State of Minnesota, Appellant,

This opinion will be unpublished and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
A19-0892

State of Minnesota,
Appellant,

vs.

Dalicious Juanita Shawtey Elmore,
Respondent.

Filed December 16, 2019
Reversed and remanded
Smith, John, Judge*

Hennepin County District Court
File No. 27-CR-19-2841

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

Michael O. Freeman, Hennepin County Attorney, Patrick R. Lofton, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Mary F. Moriarty, Fourth District Public Defender, Paul J. Maravigli, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and Smith,
John, Judge.

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

2
U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We reverse and remand the district court’s pretrial order suppressing evidence
obtained as a result of a search warrant executed at respondent Dalicious Juanita Sha wtey
Elmore’s residence because the search warrant application and accompanying affidavit
established probable cause.
FACTS
In late January 2019, a confidential reliable informant (CRI) informed a
Minneapolis police officer that a male was selling crack cocain e “in and around”
Minneapolis. The o fficer identified the male as J .R. The o fficer assisted the CRI in
arranging a contr olled buy with J.R. At the arranged buy location, J.R. arrived in the
passenger seat of a vehicle that was registered to him. J.R. gave the CRI a substance that
field-tested positive for crack cocaine in exchan ge for pre -recorded buy funds. After the
sale, the officer, along with additional officers, followed J.R. from Minneapolis to Elmore’s
residence located in Brooklyn Park. J.R. reported this address to the authorities as his
residence until March 8, 2021.
A few days later, the o fficer applied for a w arrant to search the Brooklyn Park
residence. The search warrant application included the information stated above and the
following relevant information: (1) “Your affiant has had many interactions with [J.R.]
including arrests and undercover crack cocaine buys from [J.R.]”; (2) “[J.R.] is currently
on U.S. [p]robat ion and on [s]upervised [r]elease ”; (3) “[J.R.] is known through this
investigation to utilize a dri ver because he has a Minnesota [i]dentification only that is in

3
a status of Cancelled Inimical to Public Safety”; (4) “Your [a]ffiant and assisting [o]fficers
followed [J.R.] as he drove from the [c]ity of Minneapolis to his home located [in Brooklyn
Park, MN].”
On January 30, the district court issued a warrant for officers to execute that night
at the Brooklyn Park residence. While executing the search warrant, officers discovered
two children alone at the residence. Officers found papers identifying both Elmore and
J.R., who both returned to the residence during the search. In the house, officers recovered
39.18 grams of field-tested crack cocaine in a closet accessible to children, 73.89 grams of
field-tested marijuana, 43.42 grams of field-tested cocaine, and $6,128 in cash.
Elmore was charged with aiding and abetting first -degree drug sale, a iding and
abetting first -degree drug posse ssion, and child endangerment. Elmore moved for
suppression of the evidence obtained as a result of the search warrant and dismissal for
lack of probable cause. Elmore argued that the warrant application failed to establish a
sufficient nexus between the reside nce and J.R.’s drug activity . Elmore also argued the
affidavit lacked evidence that J.R. sold large quantities of drugs or was a “drug wholesaler,”
that he was not observed leaving his residence before he arrived at the controlled buy, and
that the CRI indicated a male was selling “in and around” Minneapolis , but the residence
is in Brooklyn Park.
The state argued the search warrant affidavit established J.R. was a “repeat drug
dealer” because the search warra nt affidavit stated the o fficer had previous undercover
buys with J.R., a CRI purchased crack cocaine from J.R., and J.R. was observed returning
directly to the residence after the sale.

4
The district court determined that the search warrant application and affidavit did
not support a probable cause determination and ordered suppression of all evidence seized
as a result of the search. The court stated the application and affidavit did not demonstrate
J.R. was a “drug wholesaler ,” permitting the court to p resume a nexus between his
residence and the drug activity . The district court also determined that t he CRI reported
J.R. was selling in Minneapolis , but did not name Brooklyn Park . The officers did not
observe J.R. leave the residence and travel to the controlled -buy location, and the
application and affidavit “did not describe any other indicators of narcotics activ ity
observed by the officers.”
D E C I S I O N
The state argues that the district court erred when i t determined there was not a
sufficient nexus between drug activity and the Brooklyn Park residence. Because the state
appealed, this court must determine whether the state demonstrated that the suppression of
the evidence “will have a critical impact on t he outcome of the trial.” Minn. R. Crim. P.
28.04, subd. 2(2). Because Elmore’s charges are based solely on the evidence found at her
residence, the district court’s order had a critical impact on the outcome of the trial. See id.
Our review of a pretrial suppression order is limited to whether “the issuing judge
had a substantial basis for concluding that probable cause existed.” State v. McGrath, 706
N.W.2d 532, 539 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). A substantial
basis means a “fair probability,” given the totality of the circumstances, “that contraband
or evidence of a crime will be found in a particular place.” State v. Zanter , 535 N.W.2d
624, 633 (Minn. 1995). A sufficient nexus between the alleged criminal activity and the

5
place to be searched is required, “particularly in cases involving the search of a residence
for evidence of drug activity.” State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998). We
must give “great deference” to an “issuing judge’s determination of probable cause.” State
v. Valento , 405 N.W.2d 914, 918 (Minn. App. 1987). Review is limited to the search
warrant application and accompanying affidavit. State v. Fawcett, 884 N.W.2d 380, 384 -
85 (Minn. 2016).
The search warrant application and accompanying affidavit established a sufficient
nexus between drug activity and the Brooklyn Park residence. The affidavit stated J.R. had
prior arrests, had sold drugs in past “undercover crack cocaine buys, ” and is on federal
probation. The affidavit stated J.R. sold crack coc aine to the CRI in a controlled buy,
arrived and left the buy in his vehicle, and officers followed his vehicle from Minneapolis
to the Brooklyn Park residence after the buy. A substantial basis for probable cause is
strengthened by the fact that J.R. was observed returning to the res idence from the
controlled buy because there would be a fair probability that the pre-recorded buy funds—
evidence of the drug sale—were in J.R.’s possession when he returned home.
The state argues the district court erred when it determined that the affidavit failed
to establish that J.R. was a “drug wholesaler.” The Minnesota Supreme Court has created
a distinction between a casual drug user and a “drug wholesaler.” See Novak v. State, 349
N.W.2d 830, 832-33 (Minn. 1984). When assessing the facts in a search warrant affidavit,
the district court can infer a nexus between selling drugs and an individual’s residence if
the individual is a “drug wholesaler,” but cannot presume the same inference, without more
information, if the offender is a casual drug user. See Souto, 578 N.W.2d at 751 (“[T]here

6
was no evidence that Souto was a ‘drug wholesaler’ such that a nexus to her residence
could be presumed.”). Elmore points out that the warrant affidavit did not elaborate on the
prior arrests and undercover buys betwee n J.R. and the officer, it did not state why J.R.
was on probation, and it did not indicate the quantity of crack cocaine J.R. sold to the CRI
in the controlled buy.
The warrant affidavit does not establish J.R. was a “drug wholesaler,” so the issuing
judge could not have inferred a nexus between the drug activity and the residence without
more information. But here, there was more information that created a sufficient nexus
between J.R.’s drug activity and the residence. See id. The search warrant application and
accompanying affidavit established a substantial basis for concluding that probable cause
existed.
We conclude the warrant application and affidavit established pro bable cause and
the district court erred by granting Elmore’s suppression motion. Further, we conclude that
the suppression will have a critical impact on the outcome of the trial and remand for further
proceedings. See Minn. R. Crim. P. 28.04, subd 2(2).
Reversed and remanded.