This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1612

 

 

State of Minnesota,

Respondent,

 

vs.

 

Leroy Devon Williams,

Appellant.

 

 

Filed May 15, 2001

Affirmed

Schumacher, Judge

 

Clay County District Court

File No. K100462

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Lisa Borgen, Clay County Attorney, Courthouse, Post Office Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellant Leroy Devon Williams pleaded guilty to a charge of terroristic threats and the court found him guilty of felon in possession of a firearm after trial on stipulated facts. The court sentenced Williams to 21 months for terroristic threats and 60 months for felon in possession of a firearm, to be served concurrently. Williams challenges the court's denial of his motion to suppress evidence. He contends the search warrant application and affidavit were not supported by probable cause and failed to establish sufficient grounds for a nighttime search. We affirm.

FACTS

On March 8, 2000, about 10:00 p.m., Williams went to the M&H convenience store in the city of Moorhead, where he encountered Lillia Torres and her son R.T. After engaging in a verbal exchange with Torres, Williams pulled out a canister of mace and sprayed it at Torres and R.T. She, in turn, struck Williams with her fist. Williams drove away but returned shortly. He pointed a black handgun at Torres's vehicle from the left window of his vehicle and then drove away. The incident was reported to M&H employees, who notified police.

Moorhead police officers stopped Williams six minutes later and arrested him at a location that the officers later learned was one and one-half blocks from his home. The officers searched Williams and his vehicle and found a can of mace but no handgun. An investigation revealed that Williams lived in a yellow house on Fifth Avenue South and that Williams's roommate drove a red tracker-type vehicle. The officers located the yellow house at 515 Fifth Avenue South and saw a red tracker-type vehicle in the driveway.

Detective Richard Norwig was contacted at 11:30 p.m. to obtain a search warrant for Williams's residence. Norwig prepared an affidavit, application, and warrant. He faxed it to the court at 5:00 a.m. on March 9, 2000, and the court faxed the signature pages back 15 or 20 minutes later. Norwig testified that the primary reason for applying for the search warrant was that Williams may have had time to go home and drop off the gun during the six minutes before he was stopped. A nighttime search was secured because a firearm was used in the commission of the crime and Williams had a roommate who could have destroyed or disposed of the weapon. The search warrant was executed at 5:50 a.m. The officers found in a bedroom of the home mail addressed to Leroy Devon Williams, a black BB handgun, and a Norinco SKS rifle.

D E C I S I O N

In reviewing pretrial orders on motions to suppress, this court independently reviews the facts and determines, as a matter of law, whether the trial court erred in denying suppression of the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

A search warrant may be issued upon probable cause and supported by affidavit. Minn. Stat. 626.08 (1998). The affidavit must set forth the facts tending to establish the grounds of the application or probable cause for believing the facts exist. Minn. Stat.  626.10 (1998). In determining whether there is probable cause to issue a search warrant, appellate courts afford great deference to the issuing judge's finding. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). Appellate review is limited to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed. Id. at 788. To determine whether a substantial basis exists, this court looks to the totality of the circumstances. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).

Williams claims the search warrant was not issued on probable cause because there was no direct connection or nexus between the crime and the place to be searched. See State v. Souto, 578 N.W.2d 744, 751 (Minn. 1998) (finding no probable cause where affidavit showed no direct connection between defendant's home and access to drug supply). Williams used a weapon in the commission of a crime. The officers stopped Williams six minutes after the incident was reported, one and one-half blocks from his home. They searched Williams and his vehicle and found no gun.

In Minnesota, probable cause exists if "certain identifiable objects are probably connected with certain criminal activity and may probably be found at the present time." State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985) (citations omitted). Other jurisdictions have held that the home is a likely place to keep guns. See United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (reasonable to believe defendant's gun would be found in his residence); United States v. Rahn, 511 F.2d 290, 293-94 (10th Cir. 1975) (reasonable to assume individuals keep weapons in their homes). We conclude that, under the facts of this case, it was reasonable for the issuing judge to find a sufficient nexus between the crime and the residence to support probable cause. There is a direct connection between the crime and the residence given the location of the crime scene, the home, the location of the stop, and the tire tracks in the driveway.

Williams contends the search warrant affidavit failed to show with particularity that a nighttime search was necessary. A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m., unless the court determines a nighttime search outside those hours "is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public." Minn. Stat. 626.14 (1998).

The search warrant application stated that a "firearm was used in the commission of this crime, the suspect has a roommate(s) who could destroy or dispose of the weapon." Williams was stopped at 10:00 p.m., and no gun was found in his vehicle. After the officers conducted an investigation, they learned that Williams lived only five minutes away, that there were fresh tire tracks in his driveway, and that Williams had a roommate who could potentially remove or destroy the gun. These facts provided reason to act quickly to conduct the search. Even if the need for a nighttime search was questionable, the "resolution of doubtful or marginal cases should be 'largely determined by the preference to be accorded to warrants.'" State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)). We conclude the search warrant application contained sufficient information to satisfy the need for a nighttime search.

Williams's pro se brief additionally contends that (1) the search warrant application misled the magistrate by omitting key facts; (2) the application failed to include the time frame within which fresh tire tracks were made in Williams's driveway; and (3) the affiant violated the rules by requesting the search warrant orally, failing to record his conversation with the judge as required by Minn. R. Crim. P. 36.04, and securing the search warrant by facsimile. The first two claims are resolved by our decision that the search warrant was issued on probable cause. Williams's third claim is without merit, because the search warrant was requested in writing by facsimile transmission as authorized by Minn. R. Crim. P. 36.01. The recording requirement applies to warrants requested orally. Minn. R. Crim. P. 36.08 cmt.

The totality of the circumstances show that the search warrant was issued on probable cause and the nighttime search was justified by the facts in the affidavit. The trial court did not err in denying the motion to suppress evidence obtained as a result of the search.

Affirmed.