This opinion will be unpublished and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
State of Minnesota,
Rusty Scott Culver,
Filed May 14, 2002
Robert H. Schumacher, Judge
Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for appellant)
Robert M. Paule, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN 55408 (for respondent)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
The State of Minnesota appeals from the district court's order suppressing evidence seized from a residence pursuant to a search warrant. The state alleges the district court erred in ruling that the information submitted with the warrant application was insufficient to establish the required nexus between the alleged criminal conduct and the residence. We affirm.
On March 17, 1999, Nebraska State Patrol Officer Terry Livengood stopped a pickup driven by Steven Laqua. The truck contained 201 pounds of marijuana. During questioning, Laqua decided to cooperate with the investigation. Laqua told Livengood that he was transporting the marijuana to Rochester, Minnesota for delivery to Roger Bennett. Laqua provided information regarding Bennett's trailer residence. Livengood contacted Rochester police to relay this information. Agents from the Bureau of Criminal Apprehension were brought in to assist with the operation.
On March 18, 1999, Bureau of Criminal Apprehension Agent Jeff Hansen met with Laqua to prepare for a controlled delivery of the marijuana to Bennett. Laqua told Hansen that two weeks prior, respondent Rusty Scott Culver, Joseph Kruger, and Kruger's girlfriend had accompanied Laqua to Arizona with $131,000 to purchase marijuana. Laqua said that Kruger was the "accountant" for the marijuana trafficking.
Hansen placed a listening device on Laqua, and Laqua drove the pickup to Bennett's trailer. When Laqua spoke with Bennett, Laqua said that he had not yet called "Rusty," and Bennett replied that "Rusty" was supposed to send "a bunch of money" to their source by 3 p.m. that day. Laqua discussed a prior situation in which Culver was supposed to meet Laqua half way so that Culver could get the money directly instead of Laqua's mailing it. Bennett replied that only he and Kruger have access to the money. Laqua asked Bennett what he was going to do about "Rusty" because he was spending a great deal of money. Bennett confirmed that "Rusty" had spent over $100,000. This evidence led to the execution of a search warrant at Bennett's trailer. The officers found $7,000 cash, as well as books and magazines about drug smuggling operations, marijuana horticulture, and marijuana hydroponics.
That afternoon, Investigator Jerry Olson of the Southeast Minnesota Narcotics Task Force observed three people burning something at Culver's residence near the barn. Olson also saw Kruger leaving Culver's residence at that time. Soon after, Bureau of Criminal Apprehension Agent Herm Dybevik observed Kruger drive past his own residence. Dybevik believed that Kruger noticed the law enforcement officers parked outside his residence and thus did not stop. Soon thereafter, officers secured Culver's residence and determined that the men were burning garbage.
Later that day, a warrant was issued to search Culver's residence. When the warrant was executed, officers found items and documents linking Culver to the drug trafficking. Based on this evidence, Culver was charged with controlled substance crimes, including two counts of conspiracy. Subsequently, on December 21, 2001, the district court granted Culver's motion to suppress the evidence seized from Culver's residence pursuant to the search warrant. The district court suppressed the evidence, ruling that the issuing judge did not have a substantial basis upon which to conclude that probable cause existed to search Culver's residence. The charges against Culver were dismissed. This appeal followed.
In felony cases, the state can appeal pretrial orders suppressing evidence when the state can clearly demonstrate that the suppression order will have a critical impact on the state's ability to prosecute the defendant. Minn. R. Crim. P. 28.04 subd. 2(1); State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995). In this case, the suppression order resulted in the dismissal of the charges; accordingly, the state can make the requisite critical impact showing.
When determining whether a warrant was supported by probable cause, the reviewing courts give great deference to the issuing judge's decision. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). On appeal, the court seeks to determine if the issuing judge had a substantial basis for concluding that probable cause existed. Id. The reviewing court looks to the totality of the circumstances, as available to the issuing judge by way of the affidavits before the judge, to determine if the issuing court had a substantial basis for concluding that probable cause existed to search the location at issue. Id. When the request is for the court to issue a warrant authorizing the search of a particular location, "there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." Id. at 749. This is commonly called the "object-place" nexus requirement.
The state points to a variety of evidence in the affidavit supporting the request for a warrant to search Culver's residence as providing probable cause to believe that the criminal conduct was an ongoing enterprise and that Culver was involved. Significantly, the affidavit detailed the information regarding the large amounts of money involved, and the large quantities of marijuana being transported from Arizona to Minnesota. It is clear that probable cause existed to suspect Culver of criminal conduct and that this drug operation was an involved, large-scale enterprise.
The more exacting issue before the reviewing court below, and this court now, involves analyzing the evidence before the issuing judge indicating that evidence of Culver's criminal activity would be found at his home. None of the information before the issuing judge stated that any evidence was kept at Culver's house. The cash referenced had already been used to purchase the drugs; the drugs were found in the pickup (the 201 lbs.), or were alleged to be en route from Arizona (the 300 lb. load). The affidavit contained additional information regarding the bookkeeping records of the operation. The informant alleged that Kruger kept the records while Bennett was out of town, but Bennett retrieved the records upon his return. There was no allegation that Culver had the records at any time, or that the records had ever been at Culver's home. The drugs were deposited at Bennett's residence, not Culver's, and there were no allegations of any planned or past transactions at Culver's residence.
The state points to the following information in the affidavit supporting the warrant application: (1) the information that Culver was supposed to be delivering a "bunch of money" to a supplier that day, (2) Olson observing three people burning something outside of Culver's barn on his property, (3) Olson observing Kruger leaving Culver's residence at the time, and (4) Kruger's arguably evasive conduct upon observing officers outside of his home after he had left Culver's residence. The district court, upon review, decided that these items were not sufficient to satisfy the nexus requirement.
We conclude that there were no facts implicating Culver's residence. The first two items were effectively negated. The officers discovered that the individuals were burning garbage prior to the warrant being issued. The affidavit conceded this point. Also, although the affidavit included the information about Culver delivering money to a source, the affidavit stated that this transaction was to occur by 3:00 p.m., when the warrant was requested and issued sometime after 4:30 p.m.
The remaining two items present a closer call but still fall short of the standard under Souto. Kruger's visit to Culver's place could have been for any number of reasons, and there was no information indicating this visit involved criminal conduct or evidence – unlike other cases wherein the suspect left his home immediately before a drug transaction. See Novak v. State, 349 N.W.2d 830, 832 (Minn. 1984) (probable cause to search location when defendant left house just after arranging drug sale and delivered drugs); State v. Yaritz, 287 N.W.2d 13, 15 (Minn. 1979) (probable cause existed where two drug sales arranged from defendant's home and defendant went directly to sale). Similarly, Kruger's apparently avoiding contact with the police outside of his own home indicates little about Culver's possible criminal activity, much less criminal conduct at his home. Arguably, one could draw an inference that Kruger might have obtained contraband or evidence at Culver's, given that he had just left there, and was evading police for that reason. But this extrapolation is tenuous.
The state also argues that the absence of any alternative location for incriminating evidence supports an inference that Culver's residence contained incriminating evidence. The problem with this assertion is that there is no evidence indicating that Culver was the one to keep any of the drugs or the records.
In short, the state's evidence consisted of information that this was a large-scale drug operation and Culver was a part of it. It is certainly reasonable to assume that some evidence could be found at Culver's residence. In Souto, however, the supreme court reiterated and reaffirmed the "object-place" nexus requirement. 578 N.W.2d at 749. The information available at the time the warrant was issued did not establish a substantial basis for probable cause linking Culver's residence to the criminal conduct at issue. The district court properly suppressed the evidence seized from Culver's home when the warrant was executed.