The Minnesota criminal defense attorneys at Lundgren & Johnson, PSC have a wealth of experience defending people charged with drug offenses and other crimes throughout Minnesota. A significant portion of this experience consists of challenging drug cases based on unlawful searches and seizures by the police or others in law enforcement. Most people know that in order to conduct a search of constitutional dimensions – say, the search for drugs at a person’s house – the police must have either (1) a search warrant, or (2) a valid exception to the search warrant requirement.
In this article, we will explain the process of challenging a search warrant, some of the law applicable to such challenges, and the specific process of challenging a search warrant where it is alleged that an officer either (1) lied in their application for a search warrant, or (2) omitted information from the search warrant that would have detracted from the probable cause that is necessary for a search warrant to issue.
Challenging a Minnesota Search Warrant – Core Principles
A search warrant is a document that lets the police do something intrusive, whether it is the search of a house, a car, or the taking of a DNA sample from a suspect. The police do not have the authority to generate search warrants. Rather, the police apply for a search warrant through a sworn affidavit and application that is then presented to a judge for probable cause review. Search warrants are only issued if the reviewing judge determines that an officer’s affidavit and application establish probable cause for a given search.
Both the United States and Minnesota constitutions provide that no warrant shall issue absent a showing of probable cause. With limited exceptions, a search is lawful only if it is conducted pursuant to a valid warrant, issued by a neutral and detached judge, and upon a finding of probable cause by the judge. Probable cause exists if an officer’s affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched.
In the case of State v. Wiley, 366 N.W.2d 265 (Minn. 1985), Minnesota adopted the “totality of the circumstances” test for determining whether a search warrant is supported by probable cause. This test was first articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238 (1983). Under this test, the issuing judge is to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him or her, there is a fair probability that contraband or evidence of a crime will be found in a particular place. In determining whether probable cause exists, the district court may consider only the information in the application for the search warrant. In other words, the judge cannot consider information based on the judge’s own knowledge, statements by an officer that are not contained in the officer’s affidavit, or any other information outside the “four corners” of the search warrant affidavit and application.
In assessing a search warrant application, a judge is guided by law that states that doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. In other words, if it is a close call, the law presumes that a search warrant should issue. At the same time, the law is clear that an officer’s affidavit must supply specific facts to establish a “direct connection” or “direct nexus” between the crime alleged and the place to be searched. To see how this analysis works in the courts, an analysis of a specific case may be useful. We have chosen State v. Yarbrough, 841 N.W.2d 619 (Minn. 2014) because the facts of the case are not overly complex.
In Yarbrough, the facts demonstrated that on May 7, 2012, the defendant allegedly confronted a woman at a Saint Paul public park and accused her of stealing “a large amount” of his crack cocaine. The defendant brandished a silver handgun with a black grip in order to threaten the woman. The defendant then left the scene in a maroon Chevrolet Caprice bearing a specified Minnesota license plate number ending in “X.” A woman drove the car.
Using databases, Saint Paul police officers discovered that the defendant and his female roommate lived in an apartment on West 7th Street. Officers observed the maroon Chevrolet Caprice with the specified license plate number parked at the rear of the apartment building. The vehicle was registered to the defendant’s roommate at that address. Officers also learned from a confidential reliable informant that the defendant was a known dealer of crack cocaine and carried a handgun. The defendant had been arrested on February 14, 2012, for possession of a controlled substance with intent to distribute. At the time of that arrest, the defendant’s roommate was with him in the same maroon Chevrolet Caprice.
Based on the above information, on May 10, 2012, officers applied for a warrant to search the defendant, the maroon Chevrolet Caprice, and the apartment. That same day, a Ramsey County judge issued the warrant. Among other things, the warrant authorized the officers to search the apartment for firearms, ammunition, papers showing control of the residence, and controlled substances. The next day officers arrested the defendant. They then executed the search warrant at the apartment. During the search, officers recovered a large amount of cash, a silver handgun with a black grip that was later determined to be stolen, ammunition, and drugs. The defendant was charged with with possession of cocaine, possession of marijuana, and receipt of stolen property (the handgun).
Before trial, the defendant moved to have all of the evidence suppressed, including evidence from the apartment, arguing that the search warrant did not establish a sufficient nexus between the defendant’s alleged criminal conduct and the apartment itself. The district court granted the motion, and suppressed the evidence, and the prosecution appealed. The Minnesota Court of Appeals reversed the district court’s decision, and ultimately, the case wound up at the Minnesota Supreme Court. There, the state’s high Court affirmed the Minnesota Court of Appeals, and wrote as follows:
Probable cause not only requires that the evidence sought likely exists, but also that there is a fair probability that the evidence will be found at the specific site to be searched. A sufficient “nexus” must be established between the evidence sought and the place to be searched. However, direct observation of evidence of a crime at the place to be searched is not required. A nexus may be inferred from the totality of the circumstances….
Regarding gun evidence, we have held that, depending on the circumstances, it is reasonable to infer that such evidence would be kept at a defendant’s residence, thereby satisfying the nexus requirement…. Regarding drug evidence, we have drawn a distinction between a “drug wholesaler” and a “casual user.” It may be reasonable to infer that drug wholesalers keep drugs at their residences, but such an inference, without more, is unwarranted for casual users.
At the threshold, this is not a case in which police officers obtained a warrant to search [the defendant’s] residence simply because he was seen with a handgun away from his residence. That would ordinarily not be enough to establish a nexus to search a residence. Accordingly, the court of appeals’ statement below—“where the evidence in the search-warrant affidavit establishes that a defendant possessed a gun, it is common sense and reasonable to infer that the defendant would keep that gun at his residence”—is too broad.
By contrast, the judge issuing the search warrant here had a substantial factual basis for concluding that there was a fair probability that a handgun and ammunition would be found at [the defendant’s] residence. The search warrant affidavit stated that [the defendant] not only made threats with a handgun in a public park, but fled the scene in a vehicle that was later parked at, and registered to a resident of, the apartment. The inference is that the vehicle’s driver was [the defendant’s] roommate. It was therefore reasonable to infer that [the defendant] or the driver would store the handgun at the apartment. These facts, in combination with the corresponding reasonable inferences, established a substantial basis to believe that probable cause existed to search [the defendant’s] residence for gun evidence.
Whether the search warrant affidavit established a fair probability that drug evidence would be found at the apartment is a closer question. We hold that the search warrant affidavit, by three factual allegations, established a sufficient nexus between [the defendant’s] drug activities and the apartment. First, the affidavit stated that [the defendant] previously had been arrested for possession of a controlled substance with intent to distribute. The affidavit also stated that, according to a confidential reliable informant, [the defendant] was a crack cocaine dealer. Finally, the affidavit stated that [the defendant] had brandished a handgun on May 7, 2012, because someone had stolen ‘a large amount of crack cocaine from him.’ These three factual allegations were enough to explain that [the defendant] was a drug wholesaler. Thus, the issuing judge had a substantial basis to conclude that there was a fair probability that drug evidence would be found at the apartment.
Going Beyond the “Four Corners” of a Search Warrant Affidavit and Application
As has been discussed above, challenges to search warrants are usually confined to the facts alleged in the search warrant application and affidavit. In rarer cases, it may be necessary for a party to make a challenge to a search warrant by going beyond the “four corners” of these documents. This is necessary, for example, where an officer has misrepresented a material fact or facts in the affidavit either by omission or commission. For example, if an officer were to allege that an informant has no criminal history, and the defense uncovers the identity of the informant and learns that they have convictions for crimes of dishonesty, the defense will move for an evidentiary hearing – called a Franks hearing – to develop the record and make appropriate challenges to the search warrant.
In 1978, the United States Supreme Court held, in Franks v. Delaware, 438 U.S. 154 (1978), that a search warrant may be voided, and any evidence obtained under the warrant suppressed, if the court finds that material facts were knowingly, or with reckless disregard for the truth, omitted from the affidavit. If the application for the search warrant includes intentional or reckless misrepresentations of fact that are material to the finding of probable cause, the search warrant will be deemed void and the fruits of the search must be excluded from trial. A misrepresentation is “material” if when set aside there is no longer probable cause to issue the search warrant. If the misrepresentation is material, then the court must determine that the police deliberately or recklessly misrepresented facts, because innocent or negligent misrepresentations will not invalidate a warrant. When a defendant seeks to invalidate a warrant, the two-pronged “Franks” test requires a defendant to show that (1) the officer seeking the warrant deliberately made a statement that was false or in reckless disregard of the truth, and (2) the statement was material to the probable cause determination. If a defendant can satisfy this test, a motion to suppress the fruits of a search should be granted.
The Minnesota Supreme Court has extended Franks to apply to material omissions from the affidavit. In other words, a defendant may make a Franks challenge, not because an officer provided an affirmative misrepresentation, but failed to include information in their affidavit that should have been included. A misrepresentation by omission is material if, when the omission is supplied, probable cause to issue the search warrant no longer exists. Stated differently, if the district court finds knowing or reckless omissions, it must supply the omissions (essentially, write them in) and then determine whether the affidavit still establishes probable cause.
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If you have been on the receiving end of a search warrant and have questions, call us. The lawyers at Lundgren & Johnson, PSC are experienced in difficult and complex cases involving search warrants. We have a broad range of experience in defending our clients’ Fourth Amendment rights, and are always up for the challenge of doing so. If you are in need of our services, you can reach David R. Lundgren or Adam T. Johnson at 612-767-9643 or by entering your information in the contact form below.