This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1753
A06-1766

 

State of Minnesota,
Appellant (A06-1753),
Respondent (A06-1766),

vs.

Roberto Jimenez Ybarra,
Respondent (A06-1753),
Appellant (A06-1766).

 

Filed June 12, 2007

Reversed

Stoneburner, Judge

 

Clay County District Court

File No. K6051335

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Kenneth J. Kohler, Clay County Attorney, Heidi M. F. Davies, Assistant County Attorney, 807 Eleventh Street North, Moorhead, MN 56560 (for the State of Minnesota)

 

John M. Stuart, Minnesota Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for Roberto Jimenez Ybarra)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In this consolidated appeal, the defendant challenges his conviction of felon in possession of a firearm, and the state challenges the downward sentencing departure.  Because the warrant application did not provide probable cause to search the defendant’s residence, the district court erred in denying his motion to suppress evidence of the firearm.  Because suppression of the evidence requires reversal of appellant’s conviction, we need not address the state’s sentencing appeal; however, in the interest of judicial economy, we review the issue and conclude that the district court abused its discretion in granting a downward sentencing departure. 

FACTS

 

            Detective Brad Stuvland applied for a search warrant to search apartment #2 of an apartment building located at 1103 19th Street South in Moorhead (the apartment building).  Appellant Roberto Jimenez Ybarra lived in apartment #2 but was not the target of any investigation.

            Detective Stuvland’s affidavit supporting the application contained the following information purporting to support the search of apartment #2.  Detective Stuvland, an experienced police officer assigned to drug investigations, received information from two confidential reliable informants (CRIs) that Erik Madrid, a Hispanic male with a history of drug-related convictions, was selling drugs from his vehicle near Romkey Park on 19th Street South in Moorhead.  CRI #1 reported that he knew an individual who lived on 19th Street South; this individual told CRI #1 that he purchases marijuana from Madrid, and CRI #1 had seen Madrid visit the individual at the individual’s residence within the last four weeks.  While investigating CRI #1’s information, Detective Stuvland learned that Madrid’s vehicle was registered to his wife whose birth-given surname is Ybarra.       Detective Stuvland learned from CRI #2 that approximately two weeks before the warrant application, Madrid told CRI #2 that he had a pound of marijuana to “unload.”  CRI #2 also reported that Madrid was going to Mexico to pick up a large quantity of drugs to bring back to the Fargo-Moorhead area.  U.S. Immigration and Customs Enforcement verified that Madrid had crossed into Mexico from Texas, near the New Mexico border, ten days prior to the warrant application. 

            Two days before the warrant application, CRI #1 informed Detective Stuvland that he had seen Madrid on 19th Street South near Romkey Park twice that day.  The first time, Madrid was sitting in his parked vehicle, as he had done in the past while waiting to make what was expected to be a drug-money exchange with someone in another vehicle.  The second time, Madrid was parked at the apartment building. 

            A “Source of Information” (SOI), who had previously provided reliable information to Moorhead police, confirmed that Madrid was involved in drug sales and reported that Madrid frequently visited the apartment building.  The SOI also reported that Adrianne Ybarra, who, according to the SOI, “obtains quantities of methamphetamine from an individual that transports them here from California[,] . . . has moved into or is going to move into” the apartment building.  The SOI said that Adrianne Ybarra is related to Madrid’s wife, Jennifer Ybarra-Madrid.  Detective Stuvland checked public service records and observed that Raquel Ybarra, also related to Jennifer Ybarra-Madrid, lives at the apartment building in apartment #2. 

            The day before Detective Stuvland applied for the warrant to search apartment #2, he obtained a warrant to search Madrid and his vehicle.  On the day of the application for the warrant to search apartment #2, the SOI informed a different detective that about 30 minutes before the conversation, he had observed Madrid and another male “carrying three bags” into apartment #2.  About 5 minutes after the SOI relayed this information, Detective Stuvland saw Madrid leaving the apartment building in his vehicle.  Detective Stuvland stopped Madrid and recovered 5.1 grams of a substance that field-tested positive for cocaine.  The detective then had officers secure apartment #2.  Residents of apartment #2 confirmed that Madrid had recently been at the apartment.  Detective Stuvland stated that, based on his training and experience, “it is common for individuals that are involved in the sale of drugs to travel to Mexico to obtain large quantities of drugs,” and “to store their drugs at residences other than their own.” 

            Based on this information, a search warrant was issued for apartment #2, authorizing a search for “[c]ontrolled substances to include but not limited [to] cocaine, methamphetamine and marijuana,” and other drug-related items listed in an attached form.  During the execution of the warrant, police found a loaded handgun under a couch cushion in the living room and 81.7 grams of marijuana packaged in three zip-lock baggies in the bedroom.  Ybarra, who is ineligible to possess a firearm because of prior felony convictions, admitted that the gun and drugs belonged to him. 

            Ybarra was charged with a controlled-substance crime and felon in possession of a firearm.  The district court rejected Ybarra’s argument that the search of his home was unconstitutional and denied Ybarra’s motion to suppress the evidence seized.  The state dismissed the controlled-substance charge in exchange for Ybarra’s agreement to waive a court trial on the felon-in-possession charge.  The case was submitted on stipulated facts under State v. Lothenbach,296 N.W.2d 854 (Minn. 1980), and Ybarra was convicted. 

            At sentencing, the district court invited argument from the parties regarding the appropriate sentence.  The state argued for the presumptive guideline sentence of 60 months in prison, as recommended in the presentence investigation report.  Ybarra requested a downward durational departure to 30 months.  Noting that none of Ybarra’s prior convictions involved firearms or acts of violence, the district court sentenced Ybarra to 30 months, stating, “I do believe that the presumptive 60-month sentence is unduly harsh given the nature of the criminal history and the current offense, and so I am going to depart downward durationally.”  Both parties appealed, and the appeals were consolidated.

D E C I S I O N

 

I.

 

            Ybarra argues that the warrant to search his apartment was not supported by probable cause because the application failed to establish a connection between an alleged crime and apartment #2.  Both the state and federal constitutions protect against unreasonable searches and seizures and require that warrants be supported by probable cause.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Probable cause exists when “there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’”  State v. Carter, 697 N.W.2d 199, 204-05 (Minn. 2005) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  On review, appellate courts consider “whether the issuing judge had a substantial basis for concluding that probable cause existed.”  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  We look to the “totality of the circumstances” and not to each isolated component of the supporting affidavit.  State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996) (quotation omitted).  We do not consider what information the police possessed when the warrant was applied for, but rather what information was presented in the affidavit.  Id. 

            Minnesota courts have “historically required a direct connection, or nexus, between the alleged crime and the particular place to be searched.”  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  In determining whether such a nexus exists, “[i]nformation linking the crime to the place to be searched and the freshness of the information” are relevant factors.  Id. The issuing judge may “draw common-sense and reasonable inferences from the facts and circumstances” in the affidavit.  State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004) (quotation omitted), review denied (Minn. Apr. 20, 2004). 

            In Souto, the supreme court held that a warrant affidavit failed to establish a nexus between drug activity and Souto’s residence.  578 N.W.2d at 749.  The officer’s affidavit in that case established that a package containing drugs had been mailed from California to Souto at a prior residence, although Souto never received the package; that Souto had used drugs at parties that occurred more than six months prior to execution of the warrant; that there were numerous telephone calls between Souto’s residence and the residence of a known drug supplier within the year before the warrant was executed; and that the affiant knew from informants and law enforcement officers that Souto was involved in wide-scale possession and/or distribution of drugs.  Id. at 748.  The supreme court noted that the affidavit “did not indicate that Souto ever arranged drug deals, sold, or distributed drugs, much less that she performed such acts from her home.”  Id.  The supreme court cited an opinion from Kansas, State v. Longbine, 257 Kan. 713, 896 P.2d 367 (1995), which held that telephone calls between an individual and a suspected drug dealer, together with the affiant’s statement that a suspected drug dealer was believed to store marijuana at the residences of his associates, did not provide a substantial basis for believing that drugs would be found at the defendant’s residence.  Id. at 749. 

            Similarly, we conclude that knowledge that one of Madrid’s wife’s relatives lived in apartment #2 and that Madrid had recently carried “three bags” into apartment #2 does not give rise to “a fair probability” that drugs or drug-related items would be located in apartment #2.  Id. at 747 (quotation omitted).  The affidavit contains no description of the bags carried into apartment #2 and no basis for suspecting that the bags contained drugs.  The relative who lived in apartment #2 was not alleged to have been connected with drugs.  The affidavit did not contain any link between the person in the apartment building who said he got marijuana from Madrid and apartment #2.  Although the district court relied on the information that Madrid had recently brought drugs to the area from Mexico, that trip occurred approximately ten days before the warrant was executed, and there was no information linking the bags that were carried into apartment #2 with Madrid’s trip to Mexico. 

            The state argues that the totality of the circumstances described in the warrant application support a finding of probable cause that Madrid kept drugs in apartment #2.  The totality-of-the-circumstances approach permits a finding of probable cause based on several factors that, standing alone, would not provide a substantial basis for supporting a search warrant.  Carter, 697 N.W.2d at 206.  But even when the facts in this affidavit are considered as a whole, there is still no nexus between Madrid’s drug activities and apartment #2.  Because the facts in the warrant affidavit failed to establish a nexus between apartment #2 and Madrid’s drug activity, we conclude that the warrant was not supported by probable cause and that the district court erred by denying Ybarra’s motion

to suppress the gun.[1]  Because Ybarra’s conviction was not possible without evidence of the gun, we reverse the conviction.

II.

 

            Because we are reversing Ybarra’s conviction, we need not reach the state’s sentencing appeal.  But in the interest of judicial economy, we will do so. 

            A trial court has broad discretion to depart from the presumptive sentence under the sentencing guidelines.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  “We review a sentencing court’s departure from the sentencing guidelines for abuse of discretion.”  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  The state argues that the district court abused its discretion by imposing a downward durational departure of 30 months at sentencing because (1) the district court failed to give notice that it was considering a downward durational departure, and (2) the district court failed to articulate substantial and compelling reasons to justify departure from the mandatory minimum sentence. 

            The rule governing sentencing proceedings provides that “[i]f the facts ascertained at the time of a plea or through trial cause the judge to consider a mitigated departure from the sentencing guidelines appropriate, the court shall advise counsel of such consideration.”  Minn. R. Crim. P. 27.03, subd. 1(A)(4).  The rule also provides, “[i]f departure from the sentencing guidelines appears appropriate, and the court has not previously notified the parties . . . that the court is considering departure, the court shall forward notification of such consideration at the time the sentencing worksheet and any presentence investigation report is forwarded.”  Id., subd. 1(C). 

            In State v. Bock, this court held that the district court’s failure to notify defendant of its intention to consider an upward durational departure was not prejudicial to the defendant because the state had moved for an upward departure before the sentencing hearing, and the defendant did not object to the lack of notice at the sentencing hearing.  490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).  In State v. Brennan, again addressing a defendant’s challenge to an upward durational departure, this court held that the failure to give notice was reversible error where the defendant did not have notice of the court’s consideration of an upward departure until the sentencing hearing and where he objected to the lack of notice.  674 N.W.2d at 208. 

            In this case, the district court did not notify the parties that it was considering a sentencing departure until the sentencing hearing.  When the district court invited argument on the sentencing recommendation contained in the PSI, it does not appear that the parties were aware that the district court was considering a downward departure or that the court had considered such a departure prior to hearing the arguments of the parties.  Despite our statement in Brennan that, “[t]he rules of criminal procedure are clear; the court must give notice when considering a departure from the sentencing guidelines,” we conclude that because the state failed to object to the lack of notice, the error is not reversible in this case.  Id.

            The state’s argument that the district court failed to articulate substantial and compelling reasons to justify the departure, however, has merit.  Sentencing courts should apply presumptive sentences “with a high degree of regularity.”  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984) (quotation omitted).  Departures from the sentencing guidelines are permitted “only when the case involves substantial and compelling circumstances.”  State v. Martinson, 671 N.W.2d 887, 891 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).  The sentencing court must state the reasons for departure on the record.  Geller, 665 N.W.2d at 516.  And if reasons are stated on the record, appellate courts “will examine the record to determine if the reasons given justify the departure.”  Id.  Under Minn. Stat. § 609.11, subd. 5(b) (2004), the presumptive sentence for Ybarra’s conviction is not less than five years.

            The district court explained its decision to impose a downward departure as follows:

      Reviewing the PSI report and Mr. Ybarra’s prior criminal history, which consists of wrongfully obtaining assistance in 1996, that’s the felony offense; controlled substance also in 1996, and a misdemeanor – gross misdemeanor DWI in 2003, none of these crimes involved a firearm or, in fact, none of them were acts of violence. I do believe that the presumptive 60-month sentence is unduly harsh given the nature of the criminal history and the current offense, and so I am going to depart downward durationally. 

 

The district court stated in its written departure report that it departed because Ybarra admitted to owning the gun, none of his prior felony convictions involved a crime of violence or a weapon, the weapon was not being used or brandished but was concealed in the home, and “[a] sixty month sentence is unduly harsh under the circumstances.” 

            “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The reasons stated by the district court are not so “substantial and compelling” as to justify the downward departure to 30 months, half of the presumptive sentence.  The presumptive sentence does not require a showing of prior violent crimes or that the weapon was “brandished,” and, although Ybarra’s gun was concealed, it was loaded.  We therefore conclude that the district court abused its discretion by sentencing Ybarra to a downward departure without sufficient mitigating factors to support the departure.  In the event that our determination on the warrant issue is overturned, Ybarra’s sentence should be vacated and the matter remanded to the district court for imposition of the presumptive sentence.

            Reversed.