State v. Saleem

1

State of Minnesota, Respondent, v. Zaki Malik Saleem, Appellant.

No. A22-1056

Court of Appeals of Minnesota

July 31, 2023

This opinion is nonprecedential except as provided by Minn.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

Hennepin County District Court File No. 27-CR-20-13643

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

Mary F. Moriarty, Hennepin County Attorney, Sarah J. Vokes Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Cochran, Judge; and Wheelock, Judge.

WHEELOCK, Judge

In this appeal from the final judgments of conviction for unlawful possession of a firearm, first-degree aggravated robbery, kidnapping, and first-degree burglary, appellant argues that the district court (1) erred by denying his motion to suppress evidence seized pursuant to a search warrant for historical cell-phone information because the warrant failed to establish probable cause, (2) abused its discretion by denying his requests for substitute counsel, and (3) abused its discretion by denying his request to relinquish self-representation during trial. In a pro se supplemental brief, appellant raises additional evidentiary issues, challenges the sufficiency of the evidence, and argues that the district court erred when it accepted his waiver of counsel. We affirm.

FACTS

In June 2020, respondent State of Minnesota charged appellant Zaki Malik Saleem with one count of illegal possession of a firearm, two counts of first-degree aggravated robbery, two counts of kidnapping, and two counts of second-degree assault. The state amended its complaint to include a count of first-degree burglary, for a total of eight counts. The charges stemmed from the armed robbery of a credit union in Minneapolis on February 7, 2020.

In March 2022, the district court held a jury trial. The state's witnesses included four employees of the credit union, three law-enforcement officers, two forensic scientists, an FBI special agent, and Saleem's niece, D.N. The state presented evidence establishing the following facts.

Two credit-union employees testified that they had closed the credit union on the night of the robbery and were leaving from the rear employee entrance when a man with a gun pushed them back into the building. He instructed them to disarm the building's alarm system, then forced them to crawl to the vault.

The employees crawled through the credit union to the vault room, opened the vault, and loaded bills into a backpack that the man gave to them. The man then forced them to crawl to the bathroom and told them to wait there for 30 minutes. Throughout the robbery, the man continually threatened the employees and twice discharged his weapon near the employees' heads as they were crawling on the floor. A third employee of the credit union testified that the total amount of stolen cash was $215,600 and that Saleem was a member of the credit union at the time of the robbery.

A lieutenant with the Minneapolis Police Department collected and reviewed the credit union's surveillance-camera footage. He testified that the footage depicted a black Chevy Tahoe entering the rear parking lot of the credit union at approximately 6:01 p.m. on the night of the robbery. The vehicle remained in the parking lot with its headlights off for approximately seven minutes before departing, which raised the lieutenant's suspicions. Law enforcement ran the vehicle's license plate and identified Saleem as the owner of the vehicle.

At 6:16 p.m., less than ten minutes after the suspicious vehicle departed, the surveillance cameras captured an individual who entered the alley behind the credit union and jumped over the fence into the rear parking lot. The individual hid behind a dumpster until about 6:31 p.m., at which point he moved to the rear entrance of the credit union and then forced the employees back inside the building at gunpoint. At approximately 6:40 p.m., the surveillance cameras captured the individual leaving the credit union from the rear entrance, jumping over the fence, and continuing down the alley on foot.

The state also introduced evidence of Saleem's prior convictions through the testimony of the lieutenant who reviewed the surveillance-camera footage. The lieutenant testified that Saleem previously had been convicted of two counts of aggravated robbery and one count of kidnapping and that Saleem had confined the victim in a bathroom during the commission of the offenses in that case.

Law enforcement applied for several search warrants in connection with the case, including a search warrant for historical cell-phone data from Saleem's cell-phone provider. An FBI agent performed a historical cell-site analysis of the data obtained from the search warrant. He concluded that Saleem's cell phone was within the service area of a cell-phone tower near the credit union at 4:16 p.m. on the date of the robbery. Saleem's cell phone was then turned off until 6:44 p.m., at which point it reconnected with the network within the service area of a cell-phone tower slightly to the east of the credit union. The cell-phone data indicated that Saleem's phone placed an outgoing call that evening to Saleem's son, M.N., and then traveled to the area of M.N.'s house.

In May 2020, M.N. was arrested on an unrelated charge. During a search incident to the arrest, state patrol found a handgun in M.N.'s car. A forensic scientist with the Minneapolis Police Department compared the discarded cartridge casings (DCCs) that were recovered from the scene of the robbery with test DCCs from the handgun found in M.N.'s car. He concluded that the DCCs were a match, indicating that the handgun was the weapon used in the robbery.

Also in May 2020, Saleem's niece, D.N., contacted law enforcement and spoke with the lieutenant investigating the robbery. At trial, D.N. testified that Saleem reached out to her in February 2020 and asked her to travel with him to Atlanta. They booked a flight together, and when they arrived at the airport, Saleem asked D.N. to carry about $10,000 with her. Saleem told D.N. that he had robbed a bank and gave her details about the robbery. D.N. relayed these details to the investigating lieutenant, who testified that her statements were consistent with details about the robbery that law enforcement had learned throughout the investigation.

The jury found Saleem guilty of all eight counts. The jury also found the existence of several aggravating factors in a separate Blakely proceeding.^[1] In April 2022, the district court sentenced Saleem to a total of 324 months in prison.^[2]

Saleem now appeals from the judgments of conviction.

DECISION

I. The district court did not err by denying Saleem's motion to suppress the evidence obtained from the search warrant for cell-site location information.

One of the search warrants that law enforcement obtained during the investigation was for historical cell-phone information from Saleem's cell-phone provider. The search-warrant application included a request for disclosure of historical call-detail records and data records for the weeks surrounding the robbery and historical GPS precision location information for the week of the robbery. This type of information is known as cell-site location information (CSLI).

In May 2021, Saleem filed a motion to suppress the CSLI evidence obtained as a result of the search warrant. The district court denied his motion to suppress and later admitted the challenged evidence at trial. Saleem argues that the district court committed reversible error by denying his motion to suppress the CSLI evidence obtained from the search warrant because the warrant was not supported by probable cause.

Both the United States and Minnesota Constitutions require that search warrants be supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. "A [search] 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) (quotation omitted). The warrant must allege "specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998).

We review a district court's legal determinations de novo, including a district court's determination of probable cause in a pretrial order on a motion to suppress. Holland, 865 N.W.2d at 673. This requires us to "determine whether there was a substantial basis to conclude that probable cause existed," and "[o]ur inquiry is limited to the information presented in the affidavit supporting the warrant." Id. We also recognize "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).

Saleem contends that the warrant was not supported by probable cause for two reasons: first, because the warrant failed to establish probable cause that Saleem committed a crime, as required by Minn. Stat. § 626A.42, subd. 2(a) (2022)^[3]; and second, because the warrant failed to establish probable cause that evidence of a crime would be found in Saleem's phone records. We address each argument in turn.

A. The search warrant complied with the substantive requirements of Minn. Stat. § 626A.42, subd. 2(a).

Saleem first argues that the search warrant violated state law because it did not comply with the tracking-warrant requirements found in Minn. Stat. §...