Review of Court of Appeals.
The opinion of the court was delivered by: Anderson
Suppressing either photographs found in defendant's briefcase or keys found in defendant's basement will have a critical impact on the state's ability to prosecute the defendant successfully.
Police had probable cause to seize photographs found in defendant's briefcase during first warranted search of defendant's home because the seizing officers had sufficient reason to believe that the photographs were the fruit or instrumentality of a crime.
The parts of a third search warrant authorizing police to search a dresser in the defendant's basement, in which the police found keys belonging to the victim, were not supported by probable cause because the police failed to provide the issuing judge with sufficient new information to indicate that items already searched for during two prior, exhaustive searches of the defendant's home would be discovered during a third search.
Heard, considered and decided by the court en banc.
This matter comes before us on a pretrial appeal by the state pursuant to Minn. R. Crim. P. 28.04. The appeal is from the trial court's omnibus order suppressing two pieces of evidence seized by police during two separate warranted searches of defendant Stephan Zanter's home in Eagan, Minnesota. The Rice County Grand Jury has indicted Zanter on one count of first-degree murder and on three counts of second-degree murder in connection with the disappearance and murder of Sharon Bloom. In its omnibus order, the court suppressed a number of photographs that police had found in a briefcase during their first warranted search of Zanter's home. Although police discovered the photographs in "plain view," the court suppressed the photographs because it concluded that the seizing officers did not have reason to believe that the photographs were incriminating. The court also suppressed a set of keys that police had found in the bottom drawer of a dresser located in the basement of Zanter's home. The keys were seized during a third warranted search of Zanter's home. The court suppressed the keys on the ground that the parts of the third warrant authorizing police to look in the dresser were not supported by probable cause. The Minnesota Court of Appeals affirmed the decision of the trial court, but on different grounds with respect to the photographs. We granted review, and we affirm in part and reverse in part.
In November 1989, Sharon Bloom was employed as a systems analyst by 3M at its Woodbury, Minnesota facility. At approximately 11:30 a.m. on November 2, 1989, Bloom disappeared from the Woodbury facility. Ten days later, on November 12, 1989, a farmer found Bloom's partially clad body in a cornfield in Rice County, about halfway between the cities of Northfield and Faribault, Minnesota. Bloom had been bludgeoned to death and appeared to have been the victim of a sexual assault.
Bloom was last seen near the front entrance of the building in which she worked. The police interviewed Bloom's co-workers, family and friends, and learned that Bloom had been subject to numerous incidents of harassment while working at 3M. More particularly, her keys had been taken on at least four occasions and were never returned; her glasses had been taken and were later discovered in an area that had already been searched; her presentation materials had been taken and were later returned to her locked desk after the presentation; and on one occasion a large amount of coffee had been spilled on her chair, requiring her to go home to change her clothing. The harassment had been on-going for more than a year. Bloom's co-workers and friends knew of the harassment, and several individuals indicated that shortly before her disappearance, Bloom expressed concern for her personal safety. The harasser had not been identified, although several people, including Bloom, mentioned Stephan Zanter as a possible suspect. Zanter was Bloom's long-time co-worker and had formerly occupied Bloom's desk at 3M.
In the days following Bloom's disappearance, the police were able to verify an alibi for Bloom's boyfriend and alibis for all but one of her co-workers -- Stephan Zanter. On the evening of November 12, 1989, Ray DiPrima, an agent with the Bureau of Criminal Apprehension (BCA), and David Hines, an investigator with the Woodbury police department, went to Zanter's home to interview him and to inquire into his alibi. Zanter's wife, Barbara, was present for the interview, and Zanter's daughter was also present for the first half of the interview, which ultimately lasted approximately 4.5 hours. During the interview, Zanter acknowledged that he was aware of the harassment of Bloom. He also acknowledged that some of his co-workers considered him to be a suspect in the harassment, although he denied that he was the harasser.
Zanter offered the following alibi for the day Bloom disappeared. He told the officers that on November 2, 1989, he was working at the 3M facility. He left work at approximately 11:00 a.m. and drove to the 3M employee store in Maplewood, Minnesota to purchase some unidentified items. He left the 3M store without making a purchase. He then drove to a Burger King restaurant for lunch. Zanter reported that, shortly after leaving Burger King, his car broke down along a busy street. He waited for an unknown period of time before an unidentified motorist stopped to help jump-start his car. Zanter remembered that the individual who helped him was a male, but he could not identify the helper's age, race or appearance, or the type of car he drove. After his car started, Zanter stated that he returned home because he was cold. At approximately 2:00 p.m., Zanter called 3M to inform his supervisor that he would not be returning to work that day. Zanter stated that he spent the remainder of the afternoon at his home.
Approximately three to four hours into the interview with Zanter, DiPrima was paged and he telephoned his office from the Zanter home. He learned that Bloom's body had been found. After DiPrima consulted with Investigator Hines, the two officers told Zanter that Bloom's body had been found. At that point, Zanter became emotionally distraught. He first stated that he had hoped that Bloom would not be found. Zanter's wife immediately clarified that her husband meant that they both had hoped that Bloom would not be found dead. Zanter then began to sob and to moan, and he eventually curled into a "fetal position" on the floor. Zanter's wife became concerned and asked the officers not to leave. At one point, Zanter asked the officers whether they were going to take him to jail. Investigator Hines responded by asking whether there was a reason the officers should take Zanter to jail. Zanter did not directly answer the question. Both officers testified they found Zanter's behavior to be highly unusual. The two officers eventually left without arresting Zanter.
On November 16, 1989, the police applied both for a search warrant for Zanter's home and for a warrant to take blood and hair samples from Zanter's body. The affidavit in support of the warrants set forth evidence that, among other things, Zanter was a suspect in the harassment of Bloom; the police were unable to verify Zanter's alibi; and Zanter acted in an unusual manner upon learning that Bloom's body had been discovered. A search warrant was issued for the home on November 16, authorizing the police to search for and to seize:
clothing and personal affects [sic] belonging to or owned by Sharon Phyllis Bloom, including a skirt; shoes; underwear; a gray and brown purse and its contents including a calendar, address book, identification, keys and credit cards; a heavy blunt metal object indicating the presence of hair, blood, or bodily fluids; samples of hair, blood, bodily fluids, and possible finger prints of Sharon Phyllis Bloom.
When the police executed the warrant, Zanter was painting his master bathroom. The Zanters had recently moved into the newly-built home. During the search, the police seized several items, including photographs found in Zanter's briefcase. Although the photographs were not explicitly sexual, many were of women in bathing suits and several were of women sitting on the toilet. Agent DiPrima immediately recognized one of the women in the photographs as being a coworker of Bloom and Zanter. Neither Zanter nor any member of his family were in any of the photographs. DiPrima seized the photographs because he suspected they were stolen and were related to the alleged harassment at 3M. Although the photographs were apparently stolen, the police did not confirm this until after they seized them and subsequently showed them to the female coworker.
During the first search, the police did not test the house for blood or other trace evidence. The mobile BCA crime lab was not on the scene because it was occupied with another case. Moreover, because the police had removed what they thought to be seminal material from Bloom's body, they believed that they would be able to compare DNA in that material with samples of Zanter's DNA. But no semen was actually found in the material removed from Bloom's body.
On September 5, 1990, nearly ten months after the first search, the police sought a second search warrant for the Zanter home. The affidavit in support of the warrant incorporated by reference the prior affidavit in support of the November 16, 1989 warrant. The affidavit also set forth additional evidence that focused suspicion on Zanter, including: preliminary conclusions by the BCA lab indicated that a head hair and a pubic hair found with Bloom's body were microscopically similar to known samples taken from Zanter on November 16, 1989; Zanter had been painting his master bathroom when the police executed the first warrant; "luminol" testing had in the past been successful in revealing trace blood on painted walls; the photographs seized during the first search had been confirmed to be stolen; Zanter's car battery showed no signs of having been recently connected to cables used to jump-start a car; and other inconsistencies existed in Zanter's alibi.
The second search warrant was issued on September 5, 1990. It authorized the police to search for and to seize:
Evidence relating to the cause, matter, or motive in the death of Sharon Phyllis Bloom including hairs, blood, clothing, fibers and fingerprints; any weapons or instruments which could cause blunt force trauma; and documents, records, notes, correspondence, which could be used to establish a motive for homicide, including bank records, checks and credit card account statements.
On September 6, 1990, police officers and BCA lab personnel executed the second search warrant. They used the luminol testing procedure in an attempt to find trace blood on the painted walls. These tests failed to reveal trace blood. The police also conducted a second exhaustive search of the Zanter home. The police did not arrest Zanter after this second search.
In February 1992, more than two years after Bloom's murder, Agent DiPrima interviewed several of Barbara Zanter's co-workers. Some of them recalled that on November 3, 1989, the day after Bloom disappeared, Barbara Zanter was distracted at work because on the previous day she had found freshly spilled blood on the carpet and walls of her new home. Barbara Zanter asked her coworkers for suggestions on how to remove blood stains from carpet.
Armed with this new information, the police sought a third search warrant. The affidavit in support of the warrant incorporated the information contained in the first and second warrant applications. The only new information contained in the supporting affidavit was that Barbara Zanter had discussed with her co-workers the existence of blood in her home on the day Bloom disappeared, and that a co-worker at Zanter's new job at the University of Minnesota had reported her wallet stolen.
On March 4, 1992, a third search warrant was issued and the police executed it on March 5, 1992. This warrant authorized the ...