I am currently working on a case illustrates why probable cause is so important. I am representing a 24 year old man who in Olmstead County who is charged with the crime of Felon in Possession of a firearm. After his release from custody on the felony charge, he went to live at his parents’ house, and went to work in his family’s business. At the home, in addition to my client, my client parents and six of his 9 brothers lived at the home, which is located in a rural area including wooded acreage and farm fields. My client was the only person at the home with a criminal record. My client’s dad and brothers and are hunters and shoot target practice for sport and recreation, and own rifles and shotguns for those purposes.
He was under the supervision of Olmstead County’s probation agents. His probation agent and another corrects agent visited the home on July 27, 2007. None of the residents were there, but the agents observed shell casings and live rounds for guns of three different calibers, primarily rifle rounds. The corrections agents then met with an Olmstead County Detective, who obtained the search warrant to permit a search for firearms and related materials.
The deputies did execute the warrant a few days later. At the contested evidentiary hearing, the deputies testified that there were no guns in the bedroom of my client. The deputies did find guns in house and garage, but did not find any evidence indicating that Jonathan Nett intended to possess the guns, use the guns, or control the guns to the exclusion of the other residents of the home. The detective testified that my client told him that he took some of the guns out of the house to the garage two or three months prior so that one of his brothers could lock them up.
In representing my client, we asked the court to suppress all physical evidence seized pursuant to the search warrant executed July 26, 2007 on the ground that there was no probable cause for the warrant, and thus, the search and seizure violates the Fourth Amendment to the United States Constitution. The Fourth Amendment 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 warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Specifically, the Defendant contends that the search warrant was not issued on probable cause. Probable cause exists when the affidavit sets forth sufficient facts to lead a prudent person to believe that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” My argument to the Court in this case, is that the was no facts showing that my client specifically was in possession of a firearm.
Under Minnesota Statute § 624.713, subd. 1(b), it is a felony for a person convicted of a crime of violence to possess any type of firearm. A conviction under that statute requires either actual or constructive possession of a firearm. Actual possession means the defendant physically had the firearm on her person. Constructive possession requires that:
(1) the police found the item in a place under the defendant’s exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over i
My client’s case specifically requires that prosecutor prove that my client had constructive possession over the firearms. The Minnesota Supreme Court has recognized that even though actual possession may not exist in many cases, the constructive possession doctrine is sufficient to establish possession for a conviction “where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.” My argument was that the under a constructive possession analysis, there was no probable cause that my client possessed a firearm.
The standard for probable cause is lower than the beyond-a-reasonable-doubt standard necessary for a conviction. Probable cause exists if “evidence worthy of consideration . . . brings the charge . . . within a reasonable probability. Stated differently, probable cause exists when “the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.”
My client’s case is similar to an unreported case the Minnesota Court of Appeals reviewed in 2006. In that case, State v. Adiel Pedersen, the Mrs. Petersen, the Defendant, was a convicted felon, and lived in a single family residence with her husband. Officers executed a search warrant of the residence, looking for controlled substances. In a downstairs closet, officers found two firearms. Among other charges the Defendant was charged with prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713. At trial, the Defendant denied knowledge of the guns in the closet. The state argued that the gun’s presence in the same closet in Defendant’s home of both firearms and clothing and other objects that may have belonged to Defendant established her possession of the firearms. The jury found the Defendant guilty of the firearm-possession charges. On appeal of the firearms conviction, Defendant also argued that because her husband had a lawful right to possess the firearms, there was insufficient evidence that Defendant possessed the guns.
On appeal, the Defendant argued that her firearm possession conviction was not supported by the evidence. The Court held that there was insufficient evidence to charge the Pedersen Defendant with the firearm possession charge, meaning that the Court found that there was no probable cause that Mrs. Pedersen could have been guilty of the firearm charge. The Minnesota Court of Appeal’s analysis and discussion included an overview of other jurisdictions that have reviewed possession charges when the guns are actually owned by someone else in the home. In all of those cases, the State has to show evidence that the person charged actually had dominion and control over the firearm.
In my client’s case, the Court should dismiss the charges against my client. Probable cause, “the facts that would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime” does not exist, as there are no facts indicating that my client possessed the firearm that were in the home that he lived in with eight other people.
The probable case standard is supposed to be a safeguard to prevent innocent people from being charged with crimes, and probable cause refers to a standard by which a police officer has the right to make an arrest, conduct a personal or property search or obtain a warrant. It is also used to refer to the standard to which a grand jury believes that a crime has been committed. This term comes from straight from the Fourth Amendment of the United States Constitution, is a simplistic definition is would be “a reasonable belief that a crime has been committed” and that the person is linked to the crime with the same degree of certainty. As a Minnesota criminal defense attorney, I believe that probable cause should be argued in every case, especially those cases where the State must rely on circumstantial evidence to prove guilt.
Criminal Defense Attorney - Minnesota 