Timothy D Webb, Criminal Defense Lawyer

By: Timothy D Webb, a Criminal Defense Lawyer in Minneapolis, MN

            The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

U.S. Const. amend. IV.  The Minnesota Constitution contains a similar provision.  See Minn. Const. art. I, § 10.  The latter clauses of these provisions are commonly referred to as the “warrant clauses.”

            The warrant clauses prohibit the issuance of search warrants absent a showing of probable cause.  Generally, a search is lawful only if conducted pursuant to a valid search warrant issued by a neutral and detached magistrate who has found probable cause.  See Minn. Stat. § 626.08 (2006); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999); State v. Albrecht, 465 N.W.2d 107, 108 (Minn. Ct. App. 1991).  Minnesota has adopted a “totality of the circumstances” test for determining whether a search warrant is supported by probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

            The issuing magistrate must have “a substantial basis” to find probable cause.  State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005).  Although the quantum of evidence necessary to establish probable cause in the arrest and search contexts is the same, “it does not follow that probable cause for arrest and probable cause to search are in all respects identical.  This is clearly not the case.”  2 Wayne R. LaFave, Search&Seizure § 3.1(b) (4th ed. 2007) (“Search & Seizure”).  The distinction “is a critical one, and is particularly significant in search warrant cases, for it means that the probable cause determination in that context is a much more complex matter[.]”  Id. 

The more complicated probable cause determination which must be made in search cases may be said to include four ingredients:  time; crime; objects; and place…  Assuming no problems exist with respect to time, it is still necessary that there be established a sufficient nexus between (1) criminal activity, and (2) the things to be seized, and (3) the place to be searched.

Search & Seizure § 3.7(d). 

            Minnesota courts have identified these same four elements—(1) time, (2) crime, (3) objects and (4) place—as critical to probable cause in the search context.  See, e.g., State v. Jannetta, 355 N.W.2d 189, 193 (Minn. Ct. App. 1984) (“Probable cause to search exists if it is established certain identifiable objects are probably connected with certain criminal activity and may probably be found at the present time.”); State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998) (“When the request of the court is for the issuance of a warrant to search a particular location, there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched.”).[1]

            Evaluation of the probable cause underlying a search warrant is limited to a review of the information presented in the warrant application.  Novak v. State, 349 N.W.2d 830, 831 (Minn. 1984).  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.  State v. Eggler, 372 N.W.2d 12, 15 (Minn. Ct. App. 1985).  Probable cause exists only 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, 175 N.W.2d 448, 456 (Minn. 1970).

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