Opinion
No. CX-99-1914.
Filed July 3, 2000.
Appeal from the District Court, Anoka County, File No. K0-98-9579.
Mike Hatch, Attorney General, and
Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, (for respondent)
Richard A. Enga, Taylor Law Firm, P.A., (for appellant)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Poritsky, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Steven Applen challenges his conviction for possession of illegal drugs, arguing that the affidavit upon which the warrant to search his residence was issued failed to establish probable cause. We affirm.
FACTS
Detective Robert Trusler, a Coon Rapids police officer assigned to a regional drug task force, applied for a warrant to search Steven Applen's residence. In his supporting affidavit, Trusler described his specialized training and experience in narcotics investigations and then recited the facts offered as probable cause for the issuance of the warrant.
Trusler stated that he received information from another narcotics agent that Christine Scander had been purchasing boiling flasks and a large quantity of iodine crystals. These items are used in the manufacture of methamphetamine. Trusler verified the information by obtaining copies of Scander's purchase orders from the seller of the goods.
After learning that Scander was about to obtain another boiling flask, Trusler and other agents set up a surveillance at a bio-medical supply store and observed her pick up the flask. Officers then followed her to a drug store where she bought several containers of pseudoephedrine. She then went to a storage facility and to a locker registered in her name and the names of Steven Applen and Tony Scander. Two years earlier officers investigated Applen and searched his residence at 936 88th Lane N.W., where they found controlled substances.
About three weeks after the first surveillance, the agents conducted another surveillance of Scander. They had arranged to be notified by the seller of the iodine crystals when Scander placed another order. After Scander placed an order, the clerk notified the police and then called Scander to tell her the order was ready. Scander told the clerk that she would "check with the guy" to make sure the quantity the clerk had on hand was enough.
Scander then purchased a pound of iodine crystals and drove to Applen's residence at 936 88th Lane N.W. She went into the house, stayed five minutes, and left. She then drove to Bonnie Weishalla's residence a block away. Scander had previously used Weishalla's credit card to buy a boiling flask.
While the agents watched Applen's residence, they saw a car drive up and leave shortly afterward. There were two males in the car. The men drove to a surplus store where one of them bought several glass pipettes. They then drove to a hydraulics store where they bought a cylinder of propane gas. Pipettes and propane are commonly used in the manufacture of methamphetamine. The men then returned directly to Applen's residence.
Trusler stated in his affidavit that Scander's purchases of a boiling flask, iodine crystals, and pseudoephedrine; her visit to Applen's residence; the unidentified males' purchase of glass pipettes and propane; and their visit to Applen's residence, all led him to believe that there were present at the residence the ingredients and equipment necessary for making methamphetamine.
The district court issued a search warrant for Applen's residence. The police searched the residence and found marijuana and methamphetamine.
Applen contends that the narcotics seized at his residence should have been suppressed because there was no probable cause for the search warrant.
DECISION
Both the United States and Minnesota Constitutions provide that no warrant shall issue absent a showing of probable cause. See U.S. Const. amend. IV; Minn. Const. art. I, § 10, Minn. Stat. § 626.08 (1998) ("[a] search warrant cannot be issued but upon probable cause"). Probable cause exists when there is a sufficient nexus between the alleged criminal activity, the place of the activity, and the persons at the place of the activity. State v. Hinkel , 365 N.W.2d 774, 776 (Minn. 1985).
A magistrate's finding of probable cause is accorded great deference. State v. Wiley , 366 N.W.2d 265, 268 (Minn. 1985 ) . Our task on appeal is to "ensure that the issuing judge had a `substantial basis' for concluding that probable cause existed." State v. Souto , 578 N.W.2d 744, 747 (Minn. 1998) (quoting State v. Zanter , 535 N.W.2d 624, 633 (Minn. 1995)). To determine whether the issuing court had a substantial basis for finding probable cause, we apply a totality-of-the-circumstances test. Wiley , 366 N.W.2d at 268.
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, 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. (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)).
Applen argues that, although the affidavit details the activities of Scander and two unidentified males, it does not show that Applen did anything at all. He contends further that the affidavit does not show that anyone brought any equipment or chemicals for drug manufacture into Applen's residence.
The evidence here was circumstantial. But the links of people and goods to Applen's residence supported a reasonable inference that methamphetamine was being manufactured there.
The police knew that Applen's residence had been searched previously and illegal drugs had been found there. Even though charges against Applen from that incident had been dismissed, it was proper for the police to consider the fact that illegal drugs had previously been found at the same residence that came under suspicion here. See State v. Munoz , 385 N.W.2d 373, 376 (Minn.App. 1986) (finding that police officer's knowledge of complaints regarding appellant's sale of drugs and previous use of methamphetamine was relevant in determining probable cause).
Christine Scander bought chemicals and equipment commonly used in making methamphetamine. On the day of one of the purchases, she told the seller's clerk that she had to "check with the guy" to ensure that the quantity was sufficient. She made the purchase, drove directly to Applen's residence, stayed briefly, and left. She was also linked to Applen as a co-renter of a storage locker with him.
On the same day of Scander's purchase and visit to Applen's residence, two men drove to the residence, stayed briefly, left, bought equipment used to make methamphetamine, and then returned to Applen's residence.
Although no officer actually saw anyone bring chemicals or equipment into Applen's residence, the link of Applen's visitors to chemicals and drug paraphernalia and their respective visits after their purchases support a reasonable inference that they surreptitiously brought onto Applen's premises items for the manufacture of methamphetamine.
Considering the totality of the circumstances, including reasonable inferences to be drawn from the facts, there was sufficient evidence to establish probable cause for the issuance of the search warrant. See State v. Lieberg , 553 N.W.2d 51, 57 (Minn.App. 1996) (evidence that rises above mere suspicion can sustain determination of probable cause even though it might not justify a conviction).