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This opinion will be unpublished and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
A17-0079

State of Minnesota,
Respondent,

vs.

Steven Brian Bashans,
Appellant.

Filed July 9, 2018
Affirmed
Rodenberg, Judge

McLeod County District Court
File No. 43-CR-15-196

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

Michael K. Junge, McLeod County Attorney , Zachary L. Lyngaas, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Steven Brian Bashans appeals from the postconviction court’s denial of
his petition alleging that his trial counsel was ineffective for failing to challenge the search
warrant authorizing law enforcement to search appellant’s house. We affirm.
FACTS
The Renville County Sheriff’s Office received an unusually large number of reports
of theft crimes during the fall of 2014, including thefts of trailers and recreational vehicles.
The items reported stolen included an air compressor, an air hose and air-compressor
attachments, snowmobile dollies, a trailer, a Yamaha jet ski, 1 a ShoreLand’r trailer, two
snowmobiles, and a large fuel tank.
On January 29, 2015, Renv ille County Sheriff’s Investigator Jason Mathwig
arrested appellant’s son, J.B., for an unrelated offense. In a postarrest interview, J.B. said
that he and appellant had co mmitted the reported thefts. J. B. explained that he and
appellant went to an abandoned farm site and stole a trailer and an air compressor matching
the descriptions of those previously reported as stolen. J.B. also told the investigator that
appellant had stolen a Yamaha jet ski, two snowmobiles, and a fuel tank, all matching the
descriptions of those previously reported stolen. J.B. said that some of the property was at
1 The search warrant ap plication identified this vehicle as a “2007 Yamaha VX Sport Jet
Ski,” and the parties use the term “jet ski” in their briefs. Although Jet Ski® is a registered
trademark of Kawasaki (http ://www.kawasakienginesusa.com/legal-notices/
kawasaki-trademarks), we use the term here to be con sistent with th e language used by
the parties and the district court.

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appellant’s residence. He reported seeing one of the snowmob iles on the stolen trailer in
appellant’s driveway. J.B. also stated that he saw the Yamaha jet ski and fuel barrel in
appellant’s detached garage within the previous two weeks. He stated that appellant was
“parting out”2 the jet ski, but did not know what a ppellant had done with the parts he had
removed from the machine. At Investigator Mathwig’s direction, a state trooper drove past
appellant’s house. The trooper reported se eing a covered snowmobile on a trailer in
appellant’s driveway.
Investigator Mathwig prepared an application for, and th e district court signed, a
warrant to search appellant’s house, detached garage, and the curtilage around appellant’s
residence. The search warrant stated that Investigator Mathwig had reason to believe that
a number of stolen items would be located at the property to be searched. Specifically, the
search warrant identified a Yamaha jet ski, a ShoreLand’r trailer, a three- to four-gallon air
compressor, an air hose, air co mpressor attachments, snowmobile dollies, two Arctic Cat
vehicles, a portable fuel tank, and “papers or receipts showing constructive residency” as
the objects of the search.
Law enforcement executed the search warrant. Investigator Mathwig found
appellant inside the house. Appellant told Investigator Mathwig that he lived alone and
was the only person inside the house. Investigator Mathwig asked appellant if there were
any weapons inside the house. Appellant sa id that he had some firearms, and told
Investigator Mathwig that there was a shotgu n in a case in the pa ntry and three more

2 The parties agree that this term means that appellant was removing parts of a machine,
presumably to sell.

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firearms upstairs under the bed. Appellant also told the officers he knew he was not
supposed to have firearms, apologized, and said that he was trying to sell the firearms.
The state charged appellant with one coun t of felon in possession of a firearm and
one count of receiving stolen property. Appellant pleaded guilty to the felon-in-possession
charge in exchange for dism issal of the receiving-stol en-property charge, and was
sentenced. Months later, appe llant petitioned for pos tconviction relief, alleging that his
guilty plea was not intelligent because he was induced to plead guilty by the belief that his
sentence would be lower than the statutory minimum of 60 months. The postconviction
court granted appellant’s petition for relief a nd vacated his guilty plea, reinstating the
original charges.
Appellant requested a contested omnibus hearing “to challenge the issuance of the
search warrant . . . on the grounds that ther e was not sufficient probable cause for the
issuance of that warrant in the first instance.” Appellant’s trial counsel said he thought that
“it would be a disservice to [appellant] if we si mply rolled over on that issue at this point
without having heard testimony from the officer.”
At the contested omnibus hear ing, appellant withdrew hi s challenge to the search
warrant. Appellant’s trial counsel stated:
[A]fter looking . . . more clos ely on exactly what the Court
relied on in the issuance of that search warrant, it appears to
me, as an officer of the cour t, that there is no legitimate
argument to make that the Court mistakenly issued that search
warrant and, in fact, there’s no probable cause . . . or a lack of
probable cause in that particular situation. So I believe that
proceeding with a hearing to ch allenge probable cause at this
point would be a waste of time.

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Appellant’s attorney added that he thought it was “exceedingly unlikely” that appellant
would prevail on that argument, “to the point where it’s not advisable to move forward
with the hearing at this point.” The district court told appellant that if he chose not to
proceed with the hearing, he would be waivi ng his right to challenge the search warrant.
The district court asked appellant if he wished to waive that challenge, and appellant said
that he did.
Appellant pleaded guilty to receiving stol en property, stipulated that a prior
conviction rendered him ineligib le to possess a firearm and that he had previously been
convicted of being a felon in possession, and proceeded to a jury trial on the felon-in-
possession charge. The jury found appellant guilty, and th e district court sentenced
appellant.
Appellant timely appealed. We granted appellant’s motion to stay the direct appeal
and remand for postconviction proceedings. Appellant then petitioned for postconviction
relief alleging that his trial counsel was ineffective for not having challenged the search
warrant. The postconviction court denied appellant’s petition for relief.
This appeal followed.
D E C I S I O N
A criminal defendant has the right to “effective assistance of counsel.” Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To succeed on a claim
that trial counsel was ineffective, a defendant must show that trial counsel’s performance
“(1) fell below an objective standard of reas onableness (performance prong), and (2) that
a reasonable probability exists that the outcome would have been different but for counsel’s

6
errors (prejudice prong)” to succeed on an ineffective-assistance-of-counsel claim. State
v. Blanche, 696 N.W.2d 351, 376 (Minn. 2005). We need not address both factors if either
one is determinative. Id.
Trial counsel’s performance is judged using an objective standard of “representation
by an attorney exercising the customary skills and diligence that a reasonably competent
attorney would perform under similar circumstances.” Opsahl v. State, 677 N.W.2d 414,
421 (Minn. 2004) (quotation omitted). “An attorney’s failure to raise meritless claims does
not constitute deficient performance and cannot provide the basis for a claim of ineffective
assistance.” State v. Dickerson, 777 N.W.2d 529, 535 (Minn. App. 2010) (citing Schleicher
v. State, 718 N.W.2d 440, 449 (Minn. 2006)).
“We review ineffective assistance of counsel claims de novo because they involve
mixed questions of law and fact.” Blanche, 696 N.W.2d at 376. “We review legal issues
de novo. However, our review of factual matte rs is limited to whet her there is sufficient
evidence in the record to sustain the postconviction court’s findings.” State v. Blom, 682
N.W.2d 578, 624 (Minn. 2004) (quotation and citations omitted ). This standard applies
when an appeal from a postconviction order merges with issues from a stayed direct appeal.
Id. We review the postconviction court’s cr edibility determinations using the clearly
erroneous standard. Bobo v. State , 860 N.W.2d 681, 684 (Min n. 2015). Findings are
clearly erroneous only if the reviewing court is “left with the definite and firm conviction
that a mistake has been made.” State v. Roberts, 876 N.W.2d 863, 868 (Minn. 2016).
Appellant argues that his trial counsel provided ineffective assistance when he failed
to raise a probable-cause cha llenge to the search warrant th at led to the discovery of

7
firearms in his home. A defendant claiming in effective assistance of counsel based on a
failure to litigate a constitutional issue must show that the issue has merit and would affect
the outcome of the case. See Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574,
2586 (1986).
The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. U.S. Const. amend.
IV; Minn. Const. art. 1, § 10. A search warrant may be issu ed by a neutral and detached
magistrate only upon a fi nding of probable cause. State v. Harris, 589 N.W.2d 782, 787
(Minn. 1999). When determin ing whether probable cause supported the issuance of a
search warrant, we do not engage in de novo review. State v. McGrath, 706 N.W.2d 532,
539 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Instead, our “only
consideration is whether the issuing judge had a substantia l basis for concluding that
probable cause existed.” State v. Fawcett, 884 N.W.2d 380, 384 (Minn. 2016) (quotation
omitted). A substantial basis in this contex t means a “fair probability ,” given the totality
of the circumstances, “that contraband or evidence of a crime will be found in a particular
place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). We afford
“great deference” to the issuing judge’s finding of probable cause. State v. Wiley , 366
N.W.2d 265, 268 (Minn. 1985).
Our review “is limited to the information presented in the warrant application and
supporting affidavit.” Fawcett, 884 N.W.2d at 384-85. “[Appellate courts] must consider
the totality of the circumstances alleged in the supporting affidavit and must be careful not
to review each component of th e affidavit in isolation.” Id. at 385 (quotation omitted).

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“[T]he critical question is whether the totality of facts and circumstances described in the
affidavit would justify a person of reasonable caution in believing th at the items sought
were located at the pl ace to be searched.” State v. Ruoho , 685 N.W.2d 451, 456 (Minn.
App. 2004), review denied (Minn. Nov. 16, 2004). We recognize “that doubtful or
marginal cases should be largely determined by the preference to be accorded to warrants.”
Fawcett, 884 N.W.2d at 385 (quotation omitted).
“[A] sufficient ‘nexus’ must be establis hed between the evidence sought and the
place to be searched.” State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014). “[D]irect
observation of evidence of a crime at the place to be searched is not required.” Id. “A
nexus may be inferred from the to tality of the circumstances.” Id. A number of
circumstances inform a judge’s determination of whether such a nexus exists, including the
type of crime, the nature of the items sough t, the extent of a de fendant’s opportunity for
concealment, and normal infere nces about where a defendant would usually keep such
items. State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984). Courts interpret search-warrant
applications “in a common-sense and realistic manner” when determining whether they
“contain information which would warrant a pe rson of reasonable cau tion to believe that
the articles sought are located at the place to be searched.” State v. Gail, 713 N.W.2d 851,
858 (Minn. 2006) (quotation omitted).
Appellant argues that the search-warrant a pplication to search for stolen property
establishes a direct connection only to appella nt’s detached garage and driveway, but not
to appellant’s house. He argues that the type of crime and the items reported stolen are of

9
such a nature that the only normal inference is that these items would be stored in a garage
or on a driveway, and that it would be unusual to keep them in a house.
The search-warrant application stated that J.B. told Investigator Mathwig that he
helped appellant steal a trailer and an air compressor with accessories and that appellant
had stolen a jet ski, two snowmobiles, and a fuel barrel from a truck. J.B. reported seeing
one snowmobile and the trailer on appellant’s driveway and the jet sk i and fuel tank in
appellant’s detached garage. J.B. further stat ed that appellant had been “parting out” the
jet ski and that he was unsure where the missing parts were located. J.B. did not report the
location of the air compressor or its accessories.
The fact that J.B. neither said that he saw any stolen items in appellant’s house nor
specifically suggested that any of those items might be found in the house does not
necessarily render the warranted search of the house unsupported by probable cause.
Yarbrough makes clear that “direct observation of ev idence of a crime at the place to be
searched is not required” and that “[a] ne xus may be inferred from the totality of the
circumstances,” including the type of crime, the nature of the items and where they would
normally be kept, as well as the opportunity for concealment 841 N.W.2d at 622.
The postconviction court acknowledged that a number of the stolen items would,
“due to their size or type[,] be expected to be found in a garage or shed.” But the
postconviction court also noted that several of the stolen items—the air compressor, air
compressor accessories, and parts removed from th e jet ski—could fit in smaller spaces.
Appellant cites to a portion of United States v. Ross stating that “probable cause to believe
that a stolen lawnmower may be found in a garage will not support a warrant to search an

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upstairs bedroom.” 456 U.S. 798, 824, 102 S. Ct. 2157, 2172 (1982). But while appellant
argues that the nature of most of the items for which police were looking in this case are
such that they would normally be kept in a garage or shed, we agree with the postconviction
court that the smaller items and parts remove d from the larger items could reasonably be
kept inside a house.
But here, unlike in Yarbrough, a nexus cannot necessarily be inferred between the
nature of the stolen items and appellant’s home. At least some of the stolen items here are
not the sort of thing that one would almost invariably keep in a house, like a gun or drugs.
841 N.W.2d at 623. Therefore, we must also consider the type of crime and the opportunity
for concealment in determining whether there was a sufficient nexus between the
information and the place to be searched—the home. Id. at 622.
Appellant relies on State v. Brennan, 674 N.W.2d 200, 203 (Minn. App. 2000), for
the proposition that, in cases where a warrant has been upheld despite no direct connection
between the items and the defendant’s house, “the alleged crimes were by their nature ones
where the defendant was likely to keep the contraband in question inside his house.” While
a theft and, more specifically, a theft of vehicles and vehicle accessories, may not
necessarily mean that the susp ect has placed stolen items inside his house, most thefts
usually involve some level of concealment of those items by th e perpetrator. It is only
reasonable to infer that a thief would make some effort to conceal the stolen items. And,
in the context of these facts, appellant was in fact trying to conceal the stolen items; the jet
ski and fuel tank were inside his garage and one of the two snowmobiles was covered with
a tarp, on top of the stolen trailer, in appella nt’s driveway. Appellant also had sufficient

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opportunity to conceal the items. All of the reported thefts occurred between October and
early November of 2014. J.B. was arre sted and interviewed by law enforcement on
January 29, 2015, and stated that he had last seen some of the items in appellant’s garage
and on the driveway on January 28, 2015. With more than two months passing between
the last theft and when J.B. reported se eing the stolen items, appellant had ample
opportunity to conceal them. And, as noted, police also knew from J.B. that appellant was
“parting out” the jet ski.
Based on the totality of the circumstances, the inclusion of appellant’s house in the
premises to be searched was sufficiently su pported by probable cause. Appellant was
trying to conceal the fruits of his theft, had ample opportunity to do so, and the
unaccounted-for stolen items and jet-ski parts would, without any leap of logic, reasonably
be located in appellant’s house. While no single fact establishes a nexus between the theft
crimes and the residence, the totality of the known facts would lead a reasonably cautious
person to infer that appellant had concealed some of the stolen items inside his house. On
this record, and considering “the pref erence to be accorded to warrants,” Fawcett, 884
N.W.2d at 385 (quotation omitted), there was a sufficient nexus between the stolen items
and appellant’s house.
Appellant’s trial counsel was not ineffec tive for not having cha llenged the search,
because the motion would have been unsuccessful. Trial counsel’s performance is not
deficient for failing to raise meritless claims. Dickerson, 777 N.W.2d at 535.
Affirmed.