State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1406

State of Minnesota,
Respondent,

vs.

Mario Dewayne Nelson,
Appellant.

Filed September 17, 2018
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CR-15-1551

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Pres iding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
On appeal from his conviction for possession and sale of cocaine, appellant argues
that the search warrant allowing the search of his car was not supported by probable cause,

2
and that the district court erred by failing to suppress evidence foun d on cellphones in his
car during the execution of the search warrant and by admitting hearsay statements of his
passenger as evidence at trial. We affirm.
FACTS
In late December 2014, Officer Michael Dunaski of the St. Paul Police Department
received information from a confidential reliable informant (CRI) with whom he ha d
worked in the past that a man nicknamed “Bam” was selling crack cocaine in St. Paul. The
CRI specified that Bam sold the drugs out of a gray 2002 Trailblazer with the assistance of
a female driver. The CRI also gave Officer Dunaski the license plate number for the
Trailblazer and the address of a parking lot where Bam was selling drugs. Officer Dunaski
conducted an independent investigation based on this information. In the course of his
investigation, he observed someone matching Bam’s description go to the specified
parking lot in the gray Trailblazer , exit the Trailblazer, enter a vehicle that had pulled up
alongside him, and stay in it for a short time before they both left . Officer Dunaski
believed, based on his training and experience, that this was consistent with drug dealing.
The Ramsey County District Court issued a search warrant on December 30 based
on the above information. The warrant specified that law enforcemen t could search Bam
and the Trailblazer for, amongst other things, drugs, drug paraphernalia, cellphones, and
the information stored on any cellphones found.
On January 7, 2015, Officer Marshall Titus of the St. Paul Police Department saw
the gray Trailblazer and pulled it over. In the car was a male driver and a female passenger.
Officer Dunaski came to the scene and saw that the driver—appellant Mario Nelson—was

3
the same person he had observed during his investigation . The passenger of the vehicle
was a woman named B. P. Officer Dunaski noticed that B.P.’s p ants were undone or
unzipped. The officer later explained that, in his experience, the crotch of a person’s pants
“is often a quick stash spot in an emergency situation.” B.P. indicated to Officer Dunaski
that she had marijuana in her pants. A female officer, Colleen Rooney, was called to the
scene to assist in searching B.P. and recovering the marijuana. B.P. was placed in the back
of Officer Rooney’s squad car with the door open and her legs outside of the car while
Officer Rooney began a search of her body. Within a minute of being placed in the squad
car, B.P. indicated that she wished to speak to one of the other officers . Officer Joshua
Raichert, a St. Pau l Police o fficer who was also on the scene, spoke with B.P. on the
sidewalk next to the squad car about two and a half minutes after she was initially put in
the squad car. During the conversation, which was not recorded, B.P. told Officer Raichert
that Nelson had handed her something just prior to being pulled over and that she had
hidden it in her underwear. B.P. then removed from her pants some bags containing what
appeared to be marijuana and crack cocaine and gave them to Officer Raichert.
Officer Dunaski and the other officers searched the Trailblazer . They found and
seized two cellphones. B.P. and Nelson were brought to the jail. Officer Raichert then
interviewed B.P. at the jail. The interview, which took place more than an hour and a half
after Officer Titus pulled the Trailblazer over, was audio recorded. In the interview, B.P.
reiterated what she had told Officer Raichert on the sidewalk earlier . She also confirmed
that she gave the officers the plastic bags with the drugs at the scene. After the interview,
officers brought B.P. back to the Trailblazer, and she was not booked into the jail.

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Nelson was c harged with one count of second -degree controlled substance crime
(sale of cocaine) and one count of third -degree controlled substance crime (posse ssion of
cocaine). He moved to compel the identity of the CRI, to suppress evidence, including the
cellphones found in the Trailblazer, and to dismiss the case for lack of probable cause. The
district court denied Nelson’s motions. During the ensuing jury trial, B.P. was called as a
witness. When asked about January 7, 2015 , she testified that she did not remember
anything from that day and invoked her Fifth Amendment right against self-incrimination.
The state had Officer Raichert testify regarding his conversation with B.P. on the sidewalk.
Defense counsel objected, a rguing that this was hearsay. The district court overruled the
objection, concluding that the testimony fell under the excited -utterance exception to the
hearsay rule . The state also offered into evidence the audio recording of B.P.’s jail
interview. Defense counsel objected to this as well, but the district court allowed it in as
an excited utterance. During his testimony, Officer Dunaski also read off text messages
found on one of the cellphones found in the Trailblazer. Some of these messages related
to drug use and drug sales.
The jury found Nelson guilty of second-degree controlled substance crime. He was
sentenced to 95 months in prison. This appeal follows.
D E C I S I O N
Nelson makes three principal arguments on appeal. He first argues that the search
warrant was not supported by probable cause. He then argues that the district court should
have suppressed the evidence found on the cellphone because either the police needed a
second warrant to search his phone or, alternatively, there was insufficient probable cause

5
to support a search of the phone in the first warrant. And finally , he argues that B.P.’s
hearsay statements to Officer Raichert were not excited utterances and should not have
been admitted as substantive evidence at trial.
I. Probable Cause
Nelson argues that there was insufficient probable cause to support the issuance of
the search warrant. We review a district court’s decision to issue a search warrant to see if
there was a “substantial basis for concluding that probable cause existed.” State v. Fawcett,
884 N.W.2d 380, 384 (Minn. 2016) (quotation omitted). We limit our review to the
information contained in the warrant application and its supporting affidavit. Id. at 384–
85. And we apply the totality -of-the-circumstances test articula ted by the United States
Supreme Court in Illinois v. Gates, 462 U.S. 213, 238–39, 103 S. Ct. 2317, 233 2 (1983).
State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). The Gates court explained that:
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 concluding that probable
cause existed.
Gates, 462 U.S. at 238 –39, 103 S. Ct. at 23 32 (quotation omitted). In conducting this
review, we afford great deference to the district court’s decision to issue a search warrant .
State v. Rochefort, 631 N.W.2d 802, 804–05 (Minn. 2001); see also Gates, 462 U.S. at 236,
103 S. Ct. at 2331 (“[A]fter -the-fact scrutiny by c ourts of the sufficiency of an affidavit
should not take the form of de novo review.”). Thus, close “cases should be largely

6
determined by the preference to be accorded to warrants.” Fawcett, 884 N.W.2d at 385
(quotation omitted).
Nelson splits his pr obable-cause argument into four parts. He argues that (1) the
warrant affidavit did not establish the CRI’s veracity; (2) the affidavit did not establish the
CRI’s basis of knowledge for the tip; (3) the police did not adequa tely corroborate the
CRI’s tip; and (4) the warrant was inappropriate because it did not establish a nexus
between the criminal activity and the places to be searched.
A. Veracity
An informant’s veracity is one of the important things to consider when analyzing
the totality of the circumstances of the issuance of a warrant. See Gates, 462 U.S. at 238,
103 S. Ct. at 2332 . In Minnesota, we sometimes refer to this as reliability. See State v.
Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (using “veracity” and “reliability”
interchangeably). In Ward, this court identified six “considerations” or factors to
determine “the reliability of an informant who is confidential but not anonymous to police.”
Id. The factors are:
(1) a first-time citizen informant is presumably reliable; (2) an
informant who has given reliable information in the past is
likely also currently reliable; (3) an informant’s reliability can
be established if the police can corroborate the information; (4)
the informant is presumably more reliable if the informant
voluntarily comes forward; (5) in narcotics cases, “controlled
purchase” is a term of art that indicates reliability; and (6) an
informant is minimally more reliable if the informant makes a
statement against the informant’s interests.
State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004) (citing Ward, 580 N.W.2d at 71).

7
Nelson essentially argues that the warrant affidavit did not provide enough
information for the district court to properly assess the confidential informant’s veracity.
In examining the warran t affidavit, we note that factors one, five, and six do not apply.
And it is unclear whether the fourth factor applies. However, the second and third factors
do apply, and they support the issuance of the search warrant.
The second factor is the past reliability of the informant. Id. In State v. Wiley, the
Minnesota Supreme Court considered a statement in an affidavit that an informant “has
been used over several years successfully” and interpreted this to mean “that the informant
had provided accurate information to the police in the past.” 366 N.W.2d 265, 269 (Minn.
1985). The supreme court held that this was sufficient for the magistrate to find that the
informant had provided reliable information. Id. And in citing to the same passage from
Wiley, this court in Ross explained that “[t]he second factor is fulfilled by a simple
statement that the informant has been reliable in the past.” 676 N.W.2d at 304. We further
stated that “[t]here is no need for law -enforcement officers to provide specifi cs of the
informant’s past veracity.” Id. The warrant affidavit in this case explained that
The CRI has provided information that has led to search
warrants being written & executed, several arrests being made,
and the recovery of narcotics. Many of these arrests resulted
in successful prosecution. Your Affiant has worked with this
CRI previously and information received from them has been
deemed to be very accurate and reliable.
This statement more than satisfies the demands of Ross and Wiley. And, contrary to
Nelson’s requests, we will not demand more of law enforcement than our binding
precedent already requires.

8
The third factor addresses police corroboration of the CRI’s information. Id.
Officer Dunaski conducted an investigation after receiving the information about Bam. He
saw a man matching the CRI’s description of Bam drive to the parking lot that the CRI had
described, in the car that the CRI had described, and appear to deal drugs as the CRI had
described. In short, the CRI’s veracity was corroborated by Officer Dunaski’s
investigation. And because factors two and three strongly support the CRI’s veracity,
Nelson’s argument on the issue fails.
B. Basis of Knowledge
An informant’s basis of knowledge is another important thing to consider when
analyzing the totality of the circumstances of the issuance of a warrant. Gates, 462 U.S. at
238, 103 S. Ct. at 233 2; State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) , review
denied (Minn. July 25, 2000). An informant’s basis of knowledge can be shown two ways.
It can be demonstrated by first-hand information like a controlled buy. Cook, 610 N.W.2d
at 668. Or it can be demonstrated “indirectly through self -verifying details that allow an
inference that the information was gained in a reliable way and is not merely based on a
suspect’s general reputation or on a casual rumor circulating in the criminal underworld.”
Id. The affidavit does not indicate that the CRI had firs t-hand information about Nelson,
so we instead look for self-verifying details.
This court undertook such an analysis in Cook after it determined that the informant
in that case did not have direct knowledge for a tip. Id. The court looked at the detai ls
provided by the informant and determined that they “did not predict any future behavior
on Cook’s part. Rather, the details were simply a report of Cook’s appearance and present

9
location, details easily obtainable by anyone, not necessarily by someone with inside
information on Cook.” Id. at 669. The Ross court also undertook this analysis. 676
N.W.2d at 304–05. In doing so, the Ross court distinguished its case from Cook, explaining
that the informant in Ross had provided information that “predicte d future behavior,”
including that the defendant “would appear at a specified address at a specified time in a
described vehicle, all of which was verified by law -enforcement prior to the search.” Id.
at 305.
We conclude that this case is akin to Ross. Unlike Cook, where the “details did not
predict any suspicious behavior,” 610 N.W.2d at 668, the details provided by the CRI here
did the same thing as in Ross and “predicted future behavior,” 676 N.W.2d at 305. Most
significantly, the CRI accurately p redicted—as confirmed by Officer Dunaski ’s
investigation—that a man matching Bam’s description would drive a gray 2002 Trailblazer
to a specified parking lot to deal drugs. Accordingly, Nelson’s argument that the warrant
affidavit did not establish the CRI’s basis of knowledge is unpersuasive.
C. Corroboration
Nelson asserts that the warrant affidavit’s veracity and basis -of-knowledge
deficiencies are not saved by police corroboration. But this argument is moot since we
have already held that the veracity and basis of knowledge were not deficient in the first
place, obviating the need for any such saving. Moreover, Officer Dunaski’s corroborative
investigation already factored into both analyses when we determined that the officer’s
observations of a man m atching Bam’s description using the gray Trailblazer to conduct

10
what appeared to be a drug deal in the specified parking lot supported both the veracity and
basis of knowledge of the CRI’s tip.
D. Nexus
Nelson’s last argument with regard to the warrant is t hat there was an insufficient
nexus between the evidence sought and the places to be searched. Probable cause requires
“that there is a fair probability that the evidence will be found at the specific site to be
searched.” State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014). In other words, there
must be a sufficient nexus between the two. Id. This nexus can be inferred from the totality
of the circumstances and does not require direct observation of the evidence of the “crime
at the place to be searc hed.” Id. Circumstances to be considered in making this
determination “are the type of crime, the nature of the items sought, the extent of the
defendant’s opportunity for concealment, and the normal inferences as to where the
defendant would usually keep the items.” Id. at 623. In this case, the evidence sought was
evidence of drug dealing, and the places to be searched were Bam and the Trailblazer. The
CRI in this case told law enforcement that Bam was using a Trailblazer with a specific
license plate number to sell drugs. Officer Dunaski performed his own investigation and
saw someone who appeared to be Bam using the specified Trailblazer to conduct what
appeared to be a drug sale. There could be no more logical place s for officers to search
than the person described as selling drugs and the vehicle described as being used to sell
those drugs.
None of Nelson’s arguments are persuasive. We conclude that the district court had
a substantial basis for issuing the search warrant.

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II. The Cellphone
Nelson next argues that the district court erred by not suppressing the informat ion
taken from the cellphones. When reviewing pretrial orders on motions to suppress
evidence, we review the findings of fact for clear error an d the legal determinations de
novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
Nelson asserts that the warrant did not authorize a search of the cellphones. But our
review of the warrant shows that it specifically authorized law enforcement to search Bam
and the Trailblazer for property, including “cellular phones . . . , pagers, electronic storage
devices” and “[a]ll electronic contents, information, and files of the phone memory, SIM
card memory, or other data storage device, including but no t limited to voice mail, email,
text messages, call logs, contact lists, digital images, and videos.” Accordingly, we
conclude that the search warrant contemplated and authorized law enforcement to search
the cellphones.
Nelson argues in the alternativ e that the warrant’s authorization to search the
cellphones was not supported by probable cause because the warrant affidavit “provided
no basis to believe that a cellphone would contain evidence of a crime or that its data would
contain evidence of criminal activity.” This asks us to determine if there was a substantial
basis for finding probable cause, Fawcett, 884 N.W.2d at 384, by using a totality -of-the-
circumstances test, Gates, 462 U.S. at 238 –39, 103 S. Ct. at 233 2, and affording “great
deference” to the district court’s determination, Rochefort, 631 N.W.2d at 804–05.
Nelson focuses on whether there was a direct connection or nexus between the
evidence sought and the cellphones. Probable cause requires “that there is a fair probability

12
that the evidence will be found at the specific site to be searched.” Yarbrough, 841 N.W.2d
at 622. This nexus can be inferred from the totality of the circumstances. Id. Some of
those circumstances considered “are the type of crime, the nature of the items soug ht, the
extent of the defendant’s opportunity for concealment, and the normal inferences as to
where the defendant would usually keep the items.” Id. at 623.
Courts have long recognized that cellphones are used in the drug trade. See United
States v. Lazcano-Villalobos, 175 F.3d 838, 844 (10th Cir. 1999) (“[C]ellular telephones
are recognized tools of the drug-dealing trade.”); United States v. Sasson, 62 F.3d 874, 886
(7th Cir. 1995) (referring to cellphones as one of the “usual trappings” of a person involved
in the drug trade). In this case, the search warrant was issued because there was probable
cause to believe that Bam was dealing drugs out of a gray 2002 Trailblazer. It flows
logically that if Bam were dealing drugs from the Trailblazer, he could be using a cellphone
to arrange the sales. Considering the totality of the circumstances and the great deference
we accord to warrant -issuing magistrates, we conclude that there was a substantial basis
for the district court’s probable cause determination authorizing a search of the cellphones
found in the gray Trailblazer.
III. Hearsay
Nelson next argues that the district court erred by admitting B.P.’s hearsay
statements about the drugs as excited utterances. Rulings on admission of evidence are
reviewed for an abuse of discretion. State v. Zumberge , 888 N.W.2d 688, 694 (Minn.
2017).

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Hearsay is not admissible unless it falls under an exception. Minn. R. Evid. 802.
Minn. R. Evid. 803 pr ovides hearsay exceptions, including excited utterances. Minn. R.
Evid. 803(2). An excited utterance is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event
or condition.” Id.; see also State v. Davis, 820 N.W.2d 525, 536 (Minn. 2012). There are
three requirements that must be met for hearsay to qualify as an excited utterance: (1) there
was a startling event or condition; (2) the hearsay statement relates to the startling event or
condition; and (3) the declarant was “under a sufficient aura of excitement caused by the
event or condition to insure the trustworthiness of the statement.” Minn. R. Evid. 803 1989
comm. cmt; see also State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).
The district court found that the circumstances preceding B.P.’s statement—Nelson
handing B.P. drugs as the police were stopping Nelson’s Trailblazer and asking her to hide
them—constituted a startling event. This finding supports the first two requirements for
an excited utterance: there was a startling event and the statement relates to it. See Daniels,
380 N.W.2d at 782. We conclude that based upon this record, the district court did no t
clearly err in its finding.
That leaves the third requirement, which asks whether B.P. was sufficiently under
the aura of the exciting event when she made the statement . See id. Nelson argues that
B.P.’s statement fails this requirement because of the amount of time that had passed
between Officer Titus pulling the Trailblazer over and B.P.’s statement on the sidewalk .
But our caselaw is clear that “ [t]here are no strict temporal guidelines for admitting an
excited utterance.” State v. Martin , 614 N.W.2d 214, 223–24 (Minn. 2000) (quotation

14
omitted). So while the lapse of time between the stop and the sidewalk interview with
Officer Raichert distinguishes B.P.’s statement from a typical excited utterance , it is not
dispositive in deciding whether the statement was an excited utterance.
The district court based its finding that B.P. was under the aura of the exciting event
on Officer Raichert’s testimony that B.P. appeared nervous and desperate when she spoke
to him.1 “The trial court, in its discretion, determines whether the declarant was under the
aura of excitement, and we review the determination for an abuse of discretion.” Id. at 224
(quotation and citation omitted) . Even if this is not a typica l example of an excited
utterance, we cannot say that the district court abused its discretion in determining that B.P.
was under the aura of the exciting event when there was testimony that supported this
finding.2
We also note that even if B.P.’s statement were not an excited utterance it would fit
under the residual hearsay exception.
A statement not specifically covered by R ule 803 or 804 but
having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the

1 Nelson briefly argues tha t the state did not properly lay a foundation that B.P. was still
under the stress of the exciting event. We conclude that Officer Raichert’s testimony about
his observation of B.P.’s mental state is a sufficient foundation for the finding that B.P.
was still under the stress of the exciting event.
2 The district court also admitted B.P.’s later statement from the jail as an excited utterance.
This statement was given over an hour and a half after the exciting event and in a different
setting. We conclu de that the jail statement does not fall under the excited -utterance
exception, but that its admission at trial was harmless because it was duplicative of B.P.’s
prior statement. See State v. Vang, 774 N.W.2d 566, 576–77 (Minn. 2009).

15
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.
Minn. R. Evid. 807. In determining whether a statement falls under the residual exception,
Minnesota courts are to consider the totality of the circumstances, “looking to all relevant
factors bearing on trustworthiness to determine whether the extrajudicial statement has
circumstantial guarantees of trustworthiness equivalent to the other Rule 803 hearsay
exceptions.” State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006) (quotation omitted).
B.P.’s statement to the police that she had the drugs in her pants was trustworthy because
she made it against her own penal interests by implicating herself in a crime and it
implicated Nelson, who she had a close personal relationship with at the time, in the crime
as well. See State v. Ortlepp , 363 N.W.2d 39 (Minn. 1985) ( noting that statement was
more reliable because it was made against declarant’s penal interest) ; see also Davis, 820
N.W.2d at 537 (stating that “declarant’s relationship to the parties” is relevant to
statement’s trustworthiness). 3 Looking to Rule 807 ’s requirements, we are satisfied that
the statement is evidence of a material fact and that it is more probative than other evidence
available. We are also satisfied that the interests of justice would best be served because
Nelson had the opportunity to cross-examine both B.P. and Officer Raichert with regard to
the statement. We conclude that the totality of the circumstances would favor admitting
B.P.’s statement under the residual exception were it not admissible as an excited utterance.

3 The issue is not before us since the parties did not raise the issue below or on appeal, but
we note that B.P.’s statement may fall under the statement against penal interest exception
to hearsay since her statements tended to inculpate her in drug dealin g and obstruction of
justice by hiding evidence. Minn. R. Evid. 804(b)(3).

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The search warrant was supported by probable cause because the warrant affidavit
demonstrated the CRI’s veracity, the CRI’s basis of knowledge, and the nexus between the
evidence sought and the places to be searched. The search warrant also specifically
contemplated a search of the cellphones found in the gray Trailblazer, and the authorization
to search the cellphones was supported by probable cause because cellphones are
commonly used in the drug trade and there was a fair probability that evidence of criminal
activity would be found on the cellphones. And finally, the district court did not abuse its
discretion in admitting B.P.’s statements made at the scene of the arrest.
Affirmed.