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This opinion will be unpublished and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
A18-0513

State of Minnesota,
Respondent,

vs.

Amy Kathleen Sparks,
Appellant.

Filed April 29, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-17-16660

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Ted Sampsell-Jones, Special Assistant Public Defender, Ryan Wilson (certified student
attorney), St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Slieter, Judge; and Stauber,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Amy Kathleen Sparks challenges her conviction of fifth-degree
possession and fifth-degree sale of a controlled substance. Appellant argues that a search
warrant lacked probable cause and that the district court erred when it denied appellant’s
motion to suppress evidence found during execution of the search warrant. We affirm.
FACTS
On January 13, 2017, Officer Peterson and other Minneapolis pol ice officers
uncovered a large marijuana growing operation during a search of appellant’s home .
Approximately two weeks later, on January 24, 2017, airport police informed Minneapolis
police that a package addressed to a Minneapolis address contained young, live, marijuana
plants.
Minneapolis police conducted a controlled delivery of the package. Shortly after
leaving the package on the home’s porch, police observed an individual exit the house,
pick up the package, and hand it to appellant , who was waiting in the alley behind the
house. Police then observed appellant drive to her home. Police did not investigate further
at that time because “online research revealed that it can take up to [six] months for young
marijuana plants” to mature.
Approximately six months later, on June 15, 2017, Officer Peterson subpoenaed the
Xcel Energy electricity -usage records of appellant’s home and three neighboring homes
with similar square footage to appellant’s home. Xcel Energy provided the records. The
records showed that appellant’s electricity usage dropped off after the January 13, 2017 ,

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marijuana seizure and had increased steadily following the delivery of the marijuana plants.
Appellant was using significantly more electricity than her neighbors.
On July 6, 2017, Officer Peterson applied for a search warrant of appellant’s house
based on the prior grow operation, the package with live mariju ana plants, and the
electricity-usage records. The warrant was issued. Police executed the warrant and found
32 marijuana plants, containers of marijuana, a digital scale, and marijuana -cultivating
equipment.
Appellant was charged with fifth -degree possession and fifth -degree sale of a
controlled substance . Prior to trial, appellant moved to suppress the evidence ob tained
from the search, arguing that the warrant was not supported by probable cause because the
information about marijuana was stale. Appellant contended that the delay in executing
the warrant “rendered it increasingly unlikely that the facts upon whic h the warrant were
based still existed.” On the day of trial, the district court denied the motion in a ruling from
the bench.
The jury found appellant guilty on both counts. Appellant was sentenced to serve
one year and one day in prison.
This appeal follows.
D E C I S I O N
Appellant raises on appeal, for the first time, an argument pursuant to Carpenter v.
United States, 138 S. Ct. 2206, 2216 (2018). We assume appellant did not present this
argument to the district court because the Carpenter opinion had not yet been issued at the
time of trial. “Usually, we will not decide issues which are not first addressed by the trial

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court and are raised for the first time on appeal even if the issues involve constitutional
questions regarding criminal procedure.” State v. Sorenson, 441 N.W.2d 455, 457 (Minn.
1989). The factual record on this is sue, moreover, is not sufficiently developed and “ ‘[i]t
is not within the province of [appellate courts] to determine issues of fact on appeal. ’”
Fontaine v. Steen , 759 N.W.2d 672, 679 (Minn. App. 2009) (quoting Kucera v. Kucera ,
146 N.W.2d 181, 183 (Minn. 1966)) (alteration in original).
An analysis under Carpenter would require a robust factual record regarding,
among other things, what type of information is reve aled by appellant’s electricity -usage
records. See Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521 (7th
Cir. 2018) (concluding that the collection of digital energy meter data at 15 -minute
intervals was a search under the Fourth Amendment and that, under Carpenter, the third-
party doctrine does not apply to electricity records). Therefore, we decline to consider the
constitutional issue in volving appellant’s electricity -usage records and address only the
staleness argument raised at the district court.
The United States and Minnesota Constitutions provide that no warrant sha ll issue
without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Generally, a search is lawful only if it is executed pursuant to a valid search warrant issued
by a neutral and detached magistrate after a finding of probable cause. Minn. Stat. § 626.08
(2018); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).
When determining whether a search warrant is supported by probable cause,
appellate courts do not engage in a de novo review. State v. McGrath, 706 N.W.2d 532,
539 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Instead, “great deference

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must be given to the issuing [magistrate’s] determination of probable cause.” State v.
Valento, 405 N.W.2d 914, 918 (Minn. App. 1987). When reviewing a decision to issue a
search warrant, an appellate court limits its review to whether the issuing magistrate had a
substantial basis for concluding that probable cause existed. State v. Yarbrough , 841
N.W.2d 619, 622 (Minn. 2014).
To determine whether the issuing magistrate ha d a substantial basis for finding
probable cause, appellate courts look to the “totality of the circumstances.” State v. Wiley,
366 N.W.2d 265, 268 (Minn. 1985). “‘The task of the issuing magistrate is simply to make
a practical, common -sense decision wh ether, given all the circumstances set forth in the
affidavit before him . . . there is a fair probability that contraband or evidence of a crime
will be found in a particular place.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103
S. Ct. 2317, 2332 (1983)).
In reviewing the sufficiency of a search -warrant affidavit under the totality -of-the-
circumstances test, “courts must be careful not to review each component of the affidavit
in isolation.” Id. “[A] collection of pieces of information that would not be substantial
alone can combine to create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11
(Minn. 2004). “Furthermore, the resolution of doubtful or marginal cases should be largely
determined by the preference to be accorded warra nts.” Wiley, 366 N.W.2d at 268
(quotation omitted).
Appellant contends that because the information about the marijuana plants was six-
months old, it is too stale to support a finding of probable cause. “Factors relating to
staleness include whether there is any indication of ongoing criminal activity, whether the

6
articles sought are innocuous or incriminating, whether the property sought is easily
disposable or transferable, and whether the items sought are of enduring utility.” State v.
Souto, 578 N.W.2d 744, 750 (Minn. 1998) . “When an activity is of an ongoing, protracted
nature, the passage of time is less significant.” Id. (citing 2 W. LaFave, Search and Seizure,
§ 3.7(a) at 344-46 (1996)). Information supporting probable cause may not be stale “even
after the passage of several months where the items sought are of enduring utility to their
taker.” State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (quotation omitted).
Appellant was involve d in ongoing criminal activity. M arijuana cultivation is
protracted and continuous in nature —the affidavit noted that marijuana takes six months
to mature. The plants were also of an enduring utility. Approximately six months passed
between the controlled delivery and the search; appellant would likely not have disposed
of the plants before they were matured. In addition, mature plants are not easily disposed
of or transferred.
Further, appellant’s electricity-usage records show that the operation was active at
the time of the warrant application.1 Following the initial seizure and arrest on January 13,
appellant’s energy usage decreased , and subsequent to the delivery of the plants it had
increased steadily. Appellant’s home was consuming considerabl y more electricity than
her neighbors’ homes, and t he affiant noted that increased -energy consumption can be an
indication of a marijuana-growing operation.

1 As noted above, the court does not address appellant’s constitutional challenge for the
reasons described. Therefore, we do not opine whether, absen t the ele ctricity-usage
records, the search warrant is stale.

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We conclude, without consideration of the Carpenter decision’s impact, that the
evidence presented to the magistrate was not stale and indicated that there was a marijuana-
growing operation in appellant’s house. The district court did not err in denying appellant’s
suppression motion.
Affirmed.