may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Wes Miles Martin,
Wendy Lea Aspros,
Crow Wing County District Court
File No. K102646
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald F. Ryan, Crow Wing County Attorney, Kristine R. DeMay, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for appellant)
Robert D. Miller, 111 Marquette Avenue South, Suite 110, Minneapolis, MN 55401 (for respondent Martin)
Charles D. Halverson, 221 Chippewa Street, Brainerd, MN 56401 (for respondent Aspros)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
The state appeals from a pretrial order finding that there was not probable cause to issue a warrant to search respondents’ residence and granting respondents’ motions to suppress evidence seized during a search of the residence pursuant to the search warrant. We affirm.
On March 11, 2002, Brainerd police officers Mike Bestul and Andy Galles executed a search warrant at the residence of respondents Wes Miles Martin and Wendy Lea Aspros. Bestul’s affidavit in support of the search warrant application provided the following information:
Bestul observed an unidentified male purchase two boxes of Target-brand Aphedrid pills while at a Target store on March 11, 2002. Bestul followed the male to his car, which was registered to Mary Marie Pappas, and contacted Galles to request assistance in conducting surveillance of the car. The male drove the car to a Fleet Farm store where Bestul watched him enter the store and, a short time later, leave the store carrying a small paper bag. The male then drove to a Cub Foods store and, a short time later, left the store carrying a small paper bag.
Narcotics agents followed the vehicle to a residence where the male stayed for about 20 minutes. The male left the residence and drove to Pappas’s residence. During this time, Galles looked at booking photos and identified the male as Brad Leroy Burson.
Agents approached Burson in Pappas’s driveway, and Bestul identified himself as a police officer. Burson consented to a search of his car, and Bestul found six boxes of pseudoephedrine pills.
The affidavit then states:
In talking with Brad Burson, he admitted to buying pills for Wes Martin. Brad Burson stated that he served time in jail with Wes Martin and Wes Martin had requested that he buy pills for him. Brad Burson also admitted to buying Toluol from ACE hardware in Brainerd also for Wes Martin. Brad Burson admitted to delivering some of these supplies to Wes Martin at his residence in Baxter. Brad Burson also stated that on 3-10-02, he was at the Rich Riles residence in Barrows, MN and observed a burner plate, an anhydrous ammonia tank, pots and pans and methamphetamine while at the Richard Riles residence. Your affiant knows through training and experience that these items are commonly used in the production of methamphetamine. Brad Burson stated that there was a very strong chemical smell. Brad Burson was at the Richard Riles residence to pick up Wes Martin and give him a ride back to his residence. Brad Burson stated that the methamphetamine manufacturing process was taking place in a small green bus on the property. Brad Burson stated that Wes Martin was at Richard Riles residence while he was there.
Brad Burson gave detailed directions to the Wes Martin and Wendy Aspros residence in Baxter and gave specific information on the floor plan of the residence.
The affidavit also states
that in 2001, [another officer] executed a search warrant at the residence of Wendy Aspros and Wes Martin in Baxter. At that time a clandestine methamphetamine laboratory was seized in the residence. Also seized were an amount of methamphetamine, surveillance camera, methamphetamine recipes and internet articles, night vision equipment and other items of evidence.
The affidavit further states that respondents’ residence was under surveillance “numerous times in the last two months,” and an officer “noted that the basement and garage lights are on at all hours of the night, and that the garage window has been covered.”
A search warrant was issued for respondents’ residence, and, upon executing the warrant, police found plastic bags, a glass plate, a mirror dish, and a small vial that all contained a white powder substance. Officers also found coffee filters with white powder residue, a digital scale, pseudoephedrine pills, razor blades, and miscellaneous drug paraphernalia.
Respondents were each charged with one count of first-degree controlled-substance crime and one count of conspiracy to commit a first-degree controlled-substance crime. Minn. Stat. §§ 152.021, subd. 2a (manufacture of methamphetamine); 152.096 (2000) (conspiracy). Respondents moved to suppress the evidence seized during the search of their residence. The district court found that the warrant application failed to demonstrate probable cause to search respondents’ residence and granted the motions. The court ultimately dismissed the charges against Aspros.
Before this court can reverse a district court’s pretrial determination, the state
must demonstrate “clearly and unequivocally that the [district] court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.”
State v. Eggler, 372 N.W.2d 12, 14 (Minn. App. 1985) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)) (other quotation omitted), review denied (Minn. Sept. 19, 1985). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).
Critical impact exists where the district court dismisses a complaint for lack of probable cause or “where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987). Here, the district court dismissed the charges against Aspros, and the state argues that suppression of the evidence found as a result of the search warrant will have a serious impact on the outcome of the trial against Martin. To fully appreciate the impact of suppression, we consider the state’s evidence as a whole. Scott, 584 N.W.2d at 416.
Without the evidence found at respondents’ residence, the state must rely upon (1) Burson’s statement that he purchased and delivered pseudoephedrine pills and toluol to respondents’ residence in the past and (2) the officers’ observations that the garage window was covered and that the basement and garage lights at the residence are on throughout the night. Because the probative value of this remaining evidence is minimal, the inability to use the suppressed evidence significantly reduces the likelihood of a successful prosecution. Therefore, the state has demonstrated critical impact, and we must determine whether the district court clearly and unequivocally erred in suppressing the evidence found at respondents’ residence.
“A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.” State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999) (citing U.S. Const. amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2002). “[R]eview of a district court’s probable cause determination is limited, with great deference afforded to the issuing court.” State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (citing State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983))). An issuing court’s determination of probable cause is reviewed to ensure that there was a substantial basis to conclude that probable cause existed. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). “Substantial basis” means a “fair probability,” given the totality of the circumstances, “that contraband or evidence of a crime will be found in a particular place.” Souto, 578 N.W.2d at 747 (quotation omitted). “Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information.” Id. (citation omitted). The supreme court
has historically required a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence for evidence of drug activity.
Id. at 747-48 (citation omitted).
Probable cause for a search warrant cannot be based upon vague and uncertain information. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998). Only the information presented in the affidavit in support of the search-warrant application may be considered in determining whether probable cause exists. Souto, 578 N.W.2d at 747. However, “the reviewing court is not to review each component of the affidavit in isolation but is to view them together.” State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). “[R]esolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants.’” Id. at 704 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)).
The district court found that the information in the search warrant application was insufficient to establish a nexus between the suspicious activity and respondents’ residence. We agree. 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). An 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). In general, a single incident of criminal activity “will support a finding of probable cause only for a few days at best.” State v. Cavegn, 356 N.W.2d 671, 673 (Minn. 1984) (quotation omitted). However, “[w]hen an activity is of an ongoing, protracted nature, the passage of time is less significant. Souto, 578 N.W.2d at 750 (citation omitted).
Bestul’s affidavit indicates that Burson “admitted to buying pills for Wes Martin” and states that Martin asked him to buy pills when the two served time in jail, but it does not indicate when Burson bought pills for Martin or when the two were in jail. Nor does it indicate that the pills found in Burson’s car were purchased for Martin.
Burson’s other statements similarly lack a temporal basis. Burson told the officers that he purchased toluol for Martin in the past and that he delivered some supplies to Martin at his residence, but the affidavit does not indicate when the purchase or delivery occurred. Burson could have delivered the supplies in 2001, before respondents’ residence was searched the first time. Also, Burson’s ability to provide a detailed floor plan of respondents’ residence only demonstrates that he was at respondents’ residence at some time; it does not indicate when he was at the residence.
The supreme court has “expressed strong disapproval of the omission of time from an affidavit in support of a search warrant application.” Harris, 589 N.W.2d at 789 (quotation omitted). Under the totality of the circumstances test, such an omission is not fatal where approximate timing of the suspicious activity may reasonably be inferred from the context of the affidavit. Id. But here, the affidavit contains no information that supports a reasonable inference when Burson delivered supplies to respondents’ residence. The only dates provided are the date Burson went to Riles’s residence and the date the officer saw Burson purchasing pseudoephedrine pills.
Where information supporting a search warrant application is devoid of any time-frame reference, the application is facially deficient and lacking in probable cause. See State v. Rosenthal, 269 N.W.2d 40, 41 n.2 (Minn. 1978) (noting that other jurisdictions consistently hold that affidavit is inadequate where it is silent on timeliness); Harris, 589 N.W.2d at 789 (noting supreme court’s “strong disapproval” of omission of time from an affidavit supporting a search-warrant application). To establish probable cause, there must be a fair probability that contraband or evidence of a crime will be found in a particular place at the time a warrant issues. Zanter, 535 N.W.2d at 633. Because the affidavit did not include a temporal basis for the activities it described, it did not establish a fair probability that contraband would be found at respondents’ residence at the time the warrant issued.
The affidavit also lacks sufficient facts to infer a reasonable nexus between Burson’s possession of pseudoephedrine pills and possible evidence of items used to manufacture methamphetamine at respondents’ residence.
Burson’s statement that he saw Martin a day earlier at Riles’s residence, where he smelled a strong chemical odor and saw items used in the manufacture of methamphetamine, suggests a nexus between criminal activity and Riles’s residence, not respondents’ residence. Burson’s statement that he purchased pseudoephedrine pills and toluol and delivered them to respondents’ residence, without saying when he did so, is too vague to establish a nexus between the pills in Burson’s possession when he was stopped by police and drug activity at respondents’ home. And even when considered in light of Burson’s statements, the fact that respondents’ garage window was covered and that their lights were on throughout the night did not establish a fair probability that evidence of criminal activity would be found at respondents’ residence.
In arguing that a sufficient nexus exists, the state relies extensively on three unpublished opinions of this court and two Eighth Circuit opinions. Unpublished opinions of this court are not precedential. Minn. Stat. § 480A.08, subd. 3(c) (2002). “Because the full fact situation is seldom set out in unpublished opinions, the danger of miscitation is great.” Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993). This danger is especially great in cases reviewing probable cause determinations because these determinations are inherently fact intensive.
The Eighth Circuit opinions that the state relies on are similarly problematic because they provide only a summary of the information contained in the affidavits. But even the summary information in those affidavits distinguishes those cases from the present case. In United States v. Allen, 297 F.3d 790, 793 (8th Cir. 2002), officers stopped a motor vehicle and found items used to manufacture methamphetamine. The driver implicated the defendant, and the defendant argued that there was an insufficient nexus between the information provided by the driver and the defendant’s residence. Id. at 794. But the affidavit established that the defendant spent the previous night with the driver purchasing pseudoephedrine pills and looking for anhydrous ammonia to steal. Id. at 793-94. Also, the driver said that the defendant had approximately thirty lithium batteries and twenty soda cylinders in his possession or at his residence. Id.
In United States v. Hartje, 251 F.3d 771, 774 (8th Cir. 2001), the defendant also argued that the facts outlined in the affidavit did not establish the required nexus with his residence. But the affidavit established that the defendant was seen purchasing items used in the manufacture of methamphetamine and that a reliable informant reported a recent distribution of methamphetamine at the defendant’s residence. Id.
Unlike the affidavits in Hartje and Allen, the affidavit in the present case does not contain any information that respondents were recently seen purchasing items used to manufacture methamphetamine. The affidavit establishes no more than that Burson delivered some supplies to Martin at his residence at some time; it does not indicate when the delivery occurred. Because the information available at the time the warrant was issued did not establish a substantial basis for probable cause linking respondents’ residence to criminal conduct, the state has not shown that the omnibus court clearly and unequivocally erred in determining that the affidavit lacked probable cause.
Aphedrid is apparently a brand name. The affidavit does not contain a further description of the pills.