State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1310

State of Minnesota,
Respondent,

vs.

Bret Ryne Lott,
Appellant.

Filed October 14, 2024
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge
Concurring specially, Larson, Judge

Ramsey County District Court
File No. 62-CR-22-2375

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Segal , Chief Judge; and
Klaphake, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this appeal from final judgment, appellant argues that his conviction for third-
degree murder must be reversed because the district court erred by denying his motion to
suppress evidence obtained pursuant to search warrants for appellant’s Facebook
Messenger and cellphone accounts. In the alternative, appellant seeks a correction of his
sentence, arguing that the state failed to prove that an out-of-state conviction qualifies as a
felony under Minnesota law. We affirm the district court’s denial of appellant’s motion to
suppress, but reverse and remand for resentencing.
FACTS
Just before 10:30 a.m. on November 2, 2019, appellant Bret Ryne Lott called the
nonemergency phone number of the Roseville Police Department to request a welfare
check of a person staying at a motel in Roseville. Lott relayed that he had been staying
with a woman in a motel room that was booked in his name, but that he had left and asked
the woman to message him when she checked out. He said he was worried about the
woman because she had not messaged him back and he “ha[d]n’t seen her since like 2:00
a.m. yesterday.” Law enforcement also received two 911 calls that same morning—one
from the motel manager reporting that a woman was found in room 216 of the motel who
was cold to the touch and appeared to be deceased. The second one was from Lott’s mother
who called 911 at about 11:15 a.m. to report a “possible overdose” in Roseville.
When officers arrived, fire and ambulance personnel were already on the scene. In
room 216, the officers saw a woman, later identified as Z.B., lying on the bed. Z.B. was
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pronounced dead at the scene. Testing revealed the presence of morphine (a metabolite of
heroin) and fentanyl in Z.B.’s blood and the medical examiner determined the cause of her
death was opiate toxicity.
The motel’s registration information showed that room 216 had been rented by a
woman, C.L., for the nights of October 13 through November 2, 2019, and that Lott was
listed as an additional occupant of the room. The motel’s keycard entry system showed
that the door to room 216 had been opened numerous times between 5:20 a.m. and 8:04
a.m. on November 2, and then was not opened again until 11:09 a.m. when housekeeping
entered the room.
Law enforcement followed up with Lott’s mother two days later. Lott’s mother
informed law enforcement that she had received a call from Lott around 8:00 p.m. on
November 1 and that he told her that he had been “using drugs with a girl,” that they had
dozed off, and when he woke up he realized the “girl was not breathing and her lips were
blue.” Lott’s mother said that she told Lott to call 911. She reported that Lott said he
believed the girl was already dead and that he did not think she could have died from $9
worth of drugs. She also told the investigator that her son uses a Facebook account under
the name “Indiana Jonesy” and that she sent him a message via Facebook Messenger, an
instant messaging application, notifying him that she had contacted police.
As part of its investigation of Z.B.’s death, law enforcement also spoke with a
Wisconsin deputy sheriff who was investigating a different overdose death possibly
involving Lott. The Wisconsin deputy stated, as set out in the search-warrant affidavit,
that he had “found Facebook Messenger messages discussing [Z.B.]’s death.”
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Law enforcement applied for a search warrant of Lott’s Facebook data. The
affidavit accompanying the search -warrant application summarized the circumstances of
Z.B.’s death, the information learned from Lott’s mother, and that the motel room “was
registered to a Bret Lott and [C.L.] from October 13, 2019 through November 2, 2019.”
The affidavit also included the following:
Your affiant found the following Facebook user profiles:
• Bret Lott . . . .
• Indiana Jonesy . . . .

The two Facebook user profiles share some photos in common
with one another. The photos match known photos of Bret
Ryne Lott . . . .

In January 2020, your affiant spoke with an investigator from
the Chippewa County Sheriff’s Office in Chippewa Falls,
Wisconsin. The investigator shared that during the course of
an investigation he was conducting, he found Facebook
Messenger messages discussing [Z. B.]’s death. The messages
include conversation about Bret Lott and [C.L.] possibly being
involved.

The affiant included in the affidavit his knowledge “that often times there is
communication between individuals related to criminal activity around the time they are
involved in that activity in the form of text messages, phone calls, and social
media/communication applications including Facebook and Facebook Messenger.”
The district court granted the application for the Facebook search warrant for Lott’s
Facebook data from October 31, 2019, the day before Z.B.’s death, to February 19, 2020,
the day the search-warrant application was submitted. Law enforcement executed the
warrant and obtained evidence indicating Lott sold Z.B. heroin before she died. Lott’s
Facebook messages with Z.B. showed that the two had agreed to meet at the motel so he
5
could sell her some “strait bomb.” Lott included a photograph of what appeared to be
heroin in his messages.
After they had executed the Facebook warrant, law enforcement applied for and
obtained a search warrant of Lott’s cellphone data. The cellphone-warrant application
sought disclosure of records related to Lott’s cellphone number for the period between
October 3, 2019, and December 2, 2019. The affidavit accompanying the search-warrant
application detailed much of the same information as the Facebook- warrant affidavit, but
it also included information from October 31 through November 2 that was obtained as a
result of the execution of the Facebook warrant.
The cellphone data disclosed pursuant to the search warrant showed that Lott first
met up with Z.B. at the motel on October 31 and that Lott was at the motel on the morning
of November 2 with the last ping at 6:44 a.m.
With permission from Z.B.’s family and a separate search warrant, law enforcement
also searched Z.B.’s Facebook data. The search of Z.B.’s data yielded the same Facebook
Messenger exchange detailed in law enforcement’s search of Lott’s data, including Lott’s
message that he had some “strait bomb” and the photograph of what appeared to be heroin.
Law enforcement also recovered a message posted by Z.B. on November 1, 2019, with a
photograph of her and Lott.
Respondent State of Minnesota charged Lott by complaint with third-degree
murder, alleging he “proximately cause[d] the death of [Z.B.]” by selling her heroin and
fentanyl in violation of Minn. Stat. § 609.195(b) (2018). Lott moved to suppress the
evidence obtained pursuant to the warrants for his Facebook and cellphone data. The
6
district court determined that the Facebook warrant was supported by probable cause as to
Facebook Messenger data, but that as to Lott’s other Facebook data the warrant lacked
probable cause and suppressed that data. The district court otherwise denied the motion to
suppress the information obtained from the warrants.
The case proceeded to trial. The only evidence submitted by the state at trial from
the two search warrants involved data created between October 31 and November 2, 2019.
The jury found Lott guilty of third-degree murder. The district court sentenced Lott to 146
months in prison, which is a sentence within the presumptive range based on a criminal-
history score of five. Lott’s criminal -history score included one felony point for a
Wisconsin identity-theft conviction.
DECISION
On appeal, Lott challenges the district court’s denial of his motion to suppress
evidence obtained pursuant to the search warrants for his Facebook Messenger and
cellphone data. He maintains that the warrant for Facebook Messenger data was without
probable cause because of an alleged lack of nexus and that both warrants lacked
particularity. He also maintains, in the alternative, that he is entitled to be resentenced
because the state failed to prove that a Wisconsin conviction for identity theft would qualify
as a felony conviction under Minnesota law.

7
I. The district court did not err in de nying, in relevant part, Lott’s motion to
suppress evidence obtained from the Facebook Messenger and cellphone
search warrants because the issuing judge had a substantial basis for
concluding probable cause existed.

In “reviewing a district court’s probable cause determination made in connection
with the issuance of a search warrant, an appellate court should afford the district court’s
determination great deference.” State v. Rochefort, 631 N.W.2d 802, 804-05 (Minn. 2001)
(reaffirming that appellate courts do not apply the de novo standard of review when
reviewing search warrants, which is different from the standard of review for a warrantless
search). In reviewing a search warrant, the reviewing court considers only whether the
issuing judge had a substantial basis for concluding probable cause existed. Id. at 804. In
our analysis, we first address Lott’s probable-cause challenge to the Facebook Messenger
warrant, and then address his challenges to the lack of particularity in both warrants.
A. The issuing judge had a substantial basis for determining that there was
a sufficient nexis between Lott’s Facebook Messenger data and Z.B.’s
death.

In determining whether to grant a search-warrant application, the issuing judge must
“make a practical, common-sense decision whether, given all the circumstances set forth
in the 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 (1983)). “Elements bearing on this probability
determination include information establishing a nexus between the crime, objects to be
seized and the place to be searched.” State v. Jenkins, 782 N.W.2d 211, 223 (Minn. 2010).
Our review is limited to “the warrant application and supporting affidavits.” State v.
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Wiggins, 4 N.W.3d 138, 145 (Minn. 2024); see also State v. Hill, 918 N.W.2d 237, 242
(Minn. App. 2018) (reviewing a challenge to the “four corners” of the warrant affidavit).
And in “doubtful or marginal cases,” our determination is guided “by the preference to be
accorded to warrants.” Wiggins, 4 N.W.3d at 150 (quotation omitted).
Lott’s probable-cause challenge to the Facebook Messenger warrant focuses on the
issue of nexus—the requirement that there must be a connection between the crime and the
place to be searched. See Souto, 578 N.W.2d at 747- 48. Lott contends that the search-
warrant application lacked a sufficient nexus to justify a search of his Facebook Messenger
data because the only facts alleged in the search warrant included: (1) the statement of
Lott’s mother that Lott used a Facebook account with the name “Indiana Jonesy” and that
she had sent Lott a message via Facebook Messenger to communicate with him; (2) a
Wisconsin deputy’s statement that, “during the course of an investigation he was
conducting, he found Facebook Messenger messages discussing [Z. B.]’s death” and that
the messages included conversations “about Bret Lott and [C.L.] possibly being involved”;
and (3) a boilerplate statement about the affiant’s knowledge that individuals engaged in
criminal activity often use Facebook to communicate about that activity. We are not
persuaded.
The probable-cause standard requires that the issuing judge has a substantial basis
to find that there is a “fair probability” that evidence about Z.B.’s death would be found in
Lott’s Facebook Messenger data. Id. at 747 (quotation omitted). We agree with the district
court’s determination that the affidavit provided a substantial basis for the issuing judge to
make such a finding. The circumstances, as outlined in the affidavit, involve Z.B.’s death
9
from opiate toxicity; the call from Lott’s mother to police the morning Z.B.’s body was
discovered, which revealed that Lott was present when Z.B. overdosed; that room 216 was
registered to a woman named C.L. and Lott; and that a patron identified Lott as having
been at the motel at 6:00 a.m. on the morning of November 2. Thus, the affidavit contained
ample evidence connecting Lott to Z.B. and reason to suspect that Lott may have had some
involvement in her death.
As to the connection to Facebook Messenger, the affidavit details that Lott had not
one but two Facebook accounts and that he used them both. In addition, on the very same
morning that Z.B.’s body was discovered, Lott’s mother sent a message to Lott via
Facebook Messenger telling Lott that she had alerted the police to the possible overdose.
It is a reasonable inference that, if nothing else, Lott’s Facebook Messenger data might
contain a communication from Lott via Facebook Messenger to his mother with
information relevant to his involvement in Z.B.’s death. This alone creates a nexus
between the investigation and Lott’s Facebook Messenger data. The issuing judge thus
had a substantial basis for determining that there was a fair probability that Lott’s Facebook
Messenger data contained evidence related to Z.B.’s death.
We are not persuaded otherwise by the case cited by Lott—State v. Kahn, 555
N.W.2d 15, 18 (Minn. App. 1996). In that case, we held that a search-warrant affiant’s
boilerplate statement —that drug dealers often keep their supply of drugs, records, and
monetary profits at their residence—was insufficient to support a finding of probable cause.
We reasoned in Kahn that there was no link between the defendant’s possession of an ounce
of cocaine in Minneapolis to his residence 80 miles away, reasoning that “[m]ore than mere
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possession . . . is required to demonstrate probable cause that an individual is a dealer.”
555 N.W.2d at 18. Here, there was a direct link between Lott’s suspected involvement in
Z.B.’s death and his Facebook Messenger data. Thus, contrary to Lott’s characterization,
this case does not contain similar facts to Kahn.1
We therefore conclude that, viewed under the totality of the circumstances set forth
in the search-warrant affidavit and the deference accorded an issuing judge’s determination
of probable cause, the district court did not err in denying Lott’s motion to suppress his
Facebook Messenger data based on an alleged lack of nexus.
B. The issuing judge had a substantial basis for finding that the warrants
were sufficiently particular.

We turn next to Lott’s argument that the Facebook Messenger and cellphone
warrants failed to meet the minimum constitutional requirements for particularity. A
warrant is overbroad and lacks particularity if it does not specify the area, things, or persons
for which there is probable cause to search. State v. Fawcett, 884 N.W.2d 380, 386 -87
(Minn. 2016). The particularity requirement thus ensures “that the search will be carefully

1 The state also argues that the evidence is admissible under the inevitable-discovery
doctrine because the state obtained virtually the same evidence from its search of Z.B.’s
Facebook account. The inevitable-discovery doctrine allows for the admission of evidence
“[i]f the state can establish by a preponderance of the evidence that the fruits of a
challenged search ultimately or inevitably would have been discovered by lawful means
. . . even if the search violated the warrant requirement.” State v. Licari, 659 N.W.2d 243,
254 (Minn. 2003) (quotation omitted). The district court determined that the inevitable-
discovery doctrine offered an alternate ground for the admission of Lott’s Facebook
Messenger data. Lott challenges this argument and contends that, because the inevitable-
discovery doctrine was considered sua sponte by the district court, he had no opportunity
to contest its application. But we need not resolve this issue because we conclude that the
district court did not err in finding that the search warrant as to Lott’s Facebook Messenger
data was supported by probable cause.
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tailored to its justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit.” State v. Contreras -Sanchez, 5
N.W.3d 151, 166 (Minn. App. 2024) (quoting Maryland v. Garrison, 480 U.S. 79, 84
(1987)), rev. granted (Minn. May 29, 2024). “When determining whether a clause in a
search warrant is sufficiently particular, the circumstances of the case must be considered,
as well as the nature of the crime under investigation and whether a more precise
description is possible under the circumstances.” Id. at 167 (quotations omitted).
Facebook Messenger
In addressing Lott’s argument about the lack of particularity in the warrant for his
Facebook Messenger data, we note at the outset that the district court suppressed the results
of the search warrant from Lott’s Facebook accounts for all but Facebook Messenger data.
As explained above, the district court ruled that the search warrant lacked probable cause
as to Lott’s Facebook data other than Facebook Messenger data. This ruling greatly
narrowed the scope of the search warrant.
The warrant also contained a temporal requirement, seeking data only between
October 31, 2019, and February 19, 2020. “[A] temporal limitation may make a warrant
sufficiently particular, even if the authorized search is otherwise broad as to subject
matter.” State v. Sardina-Padilla, 7 N.W.3d 585, 600 (Minn. 2024).
In addition, the only Facebook Messenger data admitted into evidence at trial was
from the time period between October 31 and November 2. Thus, even if the temporal
limitation was overly broad because it extended to February, any such error would be
harmless beyond a reasonable doubt because the data admitted at trial was all created over
12
only three days—October 31 through November 2, a narrow window directly related to the
time period involved in the offense. See State v. Horst, 880 N.W.2d 24, 36 (Minn. 2016)
(declining to decide “whether the search warrants were overly broad in their scope because,
even if they were, there would be nothing to suppress, as the information obtained by the
search warrants was never admitted at trial”). Given these facts, we discern no error in the
district court’s determination that the requirements of particularity were satisfied.
We are guided in our conclusion by the supreme court’s very recent opinion in
Sardina-Padilla, which addressed particularity in connection with a search warrant for the
defendant’s Facebook data. 2 7 N.W.3d at 598. In Sardina-Padilla, the supreme court
affirmed that a broad search warrant seeking all of a defendant’s Facebook data for two
accounts satisfied the minimum constitutional requirements for particularity because the
warrant contained a temporal limitation. Id. at 599-603. The temporal limitation in that
case was a period of three months —two months before the offense and one month after.
Id. at 592. The supreme court emphasized that the scope of the warrant “approache[d] the
outer edge of the particularity requirement,” but held that it satisfied the requirement given
the grievous nature of the crimes under investigation—kidnapping and attempted murder —
and that “the circumstances justified the i nvestigators’ request for all content from the
Facebook accounts within the designated timeframe.” Id. at 601-02.

2 The supreme court’s opinion in Sardina-Padilla was released after initial briefing was
completed. We requested and received supplemental briefing from the parties on the
impact of Sardina-Padilla on this appeal.
13
In this case, Lott’s role in Z.B.’s death was arguably less grievous than the attempted
murder in Sardina-Padilla, where the victim was shot and left to die, but the search-warrant
evidence included only Lott’s Facebook Messenger data and, even though three and one -
half months of data was sought in the warrant, the only evidence admitted at trial was from
a narrow three-day window. We thus reject Lott’s argument that the Facebook warrant, as
limited by the district court, lacked particularity.
Cellphone Warrant
As to Lott’s contention that the cellphone warrant lacked particularity, this warrant
also contained a temporal limitation —October 3 to December 2, 2019. And again, the
evidence admitted at trial focused on Lott’s location over the three days relevant to Z.B.’s
death, October 31 through November 2. We thus similarly conclude that the district court
did not err in its denial of Lott’s motion to suppress the evidence obtained as a result of the
search warrant.
II. The district court abused its discretion when sentencing Lott by considering an
out-of-state conviction that was not proven by a preponderance of the evidence.

Finally, Lott argues that the district court abused its discretion by sentencing him to
146 months in prison based on a criminal-history score that included an unsubstantiated
out-of-state conviction. Calculation of a criminal-history score is reviewed for an abuse of
discretion. State v. Strobel, 921 N.W.2d 563, 573 (Minn. App. 2018), aff’d, 932 N.W.2d
303 (Minn. 2019). A sentence based on an incorrect criminal-history score is an illegal
sentence that may be corrected at any time. State v. Maurstad, 7 33 N.W.2d 141, 147
(Minn. 2007) (referencing Minn. R. Crim. P. 27.03, subd. 9). “When a defendant’s
14
sentence is based on an incorrect criminal-history score, his case must be remanded for
resentencing.” State v. Woods, 945 N.W.2d 414, 416-17 (Minn. App. 2020).
An offender’s criminal-history score is the sum of points from eligible prior adult
felonies, prior juvenile adjudications, and prior misdemeanors and gross misdemeanors, as
well as the offender’s custody status at the time of the offense. Minn. Sent’g Guidelines
2.B.1-7 (Supp. 2019). The presumptive range for Lott’s sentence was based on a criminal-
history score of five. This score included one felony point for a Wisconsin identity-theft
conviction. To include the Wisconsin conviction in the calculatio n of Lott’s criminal-
history score, the state was required to prove by a preponderance of the evidence both that
the conviction would be defined as a felony in Minnesota, and that it would result in a
felony-level sentence. State v. Outlaw, 748 N.W.2d 349, 355 (Minn. App. 2008), rev.
denied (Minn. July 15, 2008); Minn. Sent’g Guidelines 2.B.5.b . In assessing the
equivalency of an out-of-state conviction and sentence, the court should primarily consider
the offense definition, but also the underlying conduct of the offense. Hill v. State , 483
N.W.2d 57, 61 (Minn. 1992).
We are persuaded that, as stated in the presentence investigation report (PSI), Lott’s
conviction of “Identity Theft-Financial Gain,” under Wis. Stat. § 943.201(2)(a) (2014),
appears to equate to an identity-theft conviction under Minn. Stat. § 609.527 (2014). The
Wisconsin offense occurs when a person “intentionally uses, attempts to use, or possesses
with intent to use any personal identifying information or personal identification document
of an individual . . . without the[ir] authorization or consent . . . [t]o obtain credit, money,
goods, services, employment, or any other thing of value or benefit.” Wis. Stat.
15
§ 943.201(2)(a). The Minnesota crime of identity theft pursuant to Minn Stat. § 609.527,
subd. 2, occurs when a person “transfers, possesses, or uses an identity that is not the
person’s own, with the intent to commit, aid, or abet any unlawful activity.”
We are also persuaded that the state proved that Lott was convicted of the Wisconsin
identity-theft offense: the PSI states that Lott pleaded guilty to the Wisconsin identity-theft
crime. The state need not provide a certified copy of conviction or adjudication —it must
merely submit “persuasive evidence” to substantiate a record of conviction. State v. Maley,
714 N.W.2d 708, 711-12 (Minn. App. 2006).
But we agree with Lott that the state failed to prove that the Wisconsin conviction
would result in a felony-level sentence in Minnesota. First, the state provided no details
about either the number of victims or the value of loss caused by the act of identify theft.
This information is needed to determine whether the offense would be a gross-
misdemeanor or felony-level offense under Minnesota law. See Minn. Stat. § 609.527,
subd. 3.
Second, the state also failed to prove that Lott’s sentence for the Wisconsin
conviction was for a felony-level offense under Minnesota law. The PSI states only that
Lott’s sentence was “withheld,” that he was “placed on supervised probation for 30
months,” and that probation was later revoked, resulting in Lott’s commitment to the local
jail for ten months. Under Minnesota law, even if a defendant is convicted of a felony-
level offense, the offense will be “deemed” a lower-level offense if the sentence is for a
shorter duration than a felony-level sentence. Minn. Stat. § 609.13, subd. 1 (2022) (stating
that a felony conviction will be “deemed to be for a misdemeanor or a gross misdemeanor
16
if the sentence imposed is within the limits provided by law for a misdemeanor or gross
misdemeanor” or as “a misdemeanor if the imposition of the prison sentence is stayed, the
defendant is placed on probation, and the defendant is thereafter discharged without a
prison sentence”).
Without more information about the nature of the offense and the sentence, the
record is insufficient for us to determine whether the sentence would qualify as a felony-
level sentence in Minnesota. We therefore reverse and remand for resentencing. But
because Lott did not object to the district court’s reliance on the Wisconsin conviction in
the calculation of his criminal-history score, the state should be permitted on remand “to
further develop the sentencing record so that the district court can appropriately make its
determination” whether the Wisconsin conviction would qualify as a felony conviction
under Minnesota law. Outlaw, 748 N.W.2d at 356.
Affirmed in part, reversed in part, and remanded.

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LARSON, Judge (concurring specially)
I concur with the majority opinion in Parts I.B and II. I write separately because I
respectfully disagree with the majority’s decision that the Facebook warrant was supported
by probable cause. But because I would conclude that this constitutional error was
harmless beyond a reasonable doubt, I concur in the result.
The United States and Minnesota Constitutions provide that no warrant shall issue
without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
The probable-cause requirement “seek[s] to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime.” Brinegar v. United
States, 338 U.S. 160, 176 (1949). When, as here, an appellant challenges the district court’s
decision that a search-warrant application was supported by probable cause, “our review is
limited to the information presented in the application, and the reasonable inferences that
can be drawn from that information.” State v. Sardina-Padilla, 7 N.W.3d 585, 596 (Minn.
2024). Based on the application, we must evaluate whether the district court had a
“substantial basis” to determine that probable cause existed. State v. Yarbrough, 841
N.W.2d 619, 622 (Minn. 2014). We afford the district court great deference, “recognizing
that doubtful or marginal cases should be largely determined by the preference to be
accorded to warrants.” State v. Fawcett, 884 N.W.2d 380, 385 (Minn. 2016) (quotations
omitted).
“A warrant is supported by probable cause if, on the totality of the circumstances,
there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” State v. Holland, 865 N.W.2d 666, 673 (Minn. 2015) (quotations omitted). In other

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words, there must be a sufficient “nexus” between the evidence sought and the place to be
searched. Yarbrough, 841 N.W.2d at 622. This nexus “may be inferred from the totality
of the circumstances.” Id. Under our substantial-basis standard of review, we consider
“the type of crime, the nature of the items sought, the extent of the suspect’s opportunity
for concealment, and the normal inferences as to where the suspect would keep the items.”
State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984).
Here, the Facebook-warrant application made the following averments connecting
Facebook and Z.B.’s death:
• “A Roseville Police detective spoke with patrons of the
Motel 6 while officers and detectives were on scene
processing the crime scene. The detective had a photo of
Lott, retrieved from the internet website—Facebook. One
of the patrons confirmed that he recognized the male in the
photo (Lott) . . . .”

• “[Lott’s mother] told your affiant that her son uses the
Facebook name ‘Indiana Jonesy’ and that she sent him a
message via Facebook Messenger notifying him that she
had contacted police.”

• “Your affiant found [two] Facebook user profiles . . . The
two Facebook user profiles share some photos in common
with one another. The photos match known photos of
[Lott].”

• “In January 2020, your affiant spoke with an investigator
from the Chippewa County Sheriff’s Office in Chippewa
Falls, Wisconsin. The investigator shared that during the
course of an investigation he was conducting, he found
Facebook Messenger messages discussing [Z.B.’s] death.
The messages include conversation about [Lott] . . .
possibly being involved.”

• “Your affiant also knows that often times there is
communication between individuals related to criminal

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activity around the time they are involved in that activity in
the form of . . . social media/communication applications
including Facebook and Facebook Messenger. Your
affiant believes that the content located on the Facebook
accounts belonging to [Lott] will assist in furthering the
investigation of the death of [Z.B.].”

Among these, the majority relies on a single statement to conclude that the
Facebook-warrant application established the requisite nexus between Z.B.’s death and
Lott’s Facebook accounts; namely, that Lott’s mother “sent [Lott] a message via Facebook
Messenger notifying him that she had contacted police.” The majority concludes that it is
a reasonable inference from this statement that Lott’s Facebook accounts might contain a
communication from Lott responding to his mother’s message. According to the majority,
that possible response from Lott, alone, established a sufficient nexus between Z.B.’s death
and Lott’s Facebook accounts. I respectfully disagree that a third party’s unilateral
conduct—absent some indication that the suspect themselves used the social-media
account in connection with the crime—creates an inference that is reasonable.
State and federal courts addressing motions to suppress social-media data have
consistently denied motions to suppress in cases in which the warrant application included
some evidence tying the defendant’s conduct to the social-media account. Sometimes that
was through the defendant’s publicly available posts. See, e.g., United States v. Arnold,
No. 15-20652, 2017 WL 4036312 (E.D. Mich. Sept. 13, 2017) (denying motion to suppress
Facebook evidence when affidavit cited information from defendants’ publicly available
profile including post accusing another individual of being a “federal informant”). Other
times, the warrant application included statements from witnesses that the defendant used

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Facebook in connection with a crime. See, e.g., United States v. DeLeon, No. CR 21 -8-
DLB-EBA, 2021 WL 4338939, at *8 (E.D. Ky. Sept. 23, 2021) (“the information requested
was … based on the Facebook message in which Deleon requested [criminal] material from
one of the victims”). And, in a case like Sardina-Padilla, nexus has been shown from the
suspect making explicit statements indicating information relevant to a crime may be
present on a social-media account. See 7 N.W.3d at 598 (emphasizing that defendant made
statements during jail phone call asking someone to delete his Facebook account).
Notably absent from state and federal caselaw, however, are cases stating that a
nexus is established without some action on the part of the defendant. See United States v.
Whitt, No. 1:17CR060, 2018 WL 447586, at *4 (S.D. Ohio Jan. 17, 2018) (warning that
the nexus requirement would become superfluous if all that is required is (1) being a
suspect; (2) having a Facebook account; and (3) expert statements about the information
suspects are likely to have stored on a Facebook account). And the absence of s uch cases
is unsurprising; if all that is required to create a nexus between a crime and a social-media
account is a third party initiating a communication, we create a system in which a third
party—acting intentionally or unintentionally—could unilaterally manufacture probable
cause when probable cause would not otherwise exist. Cf. United States v. Dennis , 115
F.3d 524, 529 (7th Cir. 1997) (discussing similar concern in the context of anticipatory
warrants).
For this reason, i n my view, Lott’s mother’s conduct alone—sending a Facebook
message to Lott about Z.B.’s death—cannot by itself create the reasonable inference that
Lott discussed Z.B.’s death on Facebook. And without at least some affirmative indication

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that Lott himself used Facebook in connection with Z.B.’s death, Lott’s mother’s use of
Facebook messenger is not sufficient to establish probable cause to search Lott’s Facebook
accounts.1
Reviewing the Facebook-warrant application in its totality, the other averments do
not cure this defect. An individual merely having Facebook accounts and being suspected
of a crime is not sufficient to form the nexus required to establish probable cause. See
Whitt, 2018 WL 447586, at *4; cf. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996)
(concluding there was insufficient nexus when warrant averred that “(1) respondent was
arrested for possession of one ounce of cocaine in Minneapolis; (2) the affiant, an expert
in the field of drug enforcement, stated that he knew ‘through training and experience that
an ounce of cocaine is considered more [than] that for personal use and indicates that the
person possessing that quantity normally sells the drug in smaller quantities’; and (3) that
respondent resided at the residence to be searched”).
Moreover, the statement regarding the Wisconsin investigator does not establish any
tie between Lott’s Facebook accounts and Z.B.’s death. Third parties using Facebook
messenger to “discuss[]” a crime and talk “about [Lott] possibly being involved” does not
reasonably create a nexus between Z.B.’s death and Lott’s Facebook accounts. At most,
the Wisconsin investigator’s statement creates a nexus between the third parties’ Facebook
accounts and Z.B.’s death. But a nexus between the crime and the third parties’ Facebook
accounts is not the same as a nexus between the crime and Lott’s Facebook accounts.

1 Lott’s mother’s statement may have created probable cause to obtain a search warrant for
Lott’s mother’s Facebook account to determine whether Lott responded to the message.

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For these reasons, I would conclude that the Facebook-warrant application was not
supported by probable cause because it failed to establish a nexus between Lott’s conduct
on Facebook and Z.B.’s death. I would accordingly decide that the district court erred
when it denied the motion to suppress.
Nonetheless, I concur in the majority’s decision to affirm Lott’s conviction because
the district court’s failure to suppress the illegally obtained evidence was harmless beyond
a reasonable doubt. See State v. Caulfield, 722 N.W.2d 304, 314 (Minn. 2006) (“A
constitutional error does not mandate reversal and a new trial if we determine that the error
was harmless beyond a reasonable doubt.”). Here, after obtaining the warrant for Lott’s
Facebook accounts, police also obtained a warrant to search Z.B.’s Facebook account. That
unchallenged warrant yielded largely the same evidence— Facebook messages that proved
Lott sold Z.B. heroin shortly before she died. Thus, even if the district court had granted
the motion to suppress, the same information would still have been introduced at trial by
way of Z.B.’s Facebook account. I would, therefore, conclude beyond a reasonable doubt
that the admission of the messages from Lott’s Facebook accounts did not affect the jury’s
verdict.