State of Minnesota, Respondent, vs. Douglas Jon Kipp, Appellant.

State of Minnesota, Respondent, vs. Douglas Jon Kipp, Appellant. A06-430, Court of Appeals Unpublished, April 3, 2007.

This opinion will be unpublished and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

A06-430

 

 

State of Minnesota,

Respondent,

 

vs.

 

Douglas Jon Kipp,

Appellant.

 

 

Filed April 3, 2007

Affirmed

Lansing, Judge

 

 

Traverse County District Court

File No. K1-04-117

 

 

Lori Swanson, Attorney General, Daniel Vlieger, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Matthew Franzese, Traverse County Attorney, 218 Third Avenue East, Suite 102, Alexandria, MN 56308 (for respondent)

 

Kenneth M. Bottema, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Douglas Kipp appeals from the district court's determination, on stipulated facts, that he is guilty of first-degree controlled-substance crime.  Kipp argues that the search-warrant application that produced the incriminating evidence contained only minimal information linking his farm to methamphetamine manufacturing and, therefore, failed to establish an adequate nexus.  Because the district court had a substantial basis for finding by a fair probability that methamphetamine or evidence of manufacturing would be found at Kipp's farm, we conclude that the search warrant was valid and affirm the conviction. 

F A C T S

            A Traverse County deputy sheriff applied for a warrant to search Douglas Kipp's Graceville farm in August 2004.  The district court granted the warrant and officers searched Kipp's farm the next day.  During the search, the officers found evidence that Kipp was manufacturing methamphetamine.

            Kipp was charged with multiple counts of controlled-substance crime.  He moved to suppress the evidence found at his farm, arguing that the warrant application did not establish probable cause to search.  The district court denied Kipp's motion and, following a court trial on stipulated evidence, Kipp was convicted of four counts of first-degree controlled-substance crime involving the sale of methamphetamine and sentenced on two counts.  On appeal, Kipp argues that the warrant application did not establish probable cause for the search and that the evidence found at his farm should have been suppressed.

D E C I S I O N

            The state and federal constitutions protect against unreasonable searches and seizures.  U.S. Const. amends. IV, XIV; Minn. Const. art. I, § 10.  A search or seizure is unreasonable unless it is authorized by a valid search warrant or is within an exception to the warrant requirement.  State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005).  A search warrant is validly issued only if it is based on facts that establish probable cause to search.  State v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995).  Probable cause to search exists when, under the totality of the circumstances, "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) (quotation omitted).  Kipp argues that the warrant issued for the search of his farm was invalid because it failed to establish probable cause. 

            To encourage police to obtain warrants, we give great deference to a district court's probable-cause determination.  State v. Bourke, 718 N.W.2d 922, 927-28 (Minn. 2006).  On review, we determine "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). 

            The warrant application in this case contains extensive evidence linking Kipp to the manufacture of methamphetamine.  But evidence that Kipp manufactured methamphetamine does not, by itself, provide probable cause to search Kipp's farm.  See United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir. 1993) (finding defendant's drug dealing did not provide probable cause to search defendant's home).  To obtain a valid search warrant, the state must establish a fair probability that "evidence of a crime will be found in a particular place."  Carter, 697 N.W.2d at 204-05 (emphasis added).  The warrant application must establish "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."  State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998).

            The warrant application for Kipp's farm also contains facts that connect methamphetamine and evidence of methamphetamine manufacturing to the farm's location.  First, the affidavit attached to the warrant application stated that police "found a large amount of empty ephedrine containers and empty blister packs" littered "near the area of Kipp's farm."  The litter was within two miles of Kipp's home.  Second, the affidavit indicates that police observed a large amount of vehicle traffic, involving vehicles from out of the area, at Kipp's farm.  Third, the affidavit incorporates by reference an attached affidavit from another case.  According to the attachment, the police received information from a known informant that a person linked to Kipp manufactured methamphetamine at the farm of a person named "Doug."  These facts all support finding a nexus between the manufacturing of methamphetamine and Kipp's farm.

            In addition, Kipp's involvement in methamphetamine manufacturing is relevant to the probable-cause determination for the issuance of the warrant.  The police had received reports that Kipp was manufacturing methamphetamine and had also seen Kipp at a local store purchasing materials used in the manufacture of methamphetamine.  Probable cause is determined under the totality of the circumstances.  Carter, 697 N.W.2d at 205.  As a result, Kipp's involvement in drug manufacturing provides further support for the conclusion that manufacturing was taking place at Kipp's farm.

            Finally, the evidence supporting the probable-cause determination was not stale.  Evidence that is stale or too old will not support a finding of probable cause.  Souto, 578 N.W.2d at 750.  Although the warrant application was submitted more than a year after the police collected some of the evidence, the application indicated that Kipp had ongoing involvement in the manufacture of methamphetamine.  A suspect's ongoing involvement in criminal activity will support a finding that evidence is not stale.  See id. (stating that "when an activity is of an ongoing, protracted nature, the passage of time is less significant").  Because of Kipp's ongoing involvement in manufacturing methamphetamine, the evidence could still be used to establish probable cause to search.

            When a warrant is issued, our review is limited to determining whether a substantial basis exists for concluding by a fair probability that contraband or evidence of a crime would be found in the place to be searched.  Although the direct links to Kipp's farm are limited, we conclude that the district court had a substantial basis for finding a fair probability, under the totality of the circumstances, that methamphetamine or evidence of manufacturing would be found at Kipp's farm.  Consequently, the search was reasonable and the district court did not err in denying Kipp's motion to suppress the evidence. 

            Affirmed.