State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0441

State of Minnesota,
Respondent,

vs.

Luis Miguel Gallegos,
Appellant.

Filed March 4, 2019
Affirmed
Reyes, Judge

Kandiyohi County District Court
File No. 34-CR-17-622

Keith Ellison, Minnesota Attorney General, Peter Magnuson, Assistant Attorney General,
St. Paul, Minnesota; and

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, Jodi L. Proulx, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his conviction s of first-degree controlled-substance sale and first -
degree controlled -substance possession, appellant argues that the search warrant lacked

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probable cause to support a search of his residence for evidence of illegal drugs, drug sales,
or drug distribution. Appellant argues that, as a result, the district court erred in failing to
suppress evidence obtained during the search-warrant execution and in failing to vacate his
convictions. We affirm.
FACTS
In June 2017, officers went to appellant Luis Miguel Gallegos’s residence to execute
an arrest warrant for him after he failed to appear in court. After the officers made contact
with appellant, he told them that he believed he had a court hearing that Friday and had
paperwork reflecting that. He told the officers that he wanted them to review the paperwork
and that he wanted to collect some of his personal items before going to jail. The officers
agreed and escorted appellant upstairs. Officers eventually took him outside and conducted
a search of appellant incident to his arrest. One of the officers discovered a syringe in the
pocket of appellant’s pants. The syringe had a brownish substance on the tip of the needle.
The officer asked appellant what the needle was but appellant did not respond. Appellant
eventually claimed that the syringe was a rabies shot for his dog.
The officers transported appellant to jail and conducted a Narcotics Identification
Kit (NIK) test on the brownish substance found on the needle. The test indicated a positive
result for methamphetamine. The officers then applied for a warrant to search appellant’s
residence. The issuing court signed the search -warrant application, and officers executed
the search warrant on the same day as appellant’s arrest . Pursuant to the execution of the
search warrant, officers seized several items from appellant’s bedroom, including three
quart-size bags and four small bags containing a white crystal substance which field-tested

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positive for methamphetamine with a total weight of 71.6 grams. The search also yielded
three digital scales and a mirror1, all of which contained residue that field-tested positive
for methamphetamine. Based upon the evidence seized, the state charged appellant with
first-degree controlled-substance sale, in violation of Minn. Stat. § 152.021, subd.
1(1) (2016), and first-degree controlled-substance possession, in violation of Minn. Stat.
§ 152.021, subd. 2(a)(1) (2016).
Appellant filed several pretrial motions, including omnibus motion s to suppres s
evidence and to dismiss, arguing that the search warrant lacked probable cause to search
his residence because the search -warrant application was based solely on the existence of
the methamphetamine-laced syringe found on appellant’s person. Following a hearing, the
district court issued an omnibus order denying both motions. The district court held that
there was no basis for suppression of evidence or statements because, under the totality of
the circumstances, the issuing court had a substantial basi s for determining that probable
cause supported the search warrant.
Appellant submitted the case to the district court on stipulated evidence, pursuant to
Minn. R. Crim. P. 26.01, subd. 4, to appeal his motions to suppress evidence and to dismiss.
The di strict court found appellant guilty of both counts. The district court sentenced
appellant to 65 months in prison on count one, but imposed no sentence on count two. This
appeal follows.

1 Officers discovered two of the three digital scales in the same location as the small bags
containing the white crystal substance. Officers found the mirror with residue on top of
appellant’s dresser.

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D E C I S I O N
Appellant argues that, because the search-warrant application was based solely on
the discovery of a small amount of methamphetamine found on his person , the warrant
lacked probable cause to search his residence for evidence of illegal drugs , drug sales, or
drug distribution. Appellant argues, in the alternative, that, even if this court finds that his
pretrial motions failed to preserve an overbreadth argument for appeal, we may
nevertheless address the argument in the interests of justice. We are not persuaded.
Generally, litigants are bound on appeal to the theory upon which they tried the
action in district court, and we will not consider matters not argued to and considered by
the district court. State v. Bakken, 871 N.W.2d 418, 422 (Minn. App. 2015) , aff’d (Minn.
Aug. 3, 2016). In district court, appellant argued in his pretrial motions that the discovery
of a methamphetamine-laced syringe on his person “ [did] not mean there [was] evidence
of ongoing criminal activity inside [ his] residence.” At the omnibus hearing, appellant
referred to his pretrial motions and argued that the warrant lacked probable cause to search
his residence because it was based solely on the methamphetamine -laced syringe .
Appellant argues on appeal that the warrant lacked probable cause to support a search of
his residence for evidence of illegal drugs, drug sales, or drug distribution based on the
small amount of methamphetamine found on his person. The state contends that appellant
is attempting to advance a new theory on appeal that the search warrant was overly broad,
which is forfeited.
Typically, an issue not raised at an omnibus hearing is forfeited. State v. Lieberg,
553 N.W.2d 51, 56 (Minn. App. 1996). However, while a pretrial motion to suppress

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should provide the state with reasonable notice of issues raised by the defendant, “[i]n
practice, the defense counsel at the outset of an omnibus hearing often makes a rather
general statement of the issues.” State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992).
In Balduc, the state contended that defendant had forfeited a lack-of-particularity
challenge to a search warrant by failing to raise the issue with specificity prior to the
omnibus hearing. 514 N.W.2d 607, 609 (Minn. App. 1994). This court held that defense
counsel provided the prosecutor with sufficient notice of a particularity challenge through
a letter indicating that “all usual omnibus hearing issues” would be contested. Id. at 610.
Here, although appellant’s pretrial argument is more general than the argument he makes
on appeal, the two arguments are not meaningfully different. We have stated that we do
not believe the supreme court intended to require a detailed defense omnibus hearing in all
circumstances. Balduc, 514 N.W.2d at 609-10. Because we conclude that appellant
preserved an overbreadth argum ent on appeal, we need not address appellant’s in -the-
interest-of-justice argument.
We turn now to the pretrial issue preserved for appeal . Minn. R. Crim. P. 26.01,
subd. 4(f). Our deferential review of the issuing judge’s conclusion of probable cause is
limited to determining that a substantial basis supports that conclusion. State v. McGrath,
706 N.W.2d 532 , 539 (Minn. App. 2005) , review denied (Minn. Feb. 22, 2006) . A
substantial basis for a probable cause determination exists if, under the totality of
circumstances set forth in the search -warrant affidavit, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. State v. Souto, 578
N.W.2d 744, 747 (Minn. 1998) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

6
2317, 2332 (1983)). A court may sever invalid portions of a warrant and properly admit
evidence seized pursuant to the valid portions. United States v. Fitzgerald, 724 F.2d 633,
636–37 (8th Cir. 1983), cert. denied, 466 U.S. 950 (1984); see also United States v.
LeBron, 729 F.2d 533, 537 n. 2 (8th Cir. 1984) (infirmity of part of warrant requires
suppression of evidence seized pursuant to that part, but not suppression of anything
described in valid portions of warra nt or lawfully seized —on plain view grounds, for
example—during their execution).
The discovery of a single methamphetamine-laced syringe on appellant’s person did
not provide th e issuing judge with probable cause to authorize a search of appellant’s
residence for evidence of drug sales and drug distribution. See Souto, 578 N.W.2d at 751
(determining there was little reason to believe appellant had evidence of drug dealing
absent establishment of ongoing activity or that appellant was a drug dealer). However,
absent the deficient portions of the search warrant relating to evidence of drug sales and
drug distribution, the record provides a substantial basis to support a search of his residence
for drugs. Here, the search-warrant affidavit stated that, during a lawful search of appellant
incident to his arrest, police found a single methamphetamine-laced syringe on his person.
Immediately prior to the arrest, appellant had been alone inside his residence. Given the
totality of the circumstances, these facts indicate a fair probability that additional evidence
of drugs would be found in appellant’s residence and established the required “direct
nexus” between possession of illegal drugs and a search of appellant’s residence. McGrath,
706 N.W.2d at 539.
Affirmed.