This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Gary Lee Nystrom,
Filed September 6, 2005
File No. K8-03-144
Michael J. Thompson, Meeker
Mike Hatch, Attorney General, Thomas R. Ragatz, Karen A.
Finstad Hammel, Assistants Attorney General, 1400
John M. Stuart, State Public Defender, Theodora K. Gaitas,
Assistant State Public Defender,
Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
Appellant challenges his conviction of first-degree controlled-substance crime, arguing that the search-warrant application did not establish a nexus between appellant’s criminal activity and his residence, and was therefore unsupported by probable cause. Because we conclude that the application did establish a nexus and was supported by probable cause, we affirm appellant’s conviction.
In February 2003,
appellant Gary Nystrom was charged with first-degree possession and manufacture
of methamphetamine in violation of Minn. Stat. § 152.021, subds. 2(1) and
2a (2002). Nystrom had been under law
enforcement surveillance since July 2002, when he began to make purchases of
pseudoephedrine—an item used in the manufacturing of methamphetamine—at various
stores in central
Using this information, the agent prepared a search-warrant application for Nystrom’s residence. The agent indicated in a supporting affidavit that: (1) people normally keep records of their personal and business affairs in their residences; (2) from his “training and experience,” people manufacturing methamphetamine generally amass significant quantities of precursors and chemicals used in the manufacturing process; (3) methamphetamine is typically manufactured in various locations, including houses, garages, and vehicles; and (4) receipts for items purchased during the manufacturing process are retained for later reimbursement with money or drugs. The affidavit also stated that Nystrom resided at a house in Litchfield and that Nystrom’s landlord verified that Nystrom was living in the house; the landlord added that the house’s garage appeared to be used as a mechanic’s shop. Finally, the affidavit stated that Nystrom had purchased ten gallons of Toluol but was arrested in possession of only three gallons. The affidavit concluded: “Your affiant believes Nystrom’s residence contains items showing Nystrom’s involvement in the manufacturing of methamphetamine. These items include receipts of precursor or chemical purchases as well as chemicals used in the manufacturing process.”
The search-warrant application sought permission to search Nystrom’s residence for chemicals and precursors in the manufacture of methamphetamine, receipts for those chemicals and precursors, and items associated with the manufacture of methamphetamine. A district court judge approved the application, and Nystrom’s residence was searched. Police found components of a methamphetamine lab throughout the house and seized more than 33 grams of methamphetamine.
At an omnibus
hearing, Nystrom moved to suppress the evidence, arguing that the search
warrant was not supported by probable cause.
The district court denied the motion.
Nystrom then submitted his case to trial by the court on stipulated
facts pursuant to State v. Lothenbach,
296 N.W.2d 854 (
D E C I S I O N
pretrial orders on motions to suppress evidence, we may independently review
the facts and determine, as a matter of law, whether the district court erred
in suppressing—or not suppressing—the evidence.” State
v. Harris, 590 N.W.2d 90, 98 (
presence of probable cause is determined under the totality of the
may rely on training and experience to support the assertions made in
search-warrant applications, but “mere suspicion does not equal probable
cause.” State v.
standard of review appropriate for an appellate court reviewing a district
court’s probable cause determination made upon issuing a warrant is the
deferential, ‘substantial basis’ standard.”
State v. Rochefort, 631 N.W.2d
802, 805 (
Nystrom argues that the search-warrant affidavit was unsupported by probable cause because the affidavit did not establish a nexus between his alleged criminal activity and his residence. Nystrom asserts that the drug agent’s general characterizations that people keep business records at home and that methamphetamine manufacturing requires significant amounts of chemicals, as well as his landlord’s statements that Nystrom rented the house, do not establish a nexus. The state argues that the totality of the affidavit establishes a nexus and that the agent’s qualifications are sufficient to support his statements.
“[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.” Souto, 578 N.W.2d at 747-48. A nexus has been established in cases where (1) a sale of drugs took place at a residence; (2) harvested marijuana was found partially concealed on a suspect’s land; (3) a suspect entered her residence after receiving a package known to contain hashish, and; (4) a suspect arranged drug sales from a telephone within his residence. State v. Kahn, 555 N.W.2d 15, 18-19 (Minn. App. 1996) (collecting cases). Nystrom claims that the distance between the location of his arrest and his residence—approximately 106 miles—is so great that the state must demonstrate an additional link to implicate his residence for search-warrant purposes.
disagree. From the totality of the
circumstances, we conclude that there is sufficient probable cause to support
the state’s search-warrant application.
First, the drug agent’s conclusion based on his qualifications—which were
extensively listed in his supporting affidavit—that Nystrom is likely to keep
receipts and methamphetamine precursors in his residence provides a requisite
nexus between the criminal activity and the place to be searched. Cf.
Souto, 578 N.W.2d at 750 (“In determining probable cause, the magistrate
must consider the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information.”). Second, the
supporting affidavit states that Nystrom’s landlord confirmed that Nystrom lived
at the residence’s address. Third, the
affidavit observes that Nystrom was arrested in
Relying on the
factors enunciated in Harris and Pierce to determine probable cause for a
search warrant, we conclude that the transitory nature of the manufacture of
methamphetamine, the opportunity to conceal the drug’s precursors, the type of
crime Nystrom was arrested for (methamphetamine possession), and the normal
inference that he would keep the items in his residence, provides the issuing
judge with a “substantial basis” for believing, or a “fair probability,” that
contraband would be found in Nystrom’s residence. See
attempts to support his argument for reversal by relying on Kahn.
In Kahn, the defendant, a
Here, unlike the affidavit in Kahn,the agent’s affidavit developed additional links between Nystrom’s alleged crime and his residence by observing that people keep receipts of items purchased for methamphetamine manufacture in their residences, that Nystrom was arrested in possession of only three gallons of Toluol after he was detected purchasing ten gallons, that he was known to reside at the place to be searched, and that there was no indication that he was storing the precursors at any other location. Viewed from the totality of the circumstances, the search-warrant application provided the issuing judge with a “substantial basis” to conclude there was probable cause that methamphetamine would be found in Nystrom’s residence. We reject Nystrom’s challenge to the sufficiency of the search warrant and affirm his conviction.