                           This opinion will be unpublished and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
                                      A15-1777

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                   Wyatt Morris Howard,
                                        Appellant.

                                Filed September 19, 2016
                                        Affirmed
                                     Bratvold, Judge

                              Hennepin County District Court
                                 File No. 27-CR-14-6946

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Hooten, Presiding Judge; Peterson, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

BRATVOLD, Judge

         Appellant Wyatt Morris Howard challenges his conviction of conspiracy to commit

first-degree aggravated robbery, asserting that the district court erred in denying his motion
to suppress text-message evidence recovered from his cellphone pursuant to a search

warrant. In his pro se brief, Howard argues that he was denied effective assistance of

counsel. Because the district court judge had a substantial basis on which to find probable

cause supporting issuance of the search warrant and because Howard is not entitled to a

new trial on the grounds of ineffective assistance of counsel, we affirm.

                                          FACTS

       Wyatt Morris Howard was arrested after R.P., an employee of the Richfield Best

Buy Mobile store, grew suspicious of Howard and two companions and called the police.

On March 11, 2014, R.P. sat in the store parking lot before beginning his shift and saw a

red Nissan enter the parking lot, drive around, and exit the lot. None of the stores in the

strip mall in which the Best Buy Mobile store was located had opened for the day. Around

2:30 p.m. on the same day, R.P. again saw the red Nissan. This time, it pulled into a parking

spot in front of the store. At the time, one customer was inside the store. As soon as the

customer left the store, three men got out of the red Nissan and entered the store. R.P.

noticed that one of the three men “was walking around the outer perimeter” of the store

and “walking into areas where mainly customers wouldn’t go,” “almost like they were

checking the place out.” The three men left the store after approximately 15 minutes

without purchasing anything.

       The next day, R.P. described his observations from the previous day to his boss.

Then, R.P. again saw three men in the red Nissan pull into the Best Buy Mobile parking

lot. He thought this seemed “fishy” and watched through a peephole in one of the store’s

fire doors to see if they would park. The three men parked in front of the store’s fire door,


                                             2
which was typically used only as an emergency exit and was out of sight of the front door.

According to R.P., they “sat there for a while;” got out and then returned to the car at least

once. R.P. thought that they could be the same three men who had entered the store the

day before. R.P. called the Richfield police to report the men’s behavior and his suspicion

that they were “casing” the store.1

       Responding to R.P.’s call, the Richfield police arrived and determined that a robbery

may be imminent, and approached the red Nissan. Officer Peterson first spoke with C.H.,

a passenger. Peterson reported that C.H. appeared nervous, and C.H. told Peterson that the

three men were in the parking lot “waiting for their rental car.” Because Peterson had

learned that the red Nissan was a rental car before he spoke to the men, Peterson found

C.H.’s answer to be suspicious.

       Peterson then spoke to Howard who was sitting in the driver’s seat. Howard

acknowledged that he had rented the car. After mentioning that police had received a

suspicious-activity call and that this Best Buy Mobile store had been previously robbed,

Peterson asked Howard for permission to search the car. Howard consented. The officers

found several duffle bags, rubberized gloves, a deadbolt cutter, a hammer, duct tape, and

ski masks. Upon recovering these items from the car, the officers arrested Howard, C.H.,

and the third man, F.R. Once they were detained, Peterson returned to the car and found a




1
  Officer Rogge testified during the trial that “casing” refers to a person’s scouting of a
potential burglary location, to “get the layout of the store, see where cameras are, see where
employees are, see how many people are actually in the store at that time, just kind of get
the physical layout of it.”

                                              3
CO2 BB gun, which closely resembled a handgun, under the driver’s seat. When Howard

was arrested, he was wearing a ski mask, folded up to look like a winter hat.

       Richfield police towed the car to a secured garage, and Investigator Gifford applied

for and received a search warrant to conduct a second search of the car. The search warrant

application expressly sought the following items: handgun, real or replica; bolt cutter; ski

masks; knit caps; hammer; gloves; duffle bag; duct tape; flashlights; pry bars; cellphones,

“including all electronic data stored internally or externally;” and “[a]ny other items which

may show constructive possession, including documentation, mailings, rental agreements,

hotel receipts, credit cards and credit card receipts or any additional documents that may

be discovered during the search.”

       Upon executing the warrant, Gifford found two cellphones, one of which was

unlocked and appeared to belong to Howard. From Howard’s cellphone, the investigators

recovered a text-message conversation between Howard and a contact named “Cali” that

Gifford summarized as “something to the extent that they were going to be taking some i-

Phones from a Best Buy.”

       Shortly after his arrest, the state charged Howard with conspiracy to commit first-

degree aggravated robbery, see Minn. Stat. § 609.245, subd. 1 (2014). In June 2015,

Howard moved to suppress “all evidence obtained from the warrantless search of the

electronic cellphone data” recovered from the search of the rental car. The district court

denied the suppression motion before trial, and trial was held on July 6, 7 and 8, 2015. The

jury convicted Howard, and he was later sentenced to 34 months. This appeal follows.




                                             4
                                      DECISION

I.     Forfeiture of the Fourth-Amendment Issue

       As a preliminary matter, the state asserts that Howard raises a new issue on appeal

that he forfeited by failing to raise it before the district court. Generally, this court “will

not decide issues [that] were not raised before the district court, including constitutional

questions of criminal procedure.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). “At

the court’s discretion, it may deviate from this rule when the interests of justice require

consideration of such issues and doing so would not unfairly surprise a party to the appeal.”

Id.

       On appeal, Howard contends that the search warrant was invalid because the

supporting affidavit did not establish probable cause to believe that the cellphones would

constitute or contain evidence of a crime. This issue is absent from Howard’s written

submission to the district court, which sought suppression based the allegation that the

search warrant did not authorize the police to search the contents of the cellphones. At the

omnibus hearing, Howard argued something similar to the issue he raises on appeal:

              [I]f somehow the Court finds persuasive this argument that [the
              language of the search warrant] allowed the warrant to act as a
              double warrant, if you will, where they could search the vehicle
              and the cellphone, that opens up a whole other world of
              whether the judge was even allowed to issue that kind of
              warrant and, moreover, if the facts to support probable cause
              were sufficient to allow that search of the cellphones.

       We conclude this argument is sufficient to preserve the issue for appeal. Because

his trial counsel raised the alternative issue to the district court, Howard is not precluded

from asserting it on appeal.


                                              5
II.    Probable Cause for the Search Warrant

       Turning to the merits of Howard’s argument, he asserts that the affidavit supporting

the search-warrant application did not establish probable cause to seize or search the

cellphones because there was no nexus shown between either the cellphone or its contents

and any criminal behavior. The state responds that the district court properly denied the

motion and, even if the denial was improper, no prejudice to Howard resulted and no relief

is warranted.

       “When reviewing a district court’s decision to issue a search warrant, [a reviewing

court’s] only consideration is whether the judge issuing the warrant had a substantial basis

for concluding that probable cause existed.” State v. Jenkins, 782 N.W.2d 211, 223 (Minn.

2010) (quotation omitted). This court “review[s] the district court’s factual findings for

clear error and the district court’s legal determinations de novo.” Id. “In doing so, we are

to consider the totality of the circumstances and ‘must be careful not to review each

component of the affidavit in isolation.’” Id. (quoting State v. Wiley, 366 N.W.2d 265, 268

(Minn. 1985)). Unlike the probable-cause determination made in connection with a

warrantless search—which we review de novo—we afford “great deference” to a district

court’s probable-cause determination made in connection with the issuance of a search

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

       The standard for granting a search warrant is set forth in the Fourth Amendment to

the United States Constitution, which 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


                                             6
affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV (emphasis added); see also Minn. Const. art. I, § 10.

       The particularity requirement in the Fourth Amendment prevents a “general,

exploratory rummaging in a person’s belongings,” Coolidge v. New Hampshire, 403 U.S.

443, 467, 91 S. Ct. 2022, 2038-39 (1971), and “prevents the seizure of one thing under a

warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76

(1927). “A particular warrant also assures the individual whose property is searched or

seized of the lawful authority of the executing officer, his need to search, and the limits of

his power to search.” Groh v. Ramirez, 540 U.S. 551, 561, 124 S. Ct. 1284, 1292 (2004)

(quotation omitted). “[A] search conducted pursuant to a warrant that fails to conform to

the particularity requirement . . . is unconstitutional.” Massachusetts v. Sheppard, 468 U.S.

981, 988 n.5, 104 S. Ct. 3424, 3427 n.5 (1984).

       When presented with a search warrant application, the issuing judge, must “make a

practical, common-sense decision whether, 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.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,

2332 (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.”

Jenkins, 782 N.W.2d at 223 (citing State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) and

2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.7(d)

(4th ed. 2004)).




                                              7
       Applying these principles here, Howard’s argument requires us to examine whether

the issuing judge had a “substantial basis” on which to conclude that probable cause

existed. Rochefort, 631 N.W.2d at 804. The search warrant here sought “cell phones,

including all electronic data stored internally or externally” on the ground that they were

“in the possession of a person with intent to use such property as a means of committing a

crime.” Investigator Gifford’s affidavit summarized his investigatory experience in

Richfield; the conditions leading to the suspicious-activity call, including a previous

robbery at the Richfield Best Buy Mobile store and a history of robberies at similar stores

in the area; the three men’s behavior leading to the employee’s suspicion; the items

observed during the consensual search of the car, including the bolt cutter, hammer, gloves,

duffle bags, duct tape, and the CO2 handgun; the positive identification of the men by the

employee as the three who appeared to have been casing the store the day before; and

Gifford’s belief that “due to the specific combinations of items, time of day and lack of

reasonable explanation for the items that [Howard, C.H. and F.R.] intended to commit a

robbery.”

       Howard argues that the affidavit makes “no mention of any fact that would support

an honest suspicion that any cellphone found in the car would itself be evidence of a crime

subject to seizure.” In reviewing the issuing judge’s decision, however, “we ‘must be

careful not to review each component of the affidavit in isolation. Even if each component

is judged unsubstantial, the components viewed together may reveal an internal coherence

that gives weight to the whole.’” State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999)

(quoting State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985)). Moreover, reviewing courts


                                             8
may consider any reasonable inferences that arise from the facts stated in the supporting

affidavit in assessing the existence of probable cause. See, e.g., Novak v. State, 349 N.W.2d

830, 833 (Minn. 1984) (concluding that, “considering all the information contained in the

affidavit and reasonable inferences therefrom,” the issuing magistrate was justified in

finding probable cause to search an established marijuana dealer’s home for marijuana).

Applying these principles here, the facts of the supporting affidavit strongly suggest that

the three men were involved in planning a robbery of a cellphone retailer. Therefore, a

reasonable inference can be drawn that the men had perhaps already committed a robbery

of a cellphone retailer and that any resulting stolen cellphones could have been concealed

in the car.

       Howard next contends that the affidavit contained no mention that cellphones were

seen in the car nor alleged any basis on which to suspect that the cellphones would contain

evidence of a crime. He urges, “[u]nless there is at least something in the warrant

application from which such an inference could be drawn in this case, such reasoning must

be deemed insufficient to establish probable cause.”

       Howard correctly observes that the affidavit mentions neither the use of cellphones

nor visibility of cellphones inside the car, but he overlooks the reasonable inferences that

can be drawn. The affidavit describes the officers’ perceptions indicating an imminent

robbery. The search-warrant application states that the affiant sought the “cellphones,

including electronic data stored internally or externally,” on the ground that they were “in

the possession of a person with intent to use such property as a means of committing a

crime.” See Harris, 589 N.W.2d at 788 (noting that the factors the issuing judge may


                                             9
consider include the type of crime and the nature of the items sought). From the affidavit

and the search-warrant application, a reasonable inference may be drawn that the three men

were using their personal cellphones to communicate among themselves and with others

regarding the details of the crime.

       Consistent with this reasoning, the Minnesota Supreme Court upheld a search

warrant based on an inference that two caregivers of a child will exchange written

communications, thus establishing probable cause that correspondence is present, despite

the affidavit’s failure to mention correspondence. State v. McBride, 666 N.W.2d 351, 362

(Minn. 2003) (upholding denial of appellant’s motion to suppress notebook seized pursuant

to a search warrant explicitly seeking books and first aid manuals). Given this court’s “great

deference” to the issuing judge, Rochefort, 631 N.W.2d at 804, we conclude that a

substantial basis existed on which to find probable cause to support the issuance of a

warrant for the cellphones and their contents. Accordingly, the district court properly

denied Howard’s suppression motion.

III.   Ineffective-Assistance-of-Counsel Claim

       Howard argues in his pro se supplemental brief that he was deprived of effective

assistance of counsel. To establish ineffective assistance of counsel, Howard must show

both that: (1) his trial attorney’s performance fell below an objective standard of

reasonableness; and (2) a reasonable probability exists that, but for his attorney’s errors,

the outcome of the trial would have been different. Williams v. State, 764 N.W.2d 21, 29–

30 (Minn. 2009) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,

2068 (1984)). Minnesota courts define the objective standard as “representation by an


                                             10
attorney exercising the customary skills and diligence that a reasonably competent attorney

would perform under similar circumstances.” State v. Gassler, 505 N.W.2d 62, 70 (Minn.

1993) (quotation omitted). In considering the second prong of the Strickland test, “[t]he

reviewing court considers the totality of the evidence before the judge or jury.” Anderson

v. State, 830 N.W.2d 1, 10 (Minn. 2013).

       Howard first contends that his attorney was “ill-prepared and completely

unknowledgeable about [his] case,” yet the record does not support his contention.

Howard’s trial counsel made a suppression motion before trial and formulated a detailed

theory of the case, which he presented in opening statements, throughout trial, and in

closing arguments. Next, Howard claims that he was not made aware of a favorable plea-

deal offer, but the pretrial hearing transcript reflects that the prosecutor reiterated the state’s

plea offer of a 21-month commitment to run concurrent with Howard’s preexisting federal

sentence. Additionally, contrary to Howard’s assertion that he was not aware that co-

defendant Christopher Hall would testify at trial, the parties discussed impeaching Hall

with a prior conviction at the pretrial proceeding, at which Howard was present. The record

therefore belies these assertions of ineffective assistance of counsel.

       Howard additionally alleges that his counsel’s request for Howard’s input during

cross-examination and his counsel’s failure to meet with him over breaks during trial

constituted ineffective assistance. These decisions by counsel, however, are matters of trial

strategy, Reed v. State, 793 N.W.2d 725, 736 (Minn. 2010), which this court is generally

reluctant to review for ineffective assistance because of the public policy concern of

“allowing counsel to have the flexibility to represent a client to the fullest extent possible.”


                                                11
Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (quotation omitted). To preserve an

attorney’s flexibility to represent a client to the fullest extent possible, we decline to review

these instances of alleged ineffective assistance. Id.

       Finally, Howard asserts that his attorney’s failure to provide him with discovery

materials until three days before trial amounted to ineffective assistance of counsel.

Because Howard has not stated how he was prejudiced by his attorney’s delay in providing

him with discovery materials nor how the outcome would have been different had his

attorney given the materials to him earlier, he has not established the second prong of the

Strickland test. See Williams, 764 N.W.2d at 30 (concluding that appellant could not

establish the prejudice prong). To the contrary, that Howard’s attorney asked for his input

before and during trial belies Howard’s implicit argument that he did not have the

opportunity to contribute to the defense theory of the case. Without specifically alleging

prejudice, Howard’s assertions are merely speculation, which is insufficient to establish

prejudice. Rhodes, 657 N.W.2d at 844.

       Following Strickland’s admonition that “the ultimate focus of inquiry must be on

the fundamental fairness of the proceeding whose result is being challenged,” Howard was

not deprived of his constitutional right to effective representation. Strickland, 466 U.S. at

696, 104 S. Ct. at 2052; see Rhodes, 657 N.W.2d at 845 (applying Strickland to conclude

that appellant was not deprived of effective assistance of counsel). Because the record does

not support many of Howard’s claims, we decline to review his counsel’s trial tactics. Also

because Howard fails to establish how he was prejudiced by the remaining instances of




                                               12
alleged ineffective assistance, we need not address the performance prong. Rhodes, 657

N.W.2d at 842. We therefore conclude that Howard is not entitled to relief on this ground.

      Affirmed.




                                           13
