This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Marvin Coad Stewart,




Filed ­­­November 19, 2002


Klaphake, Judge


Hennepin County District Court

File No. 98014307


Joseph P. Tamburino, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N




            Appellant Marvin Coad Stewart appeals from convictions of controlled substance crime, claiming that the district court erred in denying his motion to suppress evidence seized upon execution of a search warrant at his residence.  Because we conclude that the warrant affidavit lacked probable cause, we reverse.


The United States and Minnesota Constitutions provide that warrants must be supported by probable cause.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  “[A]n appellate court should afford the district court’s [probable cause] determination great deference.”  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) (citations omitted).  We review the district court’s decision to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  “Substantial basis” in this context means a “fair probability,” given the totality of the circumstances, “that contraband or evidence of a crime will be found in a particular place.”  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).  “Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information.”  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citation omitted).

The information in the warrant here included the following: (1) a confidential informant or informants claimed that appellant was involved in a motorcycle theft ring; (2) a pen register showed “numerous” phone calls from the residence of one key suspect to three other residences, one of which was owned by appellant; (3) another key suspect listed appellant’s address as his own on a fake driver’s license, and police observed that suspect’s car parked across the street from appellant’s residence one week before the execution of the warrant; (4) appellant and the two key suspects were associated with the same motorcycle gang; (5) appellant had seven vehicles registered in his name, including four motorcycles, but reported total earnings of less than $14,500 for the years 1986 through 1996 combined; and (6) appellant was arrested five times from 1970 to 1997.  For several reasons, we conclude that this information failed to provide probable cause to believe that evidence of a motorcycle theft ring would be found at appellant’s residence.

            Probable cause exists only if the information in the warrant application is not stale under the particular circumstances of the case.  State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985).  The affidavit must contain facts “so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”  Souto, 578 N.W.2d at 750 (quotation omitted).  Most of the information here is not closely related to the time the warrant was issued.  For instance, the pen register was set up more than five months before the warrant was executed, and the affidavit did not mention the frequency or the dates of the calls made from the residence of a key suspect to appellant’s residence.  Moreover, the affidavit listed appellant’s income through 1996, but the warrant was issued in February 1998; appellant could have purchased and registered his vehicles after 1996.  The only information that was less than five months old was that one of the suspects had parked his car across the street from appellant’s residence one week before execution of the warrant, but the affidavit did not indicate whether the suspect met with appellant or entered his home.  Without more, evidence that a suspect’s car was parked near appellant’s home does not provide a substantial basis to conclude that contraband would be found at appellant’s residence.

In addition, only one statement by a confidential informant (CI) pertained to appellant:  his name was included in a list of persons said to be “involved in numerous motorcycle thefts in the metropolitan area.”  But it is unclear whether the CI who identified appellant was the same CI whose detailed description of the operation of the theft ring was corroborated by independent police investigation.  Because the statement is largely uncorroborated by either independent police investigation or by other statements within the affidavit, the reliability of the CI is unascertainable.  See State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (stating that informant's reliability may be established by police corroboration of information supplied). 

Finally, the information in the affidavit failed to establish any nexus between appellant’s residence and the alleged crime ring.  See Souto, 578 N.W.2d at 747-48 (stating that information in search warrant affidavit must establish nexus between alleged crime and particular premises to be searched).  The affidavit stated that “numerous” phone calls were made to three different residences, but it did not specifically indicate that more than one call was made to appellant’s residence.  In fact, there was no evidence that appellant had even one conversation with the suspect because the affidavit did not mention the substance of the conversations or the identity of the callers.  See id. at 749 (holding that phone calls without evidence of substance of calls or identity of callers failed to establish nexus to appellant’s home).  Moreover, a suspect’s use of appellant’s address on a fake driver’s license did not establish that appellant was likely to have evidence of the theft ring at his residence; it proved only that the suspect knew appellant’s address.

Although great deference must be given to the district court’s decision to issue a warrant, this case involves issues with clear constitutional implications.  We cannot defer to a probable cause determination based on stale evidence that failed to establish a nexus between appellant’s residence and the alleged crime.  Accordingly, all evidence obtained from appellant’s residence must be suppressed.  Because that evidence provided the sole basis for appellant’s convictions of controlled substance crime, the convictions must be reversed.

            Reversed. [1]

[1] Given our decision to reverse, we need not address appellant’s other claim that the district court erred in denying his motion to dismiss for denial of a speedy trial.