                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0642

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Robert James Fallin,
                                       Appellant.

                                    Filed April 4, 2016
                                         Affirmed
                                     Johnson, Judge

                              Olmsted County District Court
                                File No. 55-CR-14-1683

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         An Olmsted County jury found Robert James Fallin guilty of three drug-related

offenses based on evidence that he possessed and sold methamphetamine. He argues that
the district court erred by denying his motion to suppress incriminating evidence found in

a search of his cellular telephone. We affirm.

                                          FACTS

       In March 2014, police officers searched a home in Rochester pursuant to a warrant.

The officers found methamphetamine, marijuana, drug paraphernalia, and drug-packaging

materials in a basement bedroom of the home, which was locked with a deadbolt. Officers

found Fallin in the bedroom with A.K., a known resident of the home. Officers seized,

among other things, a cell phone that was found in Fallin’s pocket, as well as several

additional cell phones that were found in a car that Fallin had been driving, which was

parked outside the home. In the search of Fallin’s car, officers also found a digital scale,

plastic baggies, syringes, glass pipes, and a torch head.

       After the search of the home, a police investigator sought and obtained a warrant to

search the data in Fallin’s cell phones. The investigator’s supporting affidavit mentioned

Fallin’s presence in a locked bedroom with controlled substances and drug-related items.

The affidavit also stated that the investigator recently had performed a “controlled buy” of

drugs at that home using cell-phone communications and that, in general, cell phones

commonly are used to arrange drug deals. A district court judge approved the application

and issued the warrant. A search of the data contained in Fallin’s cell phones produced,

among other things, text messages tending to prove that Fallin had engaged in the sale of

methamphetamine.

       The state charged Fallin with two offenses: (1) first-degree controlled substance

crime, in violation of Minn. Stat. § 152.021, subd. 1(1) (2012), based on an allegation that


                                              2
he sold methamphetamine and (2) first-degree controlled substance crime, in violation of

Minn. Stat. § 152.021, subd. 2(a)(1) (2012), based on an allegation that he possessed

methamphetamine. The state later amended the complaint to add a third charge: first-

degree controlled substance crime, in violation of Minn. Stat. §§ 152.021, subd. 1(1),

609.05, subd. 1 (2012), based on an allegation that Fallin aided and abetted the sale of

methamphetamine.

       In August 2014, Fallin moved to suppress the evidence obtained in the search of the

data in his cell phones. He first argued that the application for the search warrant was not

supported by probable cause. He also argued that the application for the search warrant

was mistaken in its statement of the specific location inside the bedroom where three bags

of methamphetamine were found. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.

Ct. 2674, 2676 (1978). With respect to the second part of his motion, the investigator who

prepared the warrant application testified that he had misremembered the arrangement of

furniture in the bedroom and, thus, misstated the location of the bags of methamphetamine.

The state argued to the district court that the mistake in the warrant application was not

reckless and not material and that the affidavit established probable cause with or without

the false statement. The district court granted the second part of Fallin’s motion by striking

the false statement from the supporting affidavit but denied the first part of the motion on

the ground that, even after the false statement was stricken, the warrant application

contained probable cause to believe that Fallin had engaged in criminal activity.

       The case was tried to a jury on three days in September and October 2014. Fallin

did not testify but called one witness, who testified that she exchanged text messages with


                                              3
Fallin the night before his arrest to arrange for the exchange of a small amount of marijuana

but not methamphetamine. In closing arguments, Fallin’s attorney urged the jury to find

Fallin not guilty because he did not have knowledge of the methamphetamine found in

A.K.’s bedroom and that the text messages showed that he merely shared a small amount

of marijuana with a friend. The jury found Fallin guilty on all three counts. In January

2015, the district court imposed a sentence of 94 months of imprisonment on count 3.

Fallin appeals.

                                     DECISION

                                  I. Motion to Suppress

       Fallin argues that the district court erred by denying his motion to suppress

evidence. Specifically, he argues that the search-warrant application did not establish

probable cause for a search of the data in his cell phones because there was an insufficient

nexus between his cell phone and the methamphetamine that was found in A.K.’s bedroom.

       The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures” and states that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV; see also Minn. Const. art. I,

§ 10. “Probable cause exists if the judge issuing a warrant determines that ‘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.




                                             4
2317, 2332 (1983)).      Whether probable cause exists is a “practical, common-sense

decision.” Id. Furthermore:

                       Probable cause not only requires that the evidence
              sought likely exists, but also that there is a fair probability that
              the evidence will be found at the specific site to be searched.
              A sufficient “nexus” must be established between the evidence
              sought and the place to be searched. However, direct
              observation of evidence of a crime at the place to be searched
              is not required. A nexus may be inferred from the totality of
              the circumstances. Among the circumstances the issuing judge
              . . . considers in determining whether there is probable cause to
              believe that the evidence sought will be found at a particular
              place are the type of crime, the nature of the items sought, the
              extent of the defendant’s opportunity for concealment, and the
              normal inferences as to where the defendant would usually
              keep the items.

Id. at 622-23 (citations omitted). “[W]hen 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” and should consider only

“whether the issuing judge had a substantial basis for concluding that probable cause

existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).

       In this case, the district court found that there was a nexus between Fallin’s cell

phones and the incriminating evidence found in the bedroom. The district court noted that

Fallin was found inside the bedroom with the incriminating evidence while the door was

locked with a deadbolt. On appeal, Fallin contends that police officers had no reason to

draw a connection between his cell phones and the incriminating evidence, other than his

presence in the room. Contrary to Fallin’s contention, his presence establishes “a fair

probability” that evidence of criminal activity will be found in a search of the data in his



                                               5
cell phone, given “the totality of the circumstances.” See Yarbrough, 841 N.W.2d at 622;

see also Maryland v. Pringle, 540 U.S. 366, 373, 124 S. Ct. 795, 801 (2003) (holding that

large amount of drugs in vehicle provided probable cause to believe any of three men in

vehicle had committed crime). Fallin’s presence in the bedroom with a significant quantity

of incriminating evidence, as well as information that controlled substances recently had

been purchased from the home after cell phones were used to facilitate the purchase,

provided the issuing district court judge with “a substantial basis for concluding that

probable cause existed,” and we are required to give that determination “great deference.”

See Rochefort, 631 N.W.2d at 804. Thus, the district court did not err by denying Fallin’s

motion to suppress evidence.

                                   II. Pro Se Arguments

         Fallin filed a 14-page pro se supplemental brief, which raises numerous issues. We

interpret the brief to assert six discernable, discrete arguments for reversal.

         First, Fallin argues that his conviction should be reversed because he was charged

by complaint, rather than being indicted by a grand jury. He relies on a federal rule of

criminal procedure, which states that crimes punishable by imprisonment of more than one

year “must be prosecuted by an indictment.” Fed. R. Crim. P. 7(a)(1)(B). But the Federal

Rules of Criminal Procedure apply only in the federal courts. See Fed. R. Crim. P. 1(a).

Fallin contends that the Minnesota Rules of Criminal Procedure are unconstitutional to the

extent that they allow for the prosecution of a felony by complaint. See Minn. R. Crim. P.

17.01.    He cites no legal authority for his constitutional argument.            Fallin has not

established legal error.


                                              6
       Second, Fallin argues that his conviction should be reversed on the ground that he

received ineffective assistance of counsel at trial because his attorney did not call additional

witnesses and did little cross-examination of the state’s witnesses. To prevail on this claim,

Fallin must establish that (1) “his counsel’s representation ‘fell below an objective standard

of reasonableness’” and (2) “‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”’ Gates v.

State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068 (1984)). Fallin has not provided enough information to

satisfy his burden.

       Third, Fallin argues that the district court erred by denying his pretrial motion to

dismiss the charges for lack of probable cause. But Fallin’s presence in a locked room with

a large amount of drugs and drug-dealing paraphernalia, as well as the evidence found in

his cell phones, was sufficient to establish probable cause. See Pringle, 540 U.S. at 373,

124 S. Ct. at 801.

       Fourth, Fallin argues that his conviction should be reversed on the ground that the

prosecutor committed misconduct by offering into evidence an audio-recording of a

telephone call between Fallin and his sister while Fallin was in jail. The audio-recording

was played for the jury, and a transcript was published to the jury, without objection. A

prosecutor does not commit misconduct by introducing evidence that is admissible. State

v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). Because Fallin has not established that the

evidence is inadmissible, he cannot establish that there was an error, let alone a plain error

affecting his substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).


                                               7
       Fifth, Fallin argues that his conviction should be reversed on the ground that he was

improperly arrested, that his cell phone was improperly seized, that statements were taken

and used in violation of Miranda, that his car was improperly searched, and that the state

failed to disclose exculpatory evidence. All of these arguments should have been presented

to the district court in a pre-trial motion, but none was. See State v. Pederson-Maxwell,

619 N.W.2d 777, 780 (Minn. App. 2000) (“In order for constitutional challenges to the

admission of evidence to be timely, objections to such evidence must be raised at the

omnibus hearing.”) Accordingly, the arguments are not reviewable on direct appeal.

       Sixth and finally, Fallin argues that his conviction should be reversed on the ground

that the evidence is insufficient to support the jury’s verdict. We conclude that “the facts

in the record and the legitimate inferences drawn from them would permit the jury to

reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense

of which he was convicted.” See State v. Salyers, 858 N.W.2d 156, 160 (Minn. 2015)

(quotations omitted).

       Thus, Fallin is not entitled to relief on any of the issues raised in his pro se

supplemental brief.

       Affirmed.




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