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This opinion will be unpublished and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
A19-0499

State of Minnesota,
Respondent,

vs.

Jeron Demar Faulkner,
Appellant.

Filed February 18, 2020
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-10173

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After a police officer observed heavy foot and vehicle traffic around appellant Jeron
Demar Faulkner’s residence and discovered drug paraphernalia in his trash, he applied for

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a warrant to search Faulkner’s home. A district court judge issued the warrant, and police
discovered ammunition and drugs in Faulkne r’s home. Now Faulkner challenges the
validity of that search warrant. Because probable cause supported the warrant, we affirm.
FACTS
In March 2017, a Minneapolis police officer was conducting an unrelated narcotics
investigation near appellant Jeron Demar Faul kner’s house. During that investigation,
which involved much su rveillance, the officer observed a significant amount of foot and
vehicle traffic around Faulkner’s home. According to the officer, individuals would arrive,
enter Faulkner’s home, and leave a few minutes later.
Based on these observations, the officer re searched the home’s address in a database
and learned that Faulkner was the current resident. A review of Faulkner’s criminal history
revealed previous felony convictions for second-degree possession of a controlled
substance and being a prohibited person in possession of a firearm.
After learning this information—and sometim e in the 72 hours before he applied for
a warrant—the officer searched through the garbage in a container outside Faulkner’s
house. The trash pull revealed the following items: several marijuana stems, baggies, a
box of baking soda, a marijuana end, and mailings addressed to Faulkner.
The officer then applied for a warrant to search Faulkner’s house, believing that
narcotics were being sold or stored at the resi dence. In the search-w arrant affidavit, the
officer outlined his training and experience, which included conducti ng narcotics-related
investigations and working as a task-force offi cer with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) for four years. The officer also described his observations

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and the results of the garbag e search. A judge issued th e search warrant, finding that
probable cause existed.
Eight days later, police searched Faulkner’s house. During the search, the officers
found a 45-caliber magazine with ammunition, a plastic case containing narcotics, a shoe
box containing suspected marijuana, a digital scale, $280 in cash, and mailings addressed
to Faulkner. Based on the discovery of thes e items, the state charge d Faulkner with one
count of being a prohibited person in po ssession of ammunition and two counts of
fifth-degree drug possession.
Before trial, Faulkner moved to suppress the evidence discovered during the search
of his home, arguing that the search warrant lacked probable cause and relied on stale
information. The district court denied Fa ulkner’s motion. It reasoned that under the
totality of the circumstances—which included the officer’s training and experience, his
observations of heavy foot and vehicle traffic, Faulkner’s criminal record, and the evidence
found during the garbag e search—the facts in the search -warrant affidavit established
probable cause. Additionally, th e district court determined that the information relied on
was not stale, pointing to indicia of ongo ing criminal activity and the contraband
discovered during the garbage search.
After the district court denied his motion to suppress, Faulkner’s case proceeded to
trial, where a jury found him guilty of all char ges. The district court sentenced Faulkner
to 60 months in prison fo r being a prohibited person in possession of ammunition and
21 months for one count of fi fth-degree drug possession, to be served concurrently.
Faulkner appeals.

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D E C I S I O N
Faulkner argues that because the search warrant relied on a single trash pull, the
warrant for his house was not su pported by probable cause. Further, Faulkner maintains
that the warrant was stale because it was execu ted at least eight days after the officer’s
observations and the garbage search. We address each argument in turn.
Evidence Supporting the Search Warrant
Faulkner claims that because the warrant relied on a single trash pull, probable cause
was not established. Both the United States and Minnesota Constitutions provide that no
warrant shall be issued without a showing of probable cause. U.S. Const. amend. IV; Minn.
Const. art. 1, § 10. Probable cause exists when “there is a fair probability that contraband
or evidence of a crime will be found.” State v. Yarbrough , 841 N.W.2d 619, 622
(Minn. 2014) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
In reviewing a probable-cause determinati on, this court uses a “totality of the
circumstances approach,” meaning that “a colle ction 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) (quotation omitted).
When determining whether probable caus e supports the issuance of a search
warrant, “our only consideration is whether the issuing judge had a substantial basis for
concluding that probab le cause existed.” State v. Fawcett , 884 N.W.2d 380, 384
(Minn. 2016) (quotation omitted). And the esse ntial question for this court’s review is
“whether the totality of facts and circumstances described in the affidavit would justify a
person of reasonable caution in believing that the items sought were located at the place to

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be searched.” State v. Ruoho , 685 N.W.2d 451, 456 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004). In analyz ing this question, “[o]ur review is limited to the
information presented in the warrant a pplication and supporting affidavit.” Fawcett,
884 N.W.2d at 384-85. And the task of the issuing judge “is to make a practical,
common-sense decision.” Yarbrough, 841 N.W.2d at 622.
We turn to the search warrant applica tion and affidavit, wh ich contained several
pieces of relevant information. First, the affidavit described the officer’s training and
experience, including his 11 years as a police officer, four years serving as a task-force
officer with the ATF, and his experience conducting narcotics-related investigations. Next,
the officer described his observations of Faulkner’s home. These included “an enormous
amount of foot and vehicle tr affic,” involving individuals en tering Faulkner’s residence
and departing shortly after. Based on the officer’s training and experience, the traffic
appeared related to drug sales.
The affidavit also detailed the officer’s re search into Faulkner and his criminal
history, including a prior conviction for seco nd-degree drug possession. And the officer
described items discovered in Faulkner’s ga rbage, including several marijuana stems, a
marijuana end, drug baggies, a box of baki ng soda (commonly used to cut narcotics,
according to the officer), and mai lings bearing Faulkner’s name . The officer stated that
“[t]he marijuana field tested positive.”
Based on this information, the district court judge found that probable cause existed
and issued the warrant. We agree. The officer’s affidavit described incriminating evidence
found in Faulkner’s trash, including several marijuana stems and a marijuana end. And

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“[c]ontraband seized from a garbage search can provide an independent and substantial
basis for a probable-cause determination.” State v. McGrath, 706 N.W.2d 532, 543 (Minn.
App. 2005), review denied (Minn. Feb. 22, 2006). Acco rdingly, the items discovered
during the trash search alone could have supported the judge’s finding of probable cause.
But in addition to those items, the officer’s affidavit detailed specific observations and
explained how his training and experience led him to believe that the abnormal amount of
foot and vehicle traffic was related to narcotics. See State v. Krech, 399 N.W.2d 203, 206
(Minn. App. 1987) (identifying “incessant traffic of brief visits” as “very significant” when
determining whether probable cause existed), aff’d as modified , 403 N.W.2d 634
(Minn. 1987). When considering the information contained in the warrant application and
the supporting affidavit, the to tality of the circumstances su pports the conclusion that “a
fair probability” existed that contraband would be found in Fa ulkner’s house. See
Yarbrough, 841 N.W.2d at 622. Accordingly, the issuing judge had a substantial basis to
conclude that the facts provided in the warrant affidavit established probable cause.
Staleness of Information
Faulkner also contends that the search warrant lacked probable cause when it was
executed because it was based on stale information. A “delay in executing a search warrant
raises two issues: (1) did the delay violate st atutes, and (2) did the delay cause the search
to become unconstitutional?” State v. King , 690 N.W.2d 397, 401 (Minn. App. 2005),
review denied (Minn. Mar. 29, 2005). In Minnesota, the relevant statute allows police
officers ten days to execute a search warrant. Minn. Stat. § 626.15(a) (2016). Here, police

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executed the warrant within th e 10-day statutory timeframe, so no statutory violation
occurred.
The more difficult question becomes “whe ther the delayed execution constituted a
constitutional violation.” King, 690 N.W.2d at 401. “Whether a delay in executing a search
warrant is unconstitutional depends on whether the probable cause recited in the affidavit
still exists at the time of execution of the warrant—that is, whether it is still likely that the
items sought will be found in the place to be searched.” State v. Yaritz, 287 N.W.2d 13,
16 (Minn. 1979).
But “[c]ourts have refused to set arbitrar y time limits or to establish a rigid formula
in making the determination of whether proba ble cause underlying a search warrant has
grown stale.” King, 609 N.W.2d at 401. Rather, courts take an approach of common sense
and flexibility, considering the ci rcumstances of each case. State v. Jannetta,
355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). The
Minnesota Supreme Court has identified four factors to consider when evaluating the
staleness of information: (1) any indications of ongoing criminal activity, (2) whether the
items sought are incriminating or innocuous, (3) whether the items are easily disposable or
transferable, and (4) whether th e items are of enduring utility. State v. Souto ,
578 N.W.2d 744, 750 (Minn. 1998). And “[w]hen an activity is of an ongoing, protracted
nature, the passage of time is less significant.” Id.
Here, the district court concluded that the information supporting the warrant was
not stale when police searched Faulkner’s home. In reaching this conclusion, the district
court noted that the most significant factor was the indication of ongoing criminal activity

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at Faulkner’s residence. As explained by the district court, the officer observed suspicious
activity he believed indicated narcotics trafficking on several occasions spanning multiple
weeks. And the incriminating nature of the items found in Faulkner’s trash supported this
suspicion. Based on these indications of on going criminal activity and the incriminating
nature of the evidence found during the garbage search, the district court determined that
executing the search warrant eight days after its issuance was constitutional.
The district court’s conc lusion is sound. The affi davit supporting the warrant
application explained that, over several weeks, the officer observed “an enormous amount
of foot and vehicle traffic” th at appeared to be related to drugs. This supports the
conclusion that ongoing criminal activity may have been occurring at Faulkner’s house.
Further, the discovery of incriminating evid ence in Faulkner’s trash lends even more
support to the officer’s assertion that crimin al activity at Faulkner’s house was ongoing.
In addition to the overtly criminal items discovered, the officer noted that other seemingly
innocuous items, like the box of baking soda, can be involved with illegal activity. Because
the officer’s observations and the evidence found during the garbage s earch indicate that
there may have been ongoing criminal activity at Faulkner’s, the passage of time between
the issuance of the warrant and its execution is less significant. See Souto, 578 at 750.
Still, Faulkner contends that there was no reliable evidence of ongoing criminal
activity. In support, he notes “that absent additional facts tending to show otherwise, a
one-shot type of crime, such as a single instan ce of possession or sale of some form of
contraband, will support a findi ng of probable caus e only for a few days at best.”
State v. Cavegn, 356 N.W.2d 671, 673 (Minn. 1984 ). But although only one garbage

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search occurred, the officer observed “an enormous amount” of suspicious foot and vehicle
traffic near Faulkner’s home “over the course of several weeks.” And appellate courts have
upheld multi-day delays in executing search warrants when the provided facts establish
probable cause to show the repeated sale of drugs. Id. (concluding that probable cause was
not stale when a search warrant stated that a controlled buy occu rred “within the past
week”); see also Yaritz, 287 N.W.2d at 17 (six-day delay between issuance of warrant and
execution was reasonable based on information of drug sales); King, 690 N.W.2d at 399,
401-02 (concluding that a seve n-day delay between issuance of search warrant and its
execution did not make probable cause unconstitutionally stale).
In sum, the information supporting the search warrant was not unconstitutionally
stale when police searched Fa ulkner’s home. And because probable cause supported the
warrant, we conclude that the district court properly denied Faulkner’s motion to suppress
evidence discovered in his home.
Affirmed.