin, Minnesota. More than mere possession of an ounce of cocaine is required to demonstrate probable cause that an individual is a dealer and that his home contains evidence or contraband. The affidavit in this case did not provide sufficient facts to infer a reasonable nexus linking the drug possession in Minneapolis to the home in Elgin.

Minnesota requires the state to provide more facts than were provided here in order to link drug activity to an individual's home and to support issuance of a warrant. See, e.g., State v. Cavegn, 356 N.W.2d 671, 674 (Minn.1984) (sufficient connection between illegal items and place to be searched, or "object-place nexus,"...