State of Minnesota, Respondent, vs. Travis Leif Bjergum, Appellant.

State of Minnesota, Respondent, vs. Travis Leif Bjergum, Appellant. A06-139, Court of Appeals Unpublished, May 1, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-139

 

State of Minnesota,

Respondent,

 

vs.

 

Travis Leif Bjergum,

Appellant.

 

Filed May 1, 2007

Reversed

Kalitowski, Judge

 

Lake County District Court

File No. KX-03-445

 

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

 

Russell Conrow, Lake County Attorney, Courthouse, 601 Third Avenue, Two Harbors, MN 55616 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Travis Leif Bjergum challenges his conviction of second-degree possession of a controlled substance, arguing that:  (1) the district court erred by failing to suppress evidence obtained during a search executed pursuant to a search warrant because the warrant was not supported by probable cause; and (2) the state committed prejudicial prosecutorial misconduct by introducing suppressed statements and eliciting testimony regarding appellant's invocation of his right to counsel and right to remain silent.  Appellant also argues that the district court erred in ordering him to pay a $200 fee for the appointment of a public defender pursuant to Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003).  We reverse appellant's conviction of second-degree possession of a controlled substance and the order requiring appellant to pay the public-defender fee.

D E C I S I O N

            Appellant was arrested following a traffic stop of a car containing appellant and two others.  After finding approximately 2.2 grams of methamphetamine (meth) in the car, police obtained a warrant to search the home where appellant resided with his mother.  During the search, police found 8.5 grams of meth, which resulted in appellant's conviction of second-degree possession of a controlled substance.

            Appellant offers two theories to support reversal of his conviction of second-degree controlled-substance possession.  Each provides independent justification for reversal.

I.

            Appellant argues that the district court erred by granting the search warrant for his residence because the affidavit in support of the warrant did not provide probable cause. We agree. 

A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.  See U.S. Const. amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2002); see also State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999).  We afford "great deference" to the district court's finding of probable cause.  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  Our review is limited to ensuring "that the issuing judge had a ‘substantial basis' for concluding that probable cause existed."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  Our review is limited to information contained in the affidavit in support of the warrant presented to the district court.  Novak v. State, 349 N.W.2d 830, 831 (Minn. 1984).

To determine whether probable cause exists:

The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . 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 Gates, 462 U.S. at 238, 103 S. Ct. at 2332).  A court evaluates probable cause to issue a search warrant under a "totality of the circumstances" test.  Id. "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."  Souto, 578 N.W.2d at 749.

In State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996), we determined that a search warrant was not supported by probable cause where the affidavit in support of the warrant did not "provide sufficient facts to infer a reasonable nexus linking the drug possession in Minneapolis to the [defendant's] home in Elgin."  In Kahn, the affidavit recited that the defendant was arrested for possession of one ounce of cocaine in Minneapolis; the affiant stated that an ounce of cocaine is considered more than that for personal use, indicating a likelihood that the possessor sells the drug in smaller quantities; and that the defendant resided at the residence to be searched.  Id.

            The Kahn court refused to adopt caselaw from other jurisdictions that "have not required facts specifically linking drug activity to a dealer's residence because the ‘nexus,' or connection, can be made merely on the basis of the affiant-officers' experience that drug dealers ordinarily keep their supply, records, and monetary profits at home."  Id.  The Kahn court held that the affidavit in support of the search warrant was not supported by probable cause and noted that "Minnesota requires the state to provide more facts than were provided here in order to link drug activity to an individual's home and to support issuance of a warrant."  Id. (citing State v. Cavegn, 356 N.W.2d 671, 674 (Minn. 1984) (finding object-place nexus where the affidavit contained information that a sale of drugs actually occurred at the alleged dealer's home); State v. White, 332 N.W.2d 910, 911 (Minn. 1983) (finding sufficient nexus for a search warrant where a large quantity of harvested marijuana was found partially concealed on defendant's land prior to the issuance of the warrant and a search of another home revealed drugs in containers bearing defendant's first name); State v. Braasch, 316 N.W.2d 577, 578-79 (Minn. 1982) (finding sufficient nexus where the affidavit indicated that defendant was seen entering her residence shortly after picking up a package known to contain hashish); State v. Yaritz, 287 N.W.2d 13, 15 (Minn. 1979) (finding a sufficient nexus where defendant was observed going directly from his house to the location of a controlled sale)).

Here, the affidavit in support of the search warrant does not provide any nexus between the alleged crime and appellant's residence.  The affidavit's only mention of appellant's residence is the statement that "[d]uring the interview with [appellant], deputies learned that he has been living at his mother's residence in Knife River."  The affidavit states that nine baggies of a crystal-like substance were found in appellant's car near where he was sitting and that appellant lived at his mother's home.  The affidavit contains no allegations or facts linking the drugs in the vehicle to appellant's residence.  Following Kahn, we decline to infer that more meth would be found at appellant's residence simply because the affiant found nine baggies of meth in appellant's car.

We conclude that because the affidavit fails to allege any connection between appellant's residence and drug activity, the district court erred by issuing the search warrant.  Because the 8.5 grams of meth found in appellant's residence are the fruits of an improper search warrant, we reverse appellant's conviction of second-degree possession of a controlled substance.

II.

Appellant argues that the state committed prejudicial prosecutorial misconduct by repeatedly referring to suppressed statements.  We agree.  The state's repeated references to appellant's in-custody statements, which had been suppressed by the district court, amount to prejudicial prosecutorial misconduct requiring reversal.

The police interrogated appellant three times following his arrest and the district court suppressed his statements during the second and third interrogations.  The state relied on appellant's statements from the suppressed third interrogation during its opening statement as the basis for its theory of the case and further evoked testimony regarding the suppressed statements.

The state's introduction of suppressed evidence is prosecutorial misconduct.  In re Welfare of J.P.L., 359 N.W.2d 622, 625 (Minn. App. 1984).  When reviewing a claim of prosecutorial misconduct, we first examine the challenged conduct to determine whether any misconduct occurred.  State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995).  If we conclude misconduct occurred, reversal of the guilty verdict will be granted only if the misconduct was so serious and prejudicial in light of the entire trial that it impaired the defendant's right to a fair trial.  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  Where the misconduct is "unusually serious," we reverse unless the error can be deemed harmless beyond a reasonable doubt.  Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999), review denied (Minn. Mar. 28, 2000). 

During the third interrogation, which was suppressed by the district court, appellant admitted that (1) he accompanied co-defendant Michael Martin to pick up a large quantity of meth; (2) he accompanied Martin to Martin's sister's house where Martin weighed the meth; and (3) he accompanied Martin to his mother's house where he allowed Martin to store approximately $1,400 worth of meth in a safe.

The theme of the prosecutor's opening statement paralleled the facts recounted by appellant in the suppressed statement and emphasized that appellant himself admitted these facts:

[This case] started when [appellant] and a guy named Michael Martin got together and drove in [appellant's] car down to the cities. . . . They picked up methamphetamine.  A large quantity of methamphetamine. . . . [T]hey were talking about how much it . . . would be worth, approximately $1,400.  They were gonna bring it back to Lake County, and they do. . .. They go to an apartment over here in Two Harbors.  Michael Martin separates the methamphetamine, puts it in little bags. . . .

 

They go to [appellant's] house.  [Appellant] has a safe. . . . They open up the safe, put in the meth . . . and place the safe in [appellant's] motor home. . . .

 

. . . .

 

Now, how do we know all this?  ‘Cause no deputy was there following them.  [Appellant] told us all this.  He made a statement to the police officers.  He told them this.  That's the story he told them.    

 

(emphasis added).

Although this statement is a clear violation of the district court's suppression order, appellant failed to make an objection to the district court.  Generally, a defendant who fails to object to the prosecutorial misconduct at trial forfeits his right to have the issue considered on appeal.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  In that situation, this court will grant relief only if the misconduct was unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

            Here, the misconduct was unduly prejudicial.  The basis of the state's opening argument included not only the facts obtained through the suppressed interrogation, but also that appellant had admitted these facts.  The suppressed statement that appellant had knowledge that Martin put the meth in the safe is especially prejudicial because it contradicts appellant's trial testimony.

            Respondent argues that introduction of the suppressed statements was not reversible error because the district court erred in suppressing the statements.  But respondent never challenged the district court's suppression order and it is improper to raise this issue for the first time on appeal.  See State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992) (stating that the fact that "a prosecutor disagrees with a trial court's refusal to suppress evidence . . . obviously affords no basis for violating the ruling").

            We conclude that the state committed prejudicial prosecutorial misconduct and reverse the district court's judgment of conviction of second-degree possession of a controlled substance.

III.

            Finally, appellant argues that his constitutional right to counsel was violated by the district court's order requiring him to pay a $200 fee for public-defender services.  We agree.

            The district court imposed a $200 co-payment on appellant for the services of the public defender pursuant to Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003).  The Minnesota Supreme Court declared this statute unconstitutional in State v. Tennin, 674 N.W.2d. 403, 410-11 (Minn. 2004).

Here, both appellant and respondent agree that the $200 imposed by the court was unconstitutional, but respondent argues that the issue of payment should be remanded to the district court to determine appellant's ability to pay.  We disagree.  The district court already determined that appellant was not working, had no assets, was a student, and was being supported by his mother when he was arrested.  The record contains adequate findings by the district court to support the conclusion that appellant was indigent.

            Reversed.