                          This opinion will be unpublished and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
                                     A15-0099

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Joshua Nathan Benvie,
                                       Appellant.

                                 Filed January 4, 2016
                                       Affirmed
                                    Johnson, Judge

                               Lake County District Court
                                 File No. 38-CR-14-38

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Laura M. Auron, Lake County Attorney, Two Harbors, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         A Lake County jury found Joshua Nathan Benvie guilty of being an ineligible

person in possession of a firearm and of possessing a short-barreled shotgun. The jury’s
verdict is based on evidence obtained during a search of his residence pursuant to a

search warrant. Benvie argues that the district court erred by denying his motion to

suppress the evidence obtained during the search. We affirm.

                                        FACTS

      On February 3, 2014, Benvie brought a broken chainsaw chain to Larson’s

Outdoor Power Equipment for repair. Keith Larson repaired the chain. The following

day, Benvie again brought a chainsaw chain to Larson’s shop. Larson again performed

the repair and also suggested that Benvie bring the chainsaw to the shop so that Larson

could determine what was causing the chain to break.

      On February 5, 2014, another man, R.L., dropped off the chainsaw at Larson’s

shop for repair. R.L. explained that the chainsaw belonged to Benvie and that he was

bringing the chainsaw to Larson on Benvie’s behalf. While working on the chainsaw,

Larson became suspicious. Larson examined the chainsaw’s serial number, compared it

to his records, and discovered he had sold the chainsaw to G.G. Larson called G.G., who

told Larson that his chainsaw had been stolen. Larson then called the Two Harbors

Police Department to report his discovery.

      Two police officers went to Larson’s shop. When R.L. returned, the officers

arrested him for possession of stolen property and transported him to the police station

for questioning. R.L. told the officers that he had received the chainsaw from Benvie,

who asked him to bring it to Larson’s shop. The officers also learned from Larson that

R.L. had said that the chainsaw belonged to Benvie. In addition, the officers learned




                                             2
from another police department that G.G.’s residence had been burglarized in October

2013, resulting in the loss of numerous household items.

      The officers prepared an application for a warrant to search Benvie’s residence for

further evidence of the burglary of G.G.’s residence. The warrant application included,

among other things, the information received from Larson and R.L.; information

concerning Benvie’s criminal history, including prior convictions for second- and third-

degree burglary; and information concerning Benvie’s current residence. The application

sought a warrant to search Benvie’s residence (including outbuildings and vehicles) for

all other items stolen in the October 2013 burglary of G.G.’s residence. Attached to the

warrant application was a five-page list of approximately 100 items that were stolen in

the burglary, including an expensive 1960s-era guitar, an expensive six-piece cooking set,

various tools, and other common household items.

      The officers submitted the warrant application on February 6, 2014, and the

district court approved it. Later that day, the officers executed the search warrant.

During the search, the officers found a bag that they suspected to contain

methamphetamine, two unused needles, a container with multiple used needles, and a

glass pipe. The officers also found a short-barreled shotgun.

      The state charged Benvie with three offenses: (1) being an ineligible person in

possession of a firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2012);

(2) fifth-degree controlled substance crime based on Benvie’s possession of

methamphetamine, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2012); and

(3) possession of drug paraphernalia, in violation of Minn. Stat. § 152.092 (2012). In


                                            3
May 2014, the state amended the complaint by adding another charge: (4) possession of a

short-barreled shotgun, in violation of Minn. Stat. § 609.67, subd. 2 (2012).

       In April 2014, Benvie moved to suppress the evidence found during the search of

his residence. Benvie argued that the warrant application was not supported by probable

cause because there was no nexus between the items stolen from G.G.’s residence and his

own residence. In May 2014, the district court denied Benvie’s motion.

       Before trial, Benvie pleaded guilty to count 3, the charge concerning his

possession of drug paraphernalia, and the state voluntarily dismissed count 2, the charge

alleging Benvie’s possession of a controlled substance. In September 2014, the case

proceeded to trial on counts 1 and 4, the charges concerning the firearm found in

Benvie’s residence. The jury found Benvie guilty on both counts. In October 2014, the

district court imposed a sentence of 60 months of imprisonment on count 1. Benvie

appeals.

                                     DECISION

       Benvie argues that the district court erred by denying his motion to suppress

evidence. Specifically, he argues that the search-warrant application did not establish

probable cause for a search of his residence because there was an insufficient nexus

between the stolen items that the officers were seeking and his residence.

       The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures” and states that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched,


                                             4
and the persons or things to be seized.” U.S. Const. amend. IV; see also Minn. Const.

art. I, § 10. “Probable cause exists if the judge issuing a warrant determines that ‘there is

a fair probability that contraband or evidence of a crime will be found.’” State v.

Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014) (quoting Illinois v. Gates, 462 U.S. 213,

238, 103 S. Ct. 2317, 2332 (1983)). Whether probable cause exists is a “practical,

common-sense decision.” Id. On appeal, this court must determine “whether the judge

issuing the warrant had a substantial basis for concluding that probable cause existed.”

Id. (internal quotation omitted).

       The supreme court recently summarized the principles that govern Benvie’s

appeal:

                      Probable cause not only requires that the evidence
              sought likely exists, but also that there is a fair probability
              that the evidence will be found at the specific site to be
              searched. A sufficient “nexus” must be established between
              the evidence sought and the place to be searched. However,
              direct observation of evidence of a crime at the place to be
              searched is not required. A nexus may be inferred from the
              totality of the circumstances. Among the circumstances the
              issuing judge . . . considers in determining whether there is
              probable cause to believe that the evidence sought will be
              found at a particular place are the type of crime, the nature of
              the items sought, the extent of the defendant’s opportunity for
              concealment, and the normal inferences as to where the
              defendant would usually keep the items.

Id. at 622-23 (quotations and citations omitted).

       In this case, the district court found that there was a nexus between the items for

which the police officers were searching (i.e., the items that had been stolen in the

burglary of G.G.’s residence) and Benvie’s residence. The district court determined that



                                             5
it was reasonable to believe that Benvie probably committed the burglary of G.G.’s

residence and, furthermore, that the other items stolen during the burglary probably

would be found in Benvie’s residence.

      Benvie briefly challenges the premise that the warrant application contains

probable cause that he committed the burglary of G.G.’s residence. He contends, “There

was no information connecting Appellant to the alleged burglary four months earlier” and

“no information that Appellant ever possessed a stolen item from the burglary, other than

the stolen chainsaw.” This contention is, in essence, self-defeating. The information that

Benvie possessed the stolen chainsaw is information that connects him to the burglary of

G.G.’s residence. For purposes of a probable-cause determination, it is reasonable to

believe that a person who possesses stolen property likely is the person who stole the

property. See State v. Flom, 285 N.W.2d 476, 477 (Minn. 1979).

      Benvie’s primary challenge is to the premise that the other items stolen during the

burglary of G.G.’s residence likely would be found in his residence. He contends, “There

was no information that Appellant had kept the stolen chainsaw at his residence” and “no

information indicating that Appellant ever made any statements about stolen items being

in his residence.”   Benvie is correct that the police officers had not received any

information from any person that Benvie possessed the stolen items in his residence. But

the lack of such information does not preclude the issuing judge from making such an

inference, if the inference is supported by other information in the search-warrant

application. See Yarbrough, 841 N.W.2d at 622 (noting that “direct observation of

evidence of a crime at the place to be searched is not required”). To reiterate, the


                                            6
determination whether probable cause exists is a “practical, common-sense decision,” id.,

and an issuing judge is permitted to draw “the normal inferences as to where the

defendant would usually keep the items,” id. at 623. The key question is whether, given

the circumstances, and assuming that Benvie committed the burglary of G.G.’s residence,

it was reasonable for the issuing judge to believe that Benvie probably would keep the

stolen items at his residence as opposed to some other place.

       This “practical, common-sense decision” depends on the nature of the items

sought. See id. at 622-23. In a case concerning items stolen from a person’s lake home,

the supreme court recognized that “the normal place defendant would be expected to

keep such items would be at his house.” Flom, 285 N.W.2d at 477. In a case concerning

a large number of stolen coins, the supreme court reasoned that “the normal place that

defendant would be expected to keep those coins which he could not carry would be at

his residence.” Rosillo v. State, 278 N.W.2d 747, 749 (Minn. 1979). In this case, the

officers were searching for approximately 100 household items that had been stolen from

G.G.’s residence, including, as noted above, a guitar, a six-piece cooking set, and tools.

Given the sheer number of stolen items, as well as the fact that some items were too large

to carry on one’s person, it is only natural to expect that the items would be kept in a

person’s home. Thus, in drawing a “normal inference[] as to where the defendant would

usually keep the items,” Yarbrough, 841 N.W.2d at 623, the issuing judge was permitted

to infer that Benvie would keep the fruits of the burglary at his home.

       Benvie relies on State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998), in which the

supreme court concluded that there was an insufficient nexus between the appellant’s


                                             7
suspected drug-trafficking and her residence. Id. at 747-49. The case is distinguishable

for a few reasons. First, the search warrant in Souto sought controlled substances, which

are smaller in size and easier to keep at a place other than a person’s home. See id. at

747-49; see also Yarbrough, 841 N.W.2d at 623. But the items sought in this case are

more similar to the stolen property in Flom and Rosillo. Second, the investigating

officers in Souto were relying on stale information, which was several months old.

Souto, 578 N.W.2d at 748, 750. In this case, the officers’ warrant application relied on

information that they had received no more than one day earlier. Third, in Souto, the

information in the warrant application connecting the defendant to the suspected criminal

activity was tenuous and circumstantial. See id. at 748-49. In this case, in contrast,

Benvie’s possession of a chainsaw that was known to have been stolen in a burglary

provided a strong basis for a finding of probable cause. Thus, the Souto opinion does not

compel the conclusion that there was no nexus between the items sought in the search-

warrant application and Benvie’s residence.

       In sum, the district court did not err by denying Benvie’s motion to suppress the

evidence seized at his residence pursuant to the search warrant.

       Affirmed.




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