State of Minnesota, Respondent, vs. Gregory John Detlaff, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-5

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory John Detlaff,

Appellant.

 

Filed September 30, 2003 Affirmed Randall, Judge

 

Hennepin County District Court

File No. 00112931

 

Mike Hatch, Minnesota Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Caroline H. Lennon, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Lawrence E. Nichols, 1971 Seneca Road, Suite A, Eagan, MN 55122 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            In this appeal from a conviction for 25 counts of aggravated forgery, appellant contends that the police did not have probable cause to search his residence and that the evidence obtained should have been suppressed.  Additionally, he argues that the police improperly seized additional banking documents that were not immediately incriminating. Finally, appellant asserts that the district court should have suppressed all the evidence seized because the police seized additional evidence beyond that listed in the search warrant.  Because we conclude that the warrant was supported by probable cause and that the district court did not err by admitting the additional evidence seized, we affirm.  We find no error in the district court's decision not to suppress all the evidence from the search. 

FACTS

In early November 2000, Richfield Bank & Trust (RBT) reported to police that five separate drafts had been deposited into the account of appellant Greg Detlaff and all had been returned as invalid accounts or invalid payors.  RBT gave the police the address listed on appellant's account, 9930 Kell Ave. South, and police went to this address to investigate.  This address is the home of appellant's mother.  She informed the officers that appellant did not live there, but that she regularly spoke with him and would have him call them.  She also inquired if this was regarding her son's Norwest bank account.  In response to this question, the police learned that Norwest had written off a loss of approximately $12,000 on an account belonging to appellant. 

            On November 17, 2000, Officer Elliot interviewed appellant.  This interview was tape-recorded and is transcribed.  During the interview, appellant did not explicitly admit that he committed a crime, though he did say that he was "very sorry" for his conduct and wanted to "make it right."  In December 2000, Officer Elliot learned that the Carver County Sheriff's Department was investigating a similar case involving a business account for the Refund Distribution Center, which is a business owned by appellant.  Refund Distribution Center's checks were deposited into the business account at the State Bank of Young America (BYA).  Elliott drafted a search warrant for 10525 Virginia Circle, the address that appellant had provided during his voluntary interview.  The warrant sought documents relating to appellant's personal account at RBT, his company's account at BYA, and equipment useful to produce counterfeit checks. 

            When police executed the warrant at the listed address, Bridget Henne, appellant's mother-in-law, answered the door.  She stated that appellant did not live there, and gave police his correct address, 10706 Cavell Road.  Henne also stated that she owned both the Virginia Circle and Cavell Road properties.  Police confirmed through real estate records that she did own the Cavell Road property.  Bloomington police records showed that there was a medical emergency at the Cavell Road address for a child with the last name of Detlaff.  Henne identified this child as appellant's daughter.

            On December 19, 2002, Elliott executed a search warrant for the Cavell Road residence seeking the same material described in the first warrant.  Once inside the residence, officers discovered approximately 250 letters from various banks, some of which were opened, others of which were not.  One of the letters was from the "Returned Items Department" of US Bank.  All the letters appeared substantially the same.  The police did not open any unopened letters at the residence, but instead took them into custody.  Later, they obtained a search warrant for the letters and opened them. 

D E C I S I O N

I.

We afford great deference to the issuing magistrate's finding of probable cause.  State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).  Appellate review seeks only to ensure that there was a "substantial basis to conclude that probable cause existed."  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)).

To determine whether probable cause exists to support a search warrant, we must look at the "totality of the circumstances."  Harris, 589 N.W.2d at 788.  The United States Supreme Court has defined the inquiry as follows:

The task of the issuing magistrate is simply to make a practical, common-sense 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

 

Gates, 462 U.S. at 238, 103 S. Ct. at 2332 (citation omitted).  Courts have cautioned that probable cause requires only a substantial chance or probability of criminal activity, not an actual showing of such activity.  Harris, 589 N.W.2d at 790-91. 

            In addition to a probable-cause showing of criminal activity, there must be a nexus between that activity and the place or places covered by the warrant.  State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998).  To determine whether the required nexus exists, this court has stated:

The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.

 

State v. Ward, 580 N.W.2d 67, 72 (Minn. App. 1998) (quotation omitted). 

            Here, the warrant was supported by probable cause.  The supreme court recognized in Harris that "[c]ommon sense permits an inference that such documents [as a phone bill] would normally be found in a person's home."  Harris, 589 N.W.2d at 788.  Looking at the totality of the circumstances, we have the following:  First, the Kell Avenue address listed on one of his bank accounts belonged to his mother, who informed the police that appellant did not live there.  In addition, another of his listed addresses was a post-office box.  Reliable information provided by the owner of the residence established that appellant lived at the Cavell Road address.  Next, it is not unreasonable to believe that financial records might be kept in one's home.  This is a common place for individuals to keep financial records.  Finally, given the nature of the alleged activity, a location equipped with a computer and check-forging materials would be necessary to accomplish the forgery.  A post office box is probably insufficient.  A residence, however, is suitable to such activity.  In sum, there was a reasonable probability that evidence involved in the check-forgery scheme could be found in appellant's residence. 

II.

Appellant argues that the unopened bank records were not within the scope of the warrant and that no exception to the warrant requirement applies.  He asserts that the "plain view" exception cannot apply because the bank records' incriminating nature was not immediately apparent.  Respondent counters that under the circumstances of the search and given the background available to the officers, the "huge number of similar items from four more banks fit an obvious and recognizable pattern."  Further, respondent asserts that given the number of documents, it was appropriate to seize the items temporarily, and get a warrant to open them later, rather than prolong the search in appellant's home.

            A determination of "probable cause as it relates to warrantless searches" is similarly subject to de novo review.  State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  Warrantless searches are per se unreasonable unless an exception applies.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). The police can, however, seize items that are in "plain view" without a warrant if they have probable cause to believe that an item is contraband, stolen property, or evidence of a crime.  Zanter, 535 N.W.2d at 632.  To apply this exception, the officer must be in a position where he can lawfully view the disputed object.  Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038 (1971). 

            Because the initial warrant was validly issued, the police were lawfully in a position to view the numerous envelopes.  The real issue is whether probable cause existed to believe that the large volume of unopened envelopes from various banks were evidence of a crime. 

            In State v. DeWald, 463 N.W.2d 741 (Minn. 1990), the court said that when evaluating whether evidence in plain sight is immediately incriminating, "the police may consider such things as any background information they have which casts light on the nature of the property and whether the items are unusual in number or are strangely stored or located."  Id. at 747.  In that case, the police were investigating a homicide and discovered goods known to be missing from the victim's home when searching a residence.  Id. at 744.  Based on their knowledge of the items taken from the victim's home, the court concluded that the officers had probable cause to seize the items.  Id. at 747-48. 

            Here, one of the many similar envelopes that the police saw was from the "Returned Items Department" of a bank.  The police were investigating appellant and searching for evidence that he deposited forged checks that would necessarily produce returned items from the banks.  He admitted his fraud in an interview with police in November 2000.  Approximately one month later, after learning of other accounts, the police obtained a search warrant to locate evidence of this fraud.  They uncovered a variety of items relating to the known frauds and also evidence that was likely to show fraud from additional banks that were unknown to investigators at the time.  When the police seized the additional bank records, it was not certain that they were evidence of fraud, but certainty is not the test.  We must determine whether there was a substantial chance or probability of criminal activity.  Harris, 589 N.W.2d at 790-91.  Given the nature of the crimes and the nature of the evidence, we conclude the additional evidence seized was reasonably likely to be evidence of criminal activity. 

            We also note that the issue is not whether the second warrant invalidated the first or whether the second warrant was such a sign of weakness in the state's case that the first is assumed to be invalid.  The issue before us is the propriety of the district court's ruling that the evidence was validly seized under the plain view doctrine.  For the reasons set out above, we affirm the district court.  We make no comment as to whether the second warrant was either necessary or helpful.

III.

            Appellant argues "when police officers show a flagrant disregard for the terms of a warrant all evidence seized can and should be suppressed."  He alleges that the police vastly exceeded the scope of the search warrant without any justification.  The district court did suppress evidence of weapons, disguises, and lock picks seized from appellant's home. 

"Generally, the seizure of some items beyond those specified in a search warrant does not alone require suppression of those items lawfully seized."  State v. Bonynge, 450 N.W.2d 331, 337 (Minn. App. 1990) (citations omitted), review denied (Minn. Feb. 21, 1990).  "Only when the officers show a flagrant disregard for the terms of a warrant should all the evidence seized be suppressed."  Id. (citing Marvin v. United States, 732 F.2d 669, 674-75 (8th Cir. 1984)).  In Marvin, the IRS seized a large quantity of medical records because some contained financial information relating to income of the doctor.  Marvin, 732 F.2d at 674.  The government defended this on the ground that it was impractical to sort through all the records on-site and that the district court had ordered all non-financial portions returned.  Id.  This was sufficient for the Eighth Circuit Court of Appeals to conclude that the search was not a flagrant disregard of the search warrant.  Id. at 675.

            In this case, respondent does not challenge the suppression of the other items found in appellant's home.  Instead, it simply asks that we affirm the district court's decision to suppress only those items that were beyond the scope of the warrant and leave the legitimately seized items properly admitted.  We cannot conclude that the police in this case showed a flagrant disregard for the warrant.  The other items seized that were not within the search warrant were guns, disguises, surveillance, and lock-picking equipment.  Appellant is correct that these should not have been seized, but the district court's suppression of these items prevented any prejudice.  This selective suppression does not invalidate the entire search.

            Affirmed.