This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1968

 

State of Minnesota,

Respondent,

 

vs.

 

Gary Lee Nystrom,

Appellant.

 

Filed September 6, 2005

Affirmed

Dietzen, Judge

 

Meeker County District Court

File No. K8-03-144

 

Michael J. Thompson, Meeker County Attorney, 325 Sibley Avenue North, Litchfield, MN 55355; and

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Karen A. Finstad Hammel, Assistants Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

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. 

FACTS

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 Minnesota.  Nystrom purchased a total of 13 boxes of pseudoephedrine over two months.  On February 12, 2003, a drug-task-force agent (agent) learned that Nystrom had purchased ten gallons of Toluol and one gallon of muriatic acid acetone, both of which are methamphetamine precursors, over a two-week period.  The following day, Nystrom was arrested in Crow Wing County when officers found in Nystrom’s vehicle a methamphetamine lab, three gallons of Toluol, and enough pseudoephedrine to manufacture more than one pound of methamphetamine.  Nystrom told the arresting officers that he was on his way to a cabin to go ice fishing.    

            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 (Minn. 1980).  The district court found Nystrom guilty of manufacturing methamphetamine and sentenced him to 110 months in prison.  This appeal follows.

D E C I S I O N

            “When reviewing 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 (Minn. 1999).  The federal and state constitutions protect citizens from unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  State law allows a search warrant to be issued only upon a finding of probable cause, supported by an affidavit, particularly describing the place to be searched and the property to be seized.  Minn. Stat. § 626.08 (2002). 

            The presence of probable cause is determined under the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).  The issuing judge must decide “whether, given all the circumstances set forth in the affidavit before him, 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.”  Id.  Factors influencing probable cause to believe items will be found in a particular place include the: (1) type of crime; (2) nature of the items sought; (3) extent of the suspect’s opportunity to conceal items; and (4) inferences as to where items would normally be kept.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999); State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984).  “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). 

Police officers 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. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994).  “The evidence necessary to support a finding of probable cause is significantly less than that required to support a conviction.”  Harris, 589 N.W.2d at 790.  “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”  Id. at 790-91 (quoting Gates, 462 U.S. at 244 n.13, 103 S. Ct. at 2335).        

            “[T]he 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 (Minn. 2001).  “[T]his court’s task on appeal is to ensure that the issuing judge had a ‘substantial basis’ for concluding that probable cause existed.”  Souto, 578 N.W.2d at 747 (quotation omitted).  Appellate courts must not review each component of the search-warrant affidavit in isolation but must determine the sufficiency of the affidavit from its totality.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). 

            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.    

            We 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 Crow Wing County and officers observed a methamphetamine lab and a large quantity of pseudoephedrine in his vehicle.  Importantly, at the time of his arrest, Nystrom was in possession of only three gallons of Toluol, when it had been confirmed that Nystrom had purchased ten gallons of the same substances.  It is therefore reasonable for the drug agent to conclude that Nystrom had recently used seven gallons of Toluol to manufacture methamphetamine. 

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 Gates, 462 U.S. at 238, 103 S. Ct. at 2332 (“fair probability”); Rochefort, 631 N.W.2d at 805 (“substantial basis”); Harris, 589 N.W.2d at 788 (“substantial basis”); Pierce, 358 N.W.2d at 673 (listing factors considered in determining probable cause).  Additionally, the information on which the affidavit was prepared was not stale, as Nystrom had been under surveillance for approximately nine months but was arrested only the day before the search warrant was issued.  See Souto, 578 N.W.2d at 750 (“[T]he proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”) (alteration in original) (quotation omitted). 

            Nystrom attempts to support his argument for reversal by relying on Kahn.  In Kahn, the defendant, a resident of Elgin, was arrested in Minneapolis for the possession of one ounce of cocaine.  555 N.W.2dat 17.  This court concluded that the search-warrant application for the defendant’s residence was not supported by probable cause because there was no nexus between the possession of one ounce of cocaine and the defendant’s residence approximately 75 to 85 miles away.  Id. at 18-19.  But the affidavit in Kahn provided significantly fewer facts than the affidavit in this case.  The Kahn affidavit merely mentioned that the defendant was arrested for possession of cocaine, that the affiant knew from training and experience that those in possession of an ounce of cocaine normally sell the drug in smaller quantities, and that the defendant lived in Elgin.  See id. at 17. 

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. 

Affirmed.