This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2136
State of Minnesota, Respondent,
vs.
Jeremy Fredrick Aguirre, Appellant.
Filed November 23, 2015 Affirmed Cleary, Chief Judge
Lincoln County District Court File No. 41-CR-13-174
Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul, Minnesota; and
Glen Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent)
Deborah Ellis, Susan Lynn Johnson, Ellis Law Office, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Schellhas, Judge; and Klaphake,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
CLEARY, Chief Judge
On appeal from his conviction of second-degree controlled substance crime,
illegal possession of a firearm, and theft of electrical services, appellant argues that the
district court erred in denying his motion to suppress evidence obtained from the
execution of two search warrants. Appellant argues: (1) the first warrant was
improvidently issued as it lacked probable cause, allowed a general exploratory search,
and was issued for a misdemeanor investigation; (2) the second search was conducted
prior to issuance of the second warrant and it too allowed a general exploratory search;
and (3) the Receipt, Inventory and Return exposed irregularities in the execution of the
warrant that required suppression of the evidence. We affirm.
FACTS
On October 10, 2013, two employees of Lyon-Lincoln Electric Cooperative went
to appellant’s residence to collect a past-due payment for electrical services. Appellant
did not answer when the employees knocked, so they proceeded to disconnect the power,
at which time they discovered that the meter seal had been cut and an unauthorized
bypass had been installed on the meter. The employees contacted the Lincoln County
sheriff from appellant’s residence to report the bypass, and the sheriff began investigating
the apparent theft that day. When the sheriff interviewed appellant that evening,
appellant said he knew nothing about electricity, did not know when the bypass was
2 placed on the meter, and did not know who installed it. Appellant also stated that he lives
alone, with the exception of occasional weekend visits with his minor child at the
residence. During the investigation, the sheriff learned that appellant’s criminal history
included felony convictions for controlled substance offenses.
On October 14, 2013, the sheriff applied for and received a search warrant
authorizing him to look for items related to the theft of electrical services in appellant’s
residence, his detached garage, and “several dilapidated motor vehicles and motor
homes” on the property. On October 15, 2013, the sheriff and five other law enforcement
officers executed the search warrant at 12:35 p.m. No one answered when they knocked,
so officers entered the house, announced their presence, and stated that they had a search
warrant. Officers encountered appellant in the house just after they entered. They then
performed a cursory search of the house to make sure no one else was present. At that
time, officers observed firearms and what appeared to be marijuana in plain view.
Appellant was arrested for being a felon in possession of a firearm and was transported to
jail.
The sheriff left appellant’s property to prepare an application for a second warrant
that would authorize a search for narcotics, drug paraphernalia, and firearms. He faxed
the application to the issuing judge from his office and spoke with the judge on a
recorded phone line at 2:09 p.m. The sheriff testified that the issuing judge said the
search warrant was going to be issued and that he received it via fax before the officers
executed the second warrant at 2:54 p.m. Time stamps on the faxed search warrant from
3 the issuing judge indicate that it was not sent to the sheriff until 3:38 p.m. that day. But
upon review, the district court judge (who was also the issuing judge) found the sheriff’s
testimony regarding the time he received the warrant to be more persuasive than the fax
machine time stamp.
Officers executed the second search warrant, seized items listed in the first and
second warrants, and prepared and filed a single inventory of all items seized pursuant to
both search warrants. On October 17, 2013, the state charged appellant with felony
possession of a firearm, unlawful drug possession, and theft of electrical services.
Appellant challenged the legality of the first search warrant and the legality of the seizure
of items pursuant to the second search warrant. In a brief submitted after the omnibus
hearing on those issues, appellant specifically argued that the first and second warrants
failed to state with particularity the places to be searched; that evidence should be
suppressed based on the sheriff’s failure to sign the Receipt, Inventory and Return and
have it notarized; and that the time stamp on the second warrant showed that the search
took place before the warrant was issued, making it a warrantless search and seizure.
The district court held that the first and second warrants described with
particularity the location to be searched; that probable cause existed for the issuance of
both warrants; that the Receipt, Inventory and Return was lawfully executed; and that
both warrants were lawfully executed. A jury subsequently found appellant guilty on all
five counts against him. Appellant filed this appeal from the judgment of conviction and
sentencing.
4 DECISION
First Warrant
Appellant argues that the first search warrant was improvidently issued because it
lacked probable cause, allowed a general exploratory search, and was issued for a
misdemeanor investigation. Appellant raises the same general issue that he litigated in
the district court, but on appeal, he bases his argument on new theories.
In general, this court declines to review issues not raised before the district court,
including constitutional questions of criminal procedure. Roby v. State, 547 N.W.2d 354,
357 (Minn. 1996). And where an appellant asks this court to review an issue raised and
decided in district court, the appellant may not “obtain review by raising the same general
issue litigated below but under a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). However, “constitutional rights can be asserted on appeal when the
interests of justice require consideration of such issues, when the parties have had
adequate time to brief such issues, and when such issues are implied in the lower court.”
Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).
At the contested omnibus hearing, appellant challenged the legality of the first
warrant on the theory that the warrant application failed to describe with particularity the
locations to be searched. He did not challenge the particularity of the items to be
searched and seized. Appellant now argues that the warrant application did not provide a
substantial basis to find probable cause to issue the first warrant; the supporting affidavit
did not establish that a theft of electricity had actually occurred; the affidavit listed
5 generic items that could be found on almost any property in the area; and the search
warrant allowed a general exploratory search. Appellant focuses on the items to be
seized, arguing that the warrant failed to describe them with sufficient particularity.
Appellant contends that the language in the first search warrant application is overbroad
and reveals that the sheriff “did not have a reasonable, much less strong, suspicion that
the items sought . . . would be in any particular place.” This court will address
appellant’s argument that the application failed to state with particularity the items to be
searched, because it is entwined with appellant’s argument that the application failed to
state with particularity the locations to be searched.
The United States and Minnesota Constitutions require that search warrants
particularly describe the place to be searched, as well as the person or things to be seized.
U.S. Const. amend. IV; Minn. Const. art. 1, § 10. “The uniformly applied rule is that a
search conducted pursuant to a warrant that fails to conform to the particularity
requirement of the Fourth Amendment is unconstitutional.” Massachusetts v. Sheppard,
468 U.S. 981, 988 n.5, 104 S. Ct. 3424, 3427 n.5 (1984). The particularity requirement
prevents a “general, exploratory rummaging in a person’s belongings.” Coolidge v. New
Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038 (1971). The particularity
requirement also “assures the individual whose property is searched or seized of the
lawful authority of the executing officer, his need to search, and the limits of his power to
search.” Groh v. Ramirez, 540 U.S. 551, 561, 124 S. Ct. 1284, 1292 (2004) (quotation
omitted).
6 Where a party challenges a district court’s issuance of a search warrant, “[the]
appellate court reviews [the] district court’s decision to issue a warrant only to consider
whether the issuing judge had a substantial basis for concluding that probable cause
existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). This court gives great
deference to a district court’s probable cause determination in issuing a search warrant.
State v. Miller, 666 N.W.2d 703, 713 (Minn. 2003).
The issuing judge is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability 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) (quotation omitted). “[W]hen
determining whether a clause in a search warrant is sufficiently particular, the
circumstances of the case must be considered, as well as the nature of the crime under
investigation and whether a more precise description is possible under the
circumstances.” Miller, 666 N.W.2d at 713. “Where the precise identity of goods cannot
be ascertained at the time the warrant is issued, naming only the generic class of items
will suffice . . . .” Id. (quotation omitted).
Applying the deferential substantial-basis standard, we hold that the issuing judge
had probable cause to issue the first search warrant. The warrant application described
what electric cooperative employees found at appellant’s residence and included
photographs of the broken meter seal and the wire bypass. It described the sheriff’s
interviews with appellant and with the cooperative’s general manager. During the
7 interview, appellant confirmed that he lived alone at the property, denied any knowledge
of the bypass, and stated that a friend of his had worked on the electrical service on the
property sometime in October or November 2011. The electric cooperative general
manager told the sheriff that data stored in the meter at appellant’s residence suggested
that the meter tampering had occurred sometime within the previous month. He also told
the sheriff that instructions for installing a meter bypass can be found on the Internet.
The application went on to state that appellant is the person who pays for electrical
services at the property and would benefit from a reduction in billed services there.
These alleged facts establish probable cause to believe that electrical services were being
stolen at appellant’s residence, and that additional evidence of the theft would be found at
the property where the services were allegedly being stolen.
The warrant application listed the property and things to be sought with sufficient
particularity given the circumstances of this case. The application asked for permission
to search for “Any Number 6/or similar in diameter bare solid copper wire . . . [w]ire
cutters, tin snips, pliers, and any and all cutting tools that could provide forensic
information or tool marks for forensic comparison.” It also listed clothing or protective
equipment used in accessing electrical devices, and computers or cell phones that may
contain Internet search information on meter tampering. Depending on the circumstances
of the case, reference to a generic class of items may be sufficiently particular where
precise identification of the items is not possible at the time of application. Miller, 666
N.W.2d at 713. In the absence of more precise knowledge of the specific items used to
8 commit the crime, the sheriff identified categories such as “cutting tools” or “protective
equipment” believed to be necessary to that crime. The warrant application does not
allow law enforcement to take all wire, any and all tools, or any and all types of clothing.
And while the sheriff had reason to believe that appellant would use a laptop or a cell
phone to search for information on how to install a bypass, the sheriff did not need to
know with certainty whether this happened or exactly what kind of device appellant used.
Based on the circumstances of the case and the “flexibility [of] the particularity
requirement,” the warrant was sufficiently particular. State v. Poole, 499 N.W.2d 31, 34
(Minn. 1993).
As for the particularity of the locations to be searched, the applications for the first
and second warrants contained identical language describing the place to be searched. In
each application, the sheriff described the residence and gave its geographical location,
described a detached garage and gave its location relative to the residence, and noted that
several “dilapidated” vehicles and motor homes were located on the property. In the first
search warrant application, the sheriff stated that he had reason to believe that items
related to the theft of electricity (i.e., wire cutters, copper wire, computers/cell phones,
electric bills, literature about electric meter tampering, and protective clothing) would be
found in the places he described. In his briefing before the district court, appellant noted
the sheriff’s lack of knowledge as to how many vehicles were on the property at the time
he asked for authority to search them, suggesting that this lack of knowledge confirms the
sheriff’s uncertainty as to where items to be seized would likely be found. The district
9 court found that the first warrant “described with particular[ity] the property, specifically
the residence, to be searched.”
Appellant appears to argue that the sheriff should have indicated where he thought
particular items would be found on the property. Appellant points to the “application’s
failure of specificity or strong basis for suspecting various items as instruments of a crime
and to be in a particular place.” Given all the circumstances set forth in the affidavit, the
district judge was not unreasonable in finding that the listed items would likely be found
in the residence, the garage, or in vehicles and motor homes on the property. There is a
fair probability that where a bypass has been installed in a meter serving a residence,
items used to install that bypass would be found in a house or a garage on the same
property. While it is arguably less likely that such items would be stored in cars and
motor homes, the fact that the vehicles were “dilapidated” suggests they were likely
stationary and used as much for storage as for transportation. 1 The district court did not
err in finding that the description of the places to be searched was sufficiently particular.
Finally, appellant argues that the suspected theft of electrical services is a
misdemeanor-level offense, and as such, it did not support issuance of the first search
warrant. This argument has no merit. A misdemeanor is a crime and thus a suspected
misdemeanor offense supports the issuance of a search warrant.
1 On October 16, 2013, the sheriff filed a supplemental report describing comments appellant made during a recorded interview with the sheriff. The report indicates that one of two vehicles parked in the yard at the property was broken down and did not run.
10 A court may issue a search warrant on the grounds that the property or things to be
searched “were used as the means of committing a crime” or “the property or things to be
seized consist of any item or constitute any evidence which tends to show a crime has
been committed, or tends to show that a particular person has committed a crime.” Minn.
Stat. § 626.07 (2014). For the purposes of this statute, the term “crime” “includes . . . all
violations of municipal ordinances for which a misdemeanor sentence may be imposed”
and offenses defined as crimes under Minn. Stat. § 609.02, subd. 1 (2014). Minn. Stat.
§ 626.05, subd. 3 (2014). “Crime” is “conduct which is prohibited by statute and for
which the actor may be sentenced to imprisonment, with or without a fine.” Minn. Stat.
§ 609.02, subd. 1. Here, law enforcement sought to investigate a suspected theft of
electrical services, an offense that can carry a sentence of imprisonment for not more than
90 days, or a fine of not more than $1,000, or both. Minn. Stat. § 609.52, subd. 3(5)
(2014). Because the offense being investigated constituted a “crime” for the purposes of
Minn. Stat. § 626.07, it was sufficiently serious to support issuance of the first search
warrant.
Second Warrant
Appellant argues that law enforcement conducted the second search prior to
issuance of the second warrant, and therefore evidence from that search should have been
suppressed. After the omnibus hearing and briefing from the parties, the district court
held that the second warrant was lawfully executed. The court found that “[n]o search for
or seizure of items identified in the Second Warrant occurred prior to the execution of the
11 Second Warrant.” The court specifically found that law enforcement received the second
warrant at approximately 2:09 p.m. on October 15, 2013 and executed it at approximately
2:54 p.m. on the same day. The court explained that, on the issue of the time stamp
discrepancy, it was crediting the sheriff’s testimony regarding the time that the second
warrant was executed.
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted). This court gives “due regard” to “the district court’s
opportunity to judge the credibility of witnesses.” Snyder v. Comm’r of Pub. Safety, 744
N.W.2d 19, 22 (Minn. App. 2008).
Here, the district court found the sheriff’s testimony more reliable than the Lyon
County Court Administration fax machine time stamp. The sheriff testified that he called
the judge to obtain the second warrant and when she returned his call, she told him she
“saw no problem with the warrant and it was going to be issued.” That call was on a
recorded line at the sheriff’s office, and the sheriff testified that he was able to refer to the
office “voice logging system” to determine that the judge returned his call at 2:09 p.m.
The time stamps at the bottom of each page of the sheriff’s application appear to show
that he faxed the application and supporting affidavit and the search warrant form to the
issuing judge between 2:06 p.m. and 2:18 p.m. on October 15, 2013. That time range is
roughly consistent with the sheriff’s testimony regarding when he spoke with the judge
12 about the second warrant. The district court found that law enforcement received the
second warrant at approximately 2:09 p.m. The time of the phone call and the faxing
corresponds generally with this approximate time. The time range is also not inconsistent
with the time the search occurred, according to the Receipt, Inventory and Return. That
document indicates the second warrant was executed at 2:54 p.m. The discrepancy arises
from the time stamp at the top of each sheet of the warrant, which indicates that it was
faxed from the issuing judge at Lyon County Court Administration to the sheriff between
3:38 and 3:40 p.m. The district court found the sheriff’s testimony more convincing than
the Lyon County Court Administration time stamp. The court noted during the omnibus
hearing that it did not have a means of confirming the accuracy of the time stamp.
Because it is conceivable that the sheriff faxed the application and affidavit, spoke
with the judge, and received the signed warrant before executing it at 2:54 p.m., the
district court did not clearly err in finding that the second warrant was issued before it
was executed. In this case the reviewing judge was also the judge who issued both
warrants. A reviewing judge’s ability to view a warrant with an impartial perspective is
enhanced when the reviewing judge is not the same person who approved an application
for the warrant being reviewed. Fresh eyes are helpful, and while the fact that the
reviewing judge was also the issuing judge does not constitute clear error, it is not a best
practice and should be avoided to the extent possible.
Appellant also argues that, like the first warrant, the second warrant failed to state
with particularity the places to be searched. Appellant raised this issue before the district
13 court and argues it very briefly on appeal. Applying the deferential substantial-basis
standard of review, we hold that the second warrant stated the places to be searched with
sufficient particularity. There is a substantial basis for the belief that firearms, drugs, and
drug paraphernalia would be found in a house where these items have already been seen
in plain view. Likewise, there is a substantial basis for the belief that these items would
be in a garage or in an apparently immobile vehicle or motor home on the same property,
given the totality of the circumstances.
Lastly, appellant argues that irregularities in the Receipt, Inventory and Return
support suppression of all evidence seized under the second warrant. Appellant bases his
argument on the fact that the sheriff listed all items seized pursuant to the first and second
warrants in a single Receipt, Inventory and Return document. Tools and wire—items
associated with the first warrant—are intermingled with drug-related items that were
authorized by the second warrant. In the district court, appellant argued that there were
problems with the Receipt, Inventory and Return, but he did not base his argument on the
same theory. Instead, he argued that the sheriff did not sign the document, did not have it
notarized, and did not provide a signed, notarized copy to the defense. Appellant
therefore failed to preserve this issue for appeal and we decline to review it.
In this case, officers used one Receipt, Inventory and Return to record property
and things seized pursuant to two search warrants. Minnesota law requires officers
executing a search warrant to create a receipt and an inventory for any property or things
taken pursuant to the warrant. Minn. Stat. §§ 626.16-.17 (2014). While listing all the
14 items seized pursuant to multiple search warrants in one Receipt, Inventory and Return
technically complies with the statutory requirement and may be more expedient from the
perspective of law enforcement, creating a separate document for each search warrant is
the better practice, as it more fully addresses the statutory directive and ensures a clear
record for judicial review.
Affirmed.