                           This opinion will be unpublished and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
                                      A15-1651

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                   Eric Jason Yankovec,
                                         Appellant.

                                 Filed November 7, 2016
                                 Reversed and remanded
                                     Stauber, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-36992

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant, who was convicted of three firearm offenses following the search of his

storage unit, argues that the warrant authorizing the search was issued without probable
cause. Because the contents of the warrant application did not establish a sufficient

nexus between earlier criminal activity involving appellant at another location and

appellant’s storage unit, the warrant to search the storage unit was issued without

probable cause. We therefore reverse and remand.

                                         FACTS

       In late October 2013, Richfield police detective Bill Stanger received a tip from a

confidential informant (CI) that appellant Eric Jason Yankovec was “dealing large

amounts of Methamphetamines from his girlfriend’s apartment” in Maple Plain. The CI

provided descriptions of Yankovec and his girlfriend, D.R., and their vehicles; the police

verified this information. After investigating and discovering that both Yankovec1 and

D.R. had lengthy criminal histories, Stanger and another officer went to D.R.’s apartment

with a certified drug-detection dog. The front door of the apartment building was

unsecured, and each apartment opened to a common hallway. The drug-detection dog

walked past several of the apartments but alerted only at D.R.’s apartment, #301.

       Based on this and other supporting information that included Stanger’s law-

enforcement experience, Stanger applied for a warrant to search D.R.’s apartment, which

the district court issued. During the November 5, 2013 search, Richfield police

discovered substances that field-tested positive for narcotics and information that

Yankovec was renting a storage unit in Bloomington, which police also verified.



1
 The Stanger affidavit states that Yankovec was “arrested numerous times for various
offenses including: Theft, Forgery, Burglary, Criminal Damage to Property, 5th Degree
Drugs, 3rd Degree Drugs and Prohibited Person in Possession of a Firearm.”

                                             2
Reasoning that “it is common for drug dealers to store their drugs and/or illegal items in

storage units to avoid police detection” and that “people who are involved in the

distributions of narcotics often times use firearms to protect their narcotics and proceeds

derived from the sale of narcotics,” Stanger quickly sought a second warrant on

November 5 to authorize the search of the storage unit, which the district court again

issued. The search of the storage unit yielded a handgun, two BB guns, and ammunition

for the BB guns.

         Because Yankovec is a convicted felon, he was charged with three counts of being

a prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713,

subds. 1(2), 2(b) (2012). Yankovec moved pretrial to suppress the evidence obtained

during the search of the storage unit, arguing that use of the drug-detection dog in the

common hallway of the apartment was an unlawful search. The district court denied the

motion, ruling that Yankovec failed to meet his burden to prove that the common area of

the apartment building would be subject to Fourth Amendment privacy protections and

that police had reasonable, articulable suspicion of criminal activity to permit the dog to

sniff for narcotics.2 The district court also ruled that the warrant for the second search

was supported by probable cause. Following a jury trial, Yankovec was convicted of the

three charged firearm offenses, and the district court imposed a 60-month sentence as

required by law.




2
    Yankovec does not challenge on appeal the use of the drug-detection dog.

                                              3
       Yankovic appeals, arguing that his convictions should be reversed because

probable cause was lacking to support the issuance of the second search warrant

authorizing the search of his storage unit.

                                      DECISION

       Yankovec argues that his convictions should be reversed because the district court

erroneously concluded that the second warrant authorizing the search of his storage unit

was supported by probable cause. The Fourth Amendment of the United States

Constitution and article I, section 10 of the Minnesota Constitution protects individuals

from unreasonable searches and seizures. U.S. Const. amend IV; Minn. Const. art. I,

§ 10. “When examining whether a search was supported by probable cause, the ultimate

question is whether 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).

       In reviewing a determination of probable cause to support a search warrant, an

appellate court reviews the totality of the circumstances, but may examine only the

information presented in the supporting affidavit to determine “whether there were

specific facts to establish a direct connection between the alleged criminal activity and

the site to be searched.” Id. at 205 (quotation omitted). The appellate court’s “only

consideration is whether the judge issuing the warrant had a substantial basis for

concluding that probable cause existed.” State v. Jenkins, 782 N.W.2d 211, 222-23

(Minn. 2010).




                                              4
       As recounted by Detective Stanger in the second search-warrant application,

during the execution of the first search warrant at the apartment, police discovered three

types of suspected narcotics, documents referring to a “CO2 powered air gun,” and rental

documents showing that Yankovec was renting a storage unit in Bloomington. After the

apartment search, Stanger and assisting officers confirmed that Yankovec was renting the

storage unit, and Stanger directed the other officers to keep the storage unit under

observation while he sought the second warrant. Based on Stanger’s training and

experience, he believed that the following items could be found in the storage unit: cell

phones and other communications devices and information, narcotics packaging

equipment, firearms, cash, and price lists and other financial information about sales of

narcotics.

       Yankovec argues that this information was legally insufficient to establish

probable cause to issue a search warrant, relying primarily on Carter and State v. Kahn,

555 N.W.2d 15 (Minn. App. 1996). In Carter, the supreme court found that there was

not probable cause to issue a search warrant when the supporting affidavit alleged only

that a drug-detection dog alerted at a storage unit belonging to a defendant whose name

was recognized by police from a different narcotics investigation, and police had

information that the defendant had been visiting the storage unit once or twice daily. 697

N.W.2d at 203. The supreme court held that “the results of the dog sniff, appellant’s

criminal record, and his alleged frequent visits to the storage facility” did not provide a

substantial basis to conclude that there was a “fair probability” that contraband could be

found in the storage locker because there was not a “direct connection between the


                                              5
factors [supporting a finding of probable cause] and the site to be searched.” Id. at 205-

06 (quotations omitted).

       In Kahn, this court ruled that a search warrant was issued without probable cause

when the defendant was arrested for possession of one ounce of cocaine in Minneapolis

and the warrant affiant sought to search his home, which was located 75 to 85 miles

away. 555 N.W.2d at 18. On those facts, this court concluded that there was an

insufficient nexus “to link [the defendant’s] possession of one ounce of cocaine in

Minneapolis to possible evidence or contraband at his residence.” Id. In Kahn, this court

also rejected the notion that the “nexus” between criminal activity and the place to be

searched could be provided “merely on the basis of affiant-officers’ experience.” Id.

       We conclude that this case is controlled by Carter and Kahn. The totality of the

circumstances do not establish a fair probability that firearms could be found in

Yankovec’s storage unit. Those circumstances include: (1) a tip that Yankovec was

dealing drugs out of his girlfriend’s apartment; (2) items found during execution of a

search warrant at the girlfriend’s apartment that included narcotics, documents showing

the existence of a firearm, and documents showing that Yankovec had rented a storage

unit; and (3) the search-warrant affiant’s expressed belief, based on his experience, that

drugs or firearms could be found in the storage unit. Because we reverse Yankovec’s

convictions, we do not reach other issues raised by appellant.3


3
 We note that during the pendency of this appeal, the Minnesota Supreme Court decided
State v. Haywood, ___ N.W.2d ___, ___ , No. A14-1792, slip op. at 9 (Minn. Oct. 19,
2016), in which the court held that an air-powered BB gun does not constitute a firearm
within the meaning of Minn. Stat. § 609.165 (2014).

                                             6
Reversed and remanded.




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