State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0069

State of Minnesota,
Respondent,

vs.

Michael Andre Byrd,
Appellant.

Filed November 20, 2017
Affirmed
Reilly, Judge

St. Louis County District Court
File No. 69DU-CR-15-476

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

Mark S. Rubin, St. Louis County Attorney , Kristen E. Swanson, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his conviction of two coun ts of controlled-substance crime in the
first degree, appellant Michael Byrd argues that the district c ourt erred by denying his

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suppression motion because th e evidence was obtained with a warrant issued without
probable cause. We affirm.
FACTS
During January 2015, a conf idential reliable informant (CRI) told Duluth police
about two men from Chicago, one of whom wa s later identified as appellant, who were
selling cocaine and heroin at a West Duluth apartment. Over the course of a month, police
conducted a series of controlle d drug buys at the West Duluth apartment. Based on this
information, on February 11, 2015, police obtained a search warrant from the district court
for the West Duluth apartment. A short time la ter that day, the same CRI told police that
appellant was not at the West Duluth apar tment and was instead at an East Duluth
apartment with drugs availabl e for sale. Police conducted brief surveillance at the new
location and observed appellant entering the building. Base d on the CRI’s tip, the CRI’s
reliable information about the West Duluth apartment, and their brief surveillance, police
obtained an updated warrant to search the East Duluth ap artment. Upon executing the
warrant, police discovered evidence of drugs packaged for sale and other materials used in
the drug trade. The state charged appellant with two first-degree controlled-substance
crimes.
Appellant moved the district court to supp ress the evidence obtained in the search,
arguing the warrant lacked probable cause. The district court denied appellant’s motion to
suppress. Following a stipul ated-facts trial pursuant to Mi nnesota Rule of Criminal
Procedure 26.01, subdivision 4, the district c ourt found appellant guilty of two counts of
controlled-substance crime in the first degree.

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Appellant appeals.
D E C I S I O N
I.
Appellant challenges the district court’s conclusion that the warrant authorizing the
search of the East Duluth apartment was supported by probable cause. The United States
and Minnesota Constitutions protect citizen s from unreasonable searches and seizures,
providing that no warrant shall be issued without a showing of probable cause. U.S. Const.
amend. IV; Minn. Const. art. 1, § 10. Probable cause exists if “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).
A search warrant may be issued by a ne utral and detached magistrate only upon a
finding of probable cause. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). An issuing
judge may draw common-sense and reasonable inferences from the fa cts in the warrant
affidavit. State v. Holiday, 749 N.W.2d 833, 843 (Minn. App. 2008) (quotation omitted).
When determining whether probable cause existed, the appellate court does not engage in
de novo review. State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), review denied
(Minn. Feb. 22, 2006). This court grants “great deference” to an issuing judge’s finding of
probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).
“An appellate court reviews a district court’s decision to issue a warrant only to
consider whether the issuing judge had a subs tantial basis for concluding that probable
cause existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). A substantial basis
exists when there is a “fair probability that contraband or evidence of a crime will be found

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in a particular place.” State v. Zanter , 535 N.W.2d 624, 633 (Minn. 1995) (quotation
omitted). Courts err on the side of issuing warrants in “doubtful or marginal” cases to
avoid “discouraging police from seeking review by a neutral and detached magistrate.”
State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied (Minn. Nov. 16,
2004).
Appellant first argues that the district court erred by not suppressing the evidence
obtained during the search of the East Duluth apartment, b ecause an insufficient nexus
existed between the alleged illegal activity at the West Duluth ap artment and the East
Duluth apartment. Appellant claims that the controlled buys and observation of drug
dealing at the West Duluth apartment cannot show that criminal activity occurred at the
East Duluth address, because those activities were never observed at the second location.
To find probable cause, a “dir ect connection” or “nexus ” must exist between the
alleged criminal activity and the location to be searched. State v. Yarbrough, 841 N.W.2d
619, 622 (Minn. 2014). Direct observation of evidence of a crime at the place to be
searched is not required. See Harris, 589 N.W.2d at 788-89. A nexus may be inferred by
the totality of the circumstances. Id. at 790-91. A number of circumstances inform a
judge’s determination of whether a nexus exists, including: the type of crime, the nature of
the items sought, the extent of a defendant ’s opportunity for c oncealment, and normal
inferences about where a defendant would usually keep such items. State v. Pierce, 358
N.W.2d 672, 673 (Minn. 1984).
Here, the basis of the warrant for the West Duluth apartment included the CRI’s tip
and the corroborating drug buys. Appellant participated in two of those buys at the West

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Duluth apartment. Appellant was known to be from Chicago and was not a Duluth resident.
Appellant’s only apparent reason for being in Duluth was to sell drugs, and police actually
observed appellant selling drugs out of an apartment. There is a fair probability that
appellant’s reason for moving to a different apartment is the same—to sell drugs. Context,
coupled with the CRI’s tip that appellant had drugs for sale at the East Duluth apartment,
establishes a substantial basis for the judge to believe that evidence of a crime would be
discovered at the East Duluth apartment.
Appellant also argues that the East Duluth apartment was not appellant’s
“residence” for the purposes of the drug-w holesaler probable-cause presumption. See
Yarbrough, 841 N.W.2d at 623 (describing reasonable presumption that a drug wholesaler
keeps drug evidence at th eir residence). Because this court finds a substantial basis for
probable cause independent of the drug-whole saler presumption, we decline to address
appellant’s argument.
II.
Appellant next argues that the search warrant affidavit did not adequately detail the
CRI’s basis of knowledge for criminal activity at the East Duluth ap artment, and that the
CRI’s tip should not be considered for the district court’s finding of probable cause. Police
may rely on a CRI’s information if it is shown to be sufficiently reliable. In re Welfare of
G.M., 560 N.W.2d 687, 691 (Minn. 1997). To determine reliability, courts consider both
the CRI’s veracity and the basis of his or her knowledge as presented in the warrant
affidavit. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).

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Veracity is properly considered alongside the CRI’s basi s of knowledge as part of
the totality of the circumstances. See Holiday, 749 N.W.2d at 840 (describing veracity and
basis of knowledge as “closely intertwined issues”). Minnesota courts consider six factors
when determining a CRI’s veracity: (1) whether a CRI is a first-time CRI; (2) whether the
CRI has provided reliable information in the past; (3) whether police can corroborate the
information provided by the CRI; (4) whethe r the CRI came forward voluntarily; (5) “in
narcotics cases, ‘controlled purchase’ is a te rm of art that indicates reliability”; and
(6) whether the CRI makes a statement against the CRI’s penal interest. State v. Ross, 676
N.W.2d 301, 304 (Minn. App. 2004).
In this case, the district court determined the CRI was reliable, and the parties agree
on the CRI’s veracity. The warrant affidavit describes how in the past the CRI provided
information to police resulting in four arrests for the sale of controlled substances. Three
o f t h e C R I ’ s p a s t t i p s a l s o r e s u l t e d i n search warrants where police located controlled
substances and other evidence of drug sales a nd distribution. Pertin ent to this case, the
CRI’s tip about the West Dulu th apartment was confirmed by police through a series of
controlled drug buys. Viewing the totality of the circumstances, a substantial basis exists
to establish the CRI’s veracity.
Veracity alone cannot establish probable cause—information provided by a CRI
must still show a basis of knowledge. State v. Cook, 610 N.W.2d 664, 668 (Minn. App.
2000), review denied (Minn. July 25, 2000). Appellant argues that the warrant affidavit
contains no information describing the CRI’s basis of knowledge for appellant’s criminal
activity at the East Duluth apartment.

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In assessing a CRI’s basis of knowledge, the issuing judge should consider (1) the
“quantity and quality of detail in the CRI’s report,” and (2) “whether police independently
verified important details of the [CRI’s] report.” Id. (citing Alabama v. White, 496 U.S.
325, 331-32, 110 S. Ct. 2412, 2417 (1990)). Under the totality-of-the-circumstances test,
we will not view the CRI’s basis of knowledge in a h yper technical fashion. See, e.g.,
Wiley, 366 N.W.2d at 269; State v. Quinn, 436 N.W.2d 758, 763 (Minn. 1989) (reviewing
search warrants in a practical, commonsense manner). Though recent personal observation
of illegal activity by a CRI is the prefe rred way to show basis of knowledge, Wiley, 366
N.W.2d at 269, “basis of knowledge may also be supplied indirectly through self-verifying
details that allow an inference that the information was gained in a reliable way” and is not
based on reputation or rumor, Cook, 610 N.W.2d at 668. Basis of knowledge and veracity
“should not be understood as entirely separate and independent requirements to be rigidly
exacted in every case” but inst ead “as closely intertwined issues that may usefully
illuminate the commonsense, practical question [o f] whether there is ‘probable cause’ to
believe that contraband or evidence is located in a particular place.” Holiday, 749 N.W.2d
at 840 (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983) (internal
quotations omitted)).
Here, the affidavit accompanying the search warrant stated the CRI told police that
appellant was no longer at the West Duluth address and was currently in possession of
cocaine and heroin for sale elsewhere. On its own, this information might fail to provide
the “quality of detail” needed to establish basis of knowledge. Cook, 610 N.W.2d at 668.
However, we do not view portions of the warrant affidavit in isolation; we engage in

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practical inquiry of the totality of the circumstances. See, e.g., Wiley, 366 N.W.2d at 269.
First, police observed appellant entering the East Duluth apartment, which “independently
verified” the CRI’s tip. Cook, 610 N.W.2d at 664. Second, not only was the CRI deemed
reliable in the past by providing corroborated information to police, but the CRI also proved
reliable to police in the present case. The CRI’s corroborated knowledge of drug activity
at the West Duluth address allows a judge to draw the inference that the CRI’s information
on the East Duluth address came from the same source. See Ross, 676 N.W.2d at 304
(holding that totality of the circumstances can show a CRI’s basis of knowledge).
Appellant next argues that the CRI’s tip about appellant’s location at the East Duluth
apartment does not contribute to the CRI’s reliability, because a person’s general location
is information that is easily obtained. Easily obtained information about a person’s present
location is relatively ineffective towa rd establishing a CRI’s credibility. See, e.g., Cook,
610 N.W.2d at 669 (holding that a CRI’s descri ption of defendant’s present location at a
YMCA and outward physical appearance were easily ascertainable by anyone and did not
demonstrate any basis of knowledge for knowing about a drug sale).
In this case, the CRI told police that appellant moved to the East Duluth apartment
with drugs available for sale. Appellant’s pres ence at the East Dulu th apartment is more
specific knowledge because the apartment itself is not a public space that is as freely
observable to the public as the YMCA parking lot in Cook. Also, appellant is not a Duluth
resident, so his whereabouts might be more difficult to ascertain than an individual who
was “at home” and might have routine activities.

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Appellant next argues that the CRI’s info rmation about appellant’s location is not
predictive of future behavior, so should not be lent any sp ecial weight. CRIs are deemed
more reliable if they supply information that correctly predicts future behavior. See Ross,
676 N.W.2d at 305 (holding that a CRI’s corr oborated prediction of future behavior was
key to finding probable cause). This court concludes there was a sufficient showing for
basis of knowledge from the warrant affidavit, so we decline to consider whether the CRI’s
information deserves special consideration for predicting future behavior.
Finally, appellant notes that a warrant to search the East Duluth apartment based on
appellant’s observed illegal activity during the West Duluth drug buys does not give police
probable cause to search any location appellant might later occupy. Police did not obtain
a warrant to search any location appellant might later occupy, only the East Duluth address,
which was based on police obse rvation that appellant was at that address based on a tip
from a CRI.
We therefore conclude that the district court judge who signed the search warrant
had a substantial basis to find probable cause, and the district court judge who reviewed
the warrant in the suppression hearing did no t err in denying the motion to suppress the
evidence.
Affirmed.