This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Wes Miles Martin,
Crow Wing County District Court
File No. K7011144
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.
On May 21, 2001, BCA Special Agent Thomas Wyatt learned that Arvid Forssi had discovered a suspected methamphetamine lab in his cabin near Grand Rapids. Wyatt provided this information to Itasca County sheriff’s investigator Dean Scherf, who, with Forssi’s direction and consent, found a hidden key and entered the cabin. Inside, Scherf recovered items that, based on his training and experience, he suspected were used to manufacture methamphetamine. Scherf also found a portfolio, which contained an investigative report detailing the January 2001 arrest of Jeff Shepard and Dawn Bowman and two letters postmarked March 2001. One letter was addressed to appellant Wes Martin at 810 Kingwood Drive South, Baxter, Minnesota; the other letter was addressed to William Aspros at the same address. Scherf also found Internet articles and recipes for manufacturing methamphetamine.
Wyatt’s investigation established that Martin lived at 810 Kingwood Drive and William Aspros had been deceased since 1991. But Aspros’s widow also lived at the Kingwood residence. Wyatt checked Martin’s criminal history, which included two prior arrests for controlled-substance crimes. Wyatt also spoke with Forssi’s daughter, Shirley Peterson, who advised that she, Forssi, and Martin, her son, were the only people with keys to the cabin. Peterson stated that she was unaware of anyone visiting the cabin since the previous fall.
Wyatt went to Martin’s residence at approximately 6:00 p.m., where he observed peepholes in the front door and garage door and a surveillance camera mounted above the front door. Wyatt spoke with Martin, who denied having a key to the cabin but admitted visiting the cabin two months earlier to secure a broken door. Martin then denied Wyatt’s request for permission to search the residence.
Later that evening, Wyatt applied for and obtained a search warrant for Martin’s residence. Wyatt’s affidavit in support of the search-warrant application stated that he believed Martin was responsible for the methamphetamine lab found at Forssi’s cabin and that Martin was likely to have additional chemicals, manufacturing equipment, and other evidence at his residence. Wyatt also sought authorization to make a nighttime, unannounced entry, stating that this would allow for minimal exposure to hazardous chemicals and would prevent the occupants from destroying evidence or planning to harm officers.
When the warrant was executed at 9:38 p.m., officers seized methamphetamine and items commonly used to manufacture methamphetamine. The following day, Martin was charged with one count of first-degree controlled-substance crime (manufacturing methamphetamine), in violation of Minn. Stat. § 152.021, subds. 2(a), 3(a) (2000), and one count of conspiracy to commit first-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.021, subds. 2(a), 3(a), .96 (2000). The complaint was later amended, adding one count of first-degree controlled-substance crime (possession of methamphetamine), in violation of Minn. Stat. § 152.021, subd. 2(1) (2000). Martin moved to suppress the evidence seized pursuant to the search warrant. The district court denied Martin’s motion and his subsequent motion for reconsideration.
Martin waived his right to a jury trial and submitted the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). On July 25, 2002, Martin was found guilty of all three counts. This appeal followed.
The United States and Minnesota constitutions provide that no warrant shall issue without a showing of probable cause. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. With limited exceptions, a search is lawful only if it is conducted pursuant to a valid search warrant issued by a neutral and detached magistrate upon a finding of probable cause. Minn. Stat. § 626.08 (2000); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999); State v. Albrecht, 465 N.W.2d 107, 108 (Minn. App. 1991). Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched. Harris, 589 N.W.2d at 787-88; State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970).
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
We review the district court’s determination of probable cause to issue a search warrant to determine whether there is a substantial basis to conclude that probable cause exists. In this context, “substantial basis” means a “fair probability,” given the totality of the circumstances, “that contraband . . . will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). In determining whether a warrant is supported by probable cause, we do not review the lower court’s decision de novo. Harris, 589 N.W.2d at 787-88. Rather, we give great deference to the issuing court’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).
Minnesota courts require “a direct connection, or nexus, between the crime and the particular place to be searched, particularly in cases involving the search of a residence, for evidence of drug activity.” State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998). “When the request of the court is for the issuance of a warrant to search 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. The nexus between the crime and place is clear where direct information connects an item to a location. See State v. Cavegn, 356 N.W.2d 671, 674 (Minn. 1984) (stating that nexus is clearer that drugs would be found in apartment where there is direct information that a drug sale actually occurred there); State v. Braasch, 316 N.W.2d 577, 578-79 (Minn. 1982) (establishing direct connection to residence where defendant was observed entering residence shortly after picking up package containing drugs); State v. Yaritz, 287 N.W.2d 13, 15 (Minn. 1979) (finding direct connection to residence where defendant immediately went from residence to drug sale after arranging sale by telephone); State v. Bynum, 579 N.W.2d 485, 487 (Minn. App. 1998) (finding direct connection between drug sale and residence where defendant sold drugs from his automobile, the automobile was observed outside defendant’s home, and no evidence suggested that defendant stored drugs in a separate place or obtained drugs from another source before the sale).
Martin argues that the search warrant was invalid because it failed to establish a direct connection between the methamphetamine lab found in Forssi’s cabin and his residence, particularly in light of the warrant’s reliance on stale information. We agree. While there is evidence connecting Martin to the cabin containing the methamphetamine lab, our analysis requires us to determine whether that evidence linking Martin to the lab provides a direct connection to his home. When viewed in its totality, the evidentiary connection to Martin’s residence is de minimus. Two letters containing Martin’s home address are the only evidence linking the methamphetamine lab in Grand Rapids to Martin’s home in Baxter. There is no evidence of suspicious activity by Martin or others at or near the residence, or of the disposal of manufacturing components. Without more, two letters found at Forrsi’s cabin and the observation of surveillance equipment above Martin’s front door are insufficient to establish a direct connection between the criminal activity related to the methamphetamine laboratory and Martin’s home, particularly when Martin’s last known visit to the cabin was two months earlier. While the evidence suggests that Martin was involved with drug activity at the cabin, it does not link that criminal activity to Martin’s residence. See Souto, 578 N.W.2d at 749 (concluding that defendant’s “previous use and purchase of a controlled substance at locations removed from her house certainly were evidence of a crime, but no evidence whatsoever of criminal activity linked to her home”). Reviewing the affidavit in its entirety, we conclude that the information it contained did not establish a fair probability that methamphetamine or evidence of its manufacture would be found at Martin’s residence.
A stale factual basis may also invalidate a search warrant. Id. at 749-50. To establish probable cause to believe that evidence of a crime will be at a particular location, the proof “must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time.” State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984) (citing Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)). In determining whether information supporting a search warrant is stale, we consider whether (1) there is any indication of ongoing criminal activity, (2) the items sought are incriminating, (3) the property is easily disposable, and (4) the items sought are of enduring utility. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). “[E]vidence of more than generally suspicious activities is necessary to show continuation of the activity after a significant period of time has elapsed.” Souto, 578 N.W.2d at 750. At best, the evidence here establishes a general suspicion that criminal activity was occurring at Martin’s residence. The postmarks on the letters and Martin’s statement to Wyatt establish that Martin was at the cabin two months prior to the issuance of the search warrant. Martin’s 1989 and 1995 arrests establish prior contacts with police, but, when combined with the other evidence, they do not support a conclusion that he was involved in ongoing criminal activity in 2001. Neither surveillance of the residence nor other investigative techniques had been conducted to establish evidence of recent criminal activity. Methamphetamine and the ingredients for its manufacture are easily disposable. And while the manufacturing equipment is not, this factor alone is not sufficient to overcome an absence of evidence of continuing criminal activity. We, therefore, conclude that, in its totality, the information contained in the search warrant application was stale and did not support a finding of probable cause to search Martin’s residence.
Because the search-warrant affidavit did not establish a fair probability that evidence of a crime would be found at Martin’s residence, the district court erred in declining to suppress the evidence seized pursuant to the execution of the search warrant.
Martin argues for the first time on appeal that the information contained in Wyatt’s affidavit failed to justify authorization of an unannounced entry. We generally will not decide issues that were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). We may “consider a plain error not previously brought to the attention of the district court if the error affects substantial rights.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). The appellant must show that the district court’s ruling (1) was error, (2) that the error was plain, and (3) that the error affected appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Were we to conclude that the warrant contained sufficient information to support a probable-cause determination, the district court’s authorization of a nighttime, unannounced entry would not constitute error.
Police officers must inform the issuing magistrate of the circumstances that they believe justify an unannounced entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). The “police must have a reasonable suspicion of a threat to officer safety or the likelihood of destruction of evidence, and this reasonable suspicion must be supported by a particularized showing of dangerousness, futility, or likelihood of destruction of evidence.” State v. Botelho, 638 N.W.2d 770, 778 (Minn. App. 2002) (emphasis in original); see also Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001). Reasonable suspicion is “something more than an unarticulated hunch[;] . . . the officer must be able to point to something that objectively supports the suspicion at issue.” Wasson, 615 N.W.2d at 320 (citing State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989)).
If coupled with a valid probable-cause determination, the presence of surveillance equipment, which was not common for a dwelling in this region, would provide strong evidence of the resident’s efforts to avoid detection and establish reasonable suspicion that knocking and announcing the presence of police would inhibit effective investigation and lead to the destruction of evidence. Thus, were we to decide this issue in conjunction with a valid finding of probable cause, we would conclude that authorization of a nighttime, unannounced entry was not plain error.