                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1129

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                   Vi Doan Huynh,
                                    Respondent.

                               Filed January 8, 2015
                      Reversed and remanded; motion granted
                                  Connolly, Judge

                             Anoka County District Court
                               File No. 02-CR-14-869


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Justin M. Collins, Assistant County
Attorney, Anoka, Minnesota (for appellant)

John C. Conard, Law Offices of John C. Conard, Woodbury, Minnesota (for respondent)


      Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and

Minge, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       In this pretrial appeal, the State of Minnesota challenges the district court’s order

suppressing the evidence found in respondent’s home after the execution of a search

warrant.   Because there was probable cause to believe that respondent’s residence

contained evidence of a crime at the time the search warrant was issued, we reverse and

remand.

                                         FACTS

       At 11:51 p.m. on July 17, 2013, a police officer in Anoka County approached a car

that was parked without its lights on and was impeding a lane of traffic. A driver was

seated in the car; he told the officer that he was waiting for a friend, respondent Vi Doan

Huynh, whose house was nearby.

       The officer detected the odor of marijuana and asked the driver about it. The

driver then got out of the car, went to the trunk, opened it, and showed the officer a

plastic container of a marijuana mixture. The driver said he and respondent had just

cooked the mixture, which was still warm. The officer then searched the car and found

another plastic container holding about 480 grams of marijuana candy. The driver told

the officer that, earlier in the day, he picked up respondent, who obtained from his

residence the marijuana needed for the candy that the two of them had made.

       On July 19, 2013, the officer included an account of these events in an affidavit

that he submitted to apply for a search warrant of respondent’s house and curtilage. A

search warrant was issued.


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      On July 23, 2013, the search warrant was executed, and the officer found

marijuana, materials and supplies to make marijuana candy, and what appeared to be a

place to grow marijuana under construction in respondent’s house.        Based on this

evidence, respondent was charged with one count of fifth-degree controlled-substance

crime—possession of marijuana, and one count of attempted fifth-degree controlled-

substance crime—sale of marijuana.

      Respondent moved to suppress the evidence obtained from his house, arguing that:

(1) the search warrant was based on information from an unreliable informant, i.e., the

driver who spoke to the officer, and therefore did not provide probable cause; (2) there

was no nexus between criminal activity and respondent’s house; and (3) the search

warrant was based on stale information. The district court rejected the arguments on the

absence of probable cause for a search warrant and of a nexus between criminal activity

and respondent’s house, but agreed with respondent that the warrant was based on

information that was stale when the warrant was issued and suppressed the evidence.

      Appellant State of Minnesota (the state) challenges the suppression of the

evidence and also moves to strike some items in respondent’s brief.

                                     DECISION

1.    Stale Information

      To appeal a pretrial order suppressing evidence, the state must clearly and

unequivocally show that the order had a critical impact on the state’s ability to

successfully prosecute the defendant and that the order was erroneous. State v. Kim, 398




                                            3
N.W.2d 544, 547 (Minn. 1987). It is undisputed that the order suppressing the marijuana

evidence had a critical impact.

       “To avoid discouraging police from seeking review by a neutral and detached

magistrate, doubtful or marginal cases are resolved in favor of upholding the warrant.”

State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004). The standard of review

appropriate for an appellate court reviewing a district court’s probable cause

determination made upon issuing a search warrant is the deferential, substantial-basis

standard. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). Probable cause to

search exists if the items sought to be seized are “probably connected with certain

criminal activity and may probably be found at the present time.” State v. Janetta, 355

N.W.2d 189, 193 (Minn. App. 1984).

              Under the fourth amendment, probable cause to search cannot
              be established by stale information.
                      ....
              Proof must be of facts so closely related to the time of issue
              of the warrant as to justify a finding of probable cause at that
              time.
                      Appellate courts have refused to set arbitrary time
              limits in obtaining a warrant or to substitute a rigid formula
              for the judge’s informed decision. Instead, the question must
              be determined by the circumstances of each case. In viewing
              the circumstances of each case, magistrates must apply
              practical considerations of everyday life on which reasonable
              and prudent men, not legal technicians, act. The court’s
              approach should be one of flexibility and common sense.
                      The task of the issuing magistrate is simply to make a
              practical, common-sense decision [on] whether, given all the
              circumstances set forth in the affidavit before him, there is a
              fair probability that contraband or evidence of a crime will be
              found in a particular place.

Id. at 193 (quotations and citations omitted).


                                             4
                     In determining whether information is stale, several
              factors must be examined, including . . . whether there is any
              indication of ongoing criminal activity, whether the items
              sought are innocuous or incriminating; whether the property
              sought is easily disposable or transferable, and whether the
              property would have enduring utility.

State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987) (citing Janetta, 355 N.W.2d at

193-94).

       Velishek relied on United States v. Minis, 666 F.2d 134, 140 (5th Cir. 1982)

(ruling that information from a July 20, 1980, conversation about a growing crop of

marijuana was not so stale as to invalidate a search warrant issued on October 18, 1980,

because growing marijuana is a continuous process), to conclude that evidence of

marijuana growing in a place four to six weeks earlier “was not so stale that the

magistrate could not conclude that the marijuana would be present” and reverse an order

suppressing that evidence.     Velishek, 410 N.W.2d at 896-97.         Here, the officer

approached the parked car at 11:51 p.m. on July 17, questioned the driver, went with the

driver to the trunk of the car and saw the warm marijuana mixture, then searched the car

and found the marijuana candy. Since only nine minutes of July 17 remained when the

officer approached the car, some of this activity must have occurred on July 18. On

July 19, the officer provided his affidavit and the warrant was issued. The passage of one

or two days does not result in stale evidence under Velishek.

       Velishek also noted that, “when the acts are protracted and of a continuous nature,

the passage of time is of less significance.” Id. at 896. Here, the driver showed the

officer both a large amount of marijuana candy and a container in which still-warm



                                            5
marijuana candy had just been cooked, indicating that the process was ongoing. The

driver’s car had no equipment for cooking; the cooking had been done very recently; and

the car was parked near a residence the informant identified as belonging to respondent,

who had supplied the marijuana and cooked it with the driver.            There was “a fair

probability” that marijuana, other ingredients, and cooking supplies were in that

residence. See Janetta, 355 N.W.2d at 193.

       The officer’s affidavit stated (1) the driver told the officer that “[respondent] got

the marijuana from inside the residence that they needed for their recipe”; (2) the officer

found evidence of at least two instances of cooking marijuana—the warm mixture and

the completed candy; and (3) the officer believed both marijuana itself and “[p]rimary

containers used to store, preserve, manufacture, cook, or conceal” marijuana would be

found in respondent’s residence. When the warrant was issued, this information was only

one or two days old; it was not stale. The officer’s affidavit indicated that the items

sought to be seized were probably connected with criminal activity and were probably to

be found in respondent’s house at that time. See id. Particularly because even “doubtful

or marginal cases are resolved in favor of upholding the warrant,” Ruoho, 685 N.W.2d at

456, the order suppressing the evidence is reversed and the matter is remanded.

2.     The State’s Motion to Strike

       The state argues that respondent, in a footnote to his brief, states “facts” that have

no support in the record and that have not been litigated or found to exist by a factfinder.

Respondent makes no citation to the record to support the alleged “facts.” The state’s




                                             6
motion to strike is granted.1 See Minn. R. Civ. App. P. 110.01 (limiting the record to

documents filed in the trial court, exhibits, and transcripts).

       Reversed and remanded.




1
  The state also moves to strike documents not part of the record that were mistakenly
included in its addendum and references to those documents in its brief. The state’s
motion to strike is granted in its entirety.


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