State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1379

State of Minnesota,
Respondent,

vs.

Tommy Earl Upshaw,
Appellant.

Filed April 15, 2019
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-17-8614

Keith Ellison, Attorney General, St. Paul, Minnesota; and

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

Kirk M. Anderson, Anderson L aw Firm, PLLC, Scott A. Lewis, Scott Lewis Law Firm,
Minneapolis, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges hi s convictions of two counts of first-degree controlled -
substance crime, arguing that the district court erred by denying his suppression motion in
which he claimed that a search warrant executed at his residence was invalid because it
was not supported by probable cause. We affirm.
FACTS
In April 2017, Officer Jeffrey Werner applied for a warrant to search the residence
of appellant Tomm y Upshaw for narcotics and related paraphernalia. In his supporting
affidavit, Officer Werner stated that he met with a confidential reliable informant (CRI#1)
in August 2016, and that CRI#1 provided information that a male whom the CRI#1 knew
as “Red” was selling a large amount of cocaine/crack in Minneapolis. Officer Werner was
familiar w ith a cocaine dealer named “Red” and knew him as Upshaw. Durin g a n
investigation in April 2015, law enforcement recovered approximately 80 grams of cocaine
from Upshaw’s residence, along with two firearms and a large amount of currency. As part
of that investigation, CRIs were used to conduct controlled buys from Ups haw, and each
controlled buy yielded 28 grams of cocaine. Officer Werner also knew that Upshaw ha d
two prior narcotics-related felony convictions.
Officer Werner showed CRI#1 a picture of Upshaw , and CRI#1 confirmed that
Upshaw was the person whom CRI#1 knew as “Red.” CRI#1 provided Officer Werner
with Upshaw’s phone number. Based on the information provided by CRI#1, Officer
Werner received two district court orders that allowed him to obtain the GPS locations for

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Upshaw’s cell phone. Officer Werner then “conducted electronic surveillance and physical
surveillance on Upshaw for multiple months.” Through his surveillance, Officer Werner
determined that Upshaw live d at an address on Parkview Boulevard in Robbinsdale
(Parkview address) and frequent ed an addres s on Sheridan Avenue North (Sheridan
address), an address on Thomas Avenue North (Thomas address), and an apartment on
Garfield Avenue South (Garfield address).
In February 2017, Officer Werner again met with CRI#1, who stated that Upshaw
often s old cocaine to customers on the block of the Thomas address. Officer Werner
corroborated this information by regularly observing Upshaw meeting with occupants of
other vehicles for brief periods of time, which was consistent with narcotics dealing.
In March 2017, Of ficer Werner met with another CRI (CRI#2) , who identified
Upshaw from a photograph as a person CRI#2 knew as “Red.” CRI#2 told Officer Werner
that CRI#2 had observed Upshaw selling cocaine and crack and kn ew that Upshaw sold a
large amount of cocaine in Minneapolis. CR#2 also stated that Upshaw “cooks” his cocaine
into crack at the Sheridan address. CR#2 corroborated CRI#1’s claim that Upshaw
regularly met customers on the block of the Thomas address. Through electronic and
physical surveillance, Officer Werner observed Upshaw “leave his house” at the Parkview
address, go to the block of the Thomas address , and meet “multiple suspected drug
customers.”
The district court signed the search warrant, f inding probable cause to search
Upshaw’s residence at the Parkview address. Law enforcement executed the search warrant
at the Parkview address on April 6, 2017, and discovered 139 grams of suspected cocaine,

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a large amount of cash, items connecting Upshaw to the Parkview address, and items used
in the packaging of narcotics. Respondent State of Minnesota charged Upshaw with one
count of first -degree controlled-substance sale and one count of first -degree controlled-
substance possession. Upshaw moved to suppress the evidence obtained during execution
of the search warrant at his residence, arguing that the warrant was invalid because (1) the
warrant lacked probable cause to demonstrate a nexus between the suspected unlawful
activity and the place to be search ed; and (2) the information relied upon by law
enforcement was stale. The district court denied the motion.
Upshaw waived his right to a jury trial, stipulated to the state’s evidence, and agreed
to submit the case to the district court under Minn. R. Crim. P. 26.01, subd. 4, to preserve
for appellate review the pretrial suppression ruling. The court found Upshaw guilty of the
charged offenses and sentenced him to 95 months in prison.
This appeal follows.
D E C I S I O N
The United States and Minnesota Constitutions protect citizens from unreasonable
searches an d 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
when “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)). “The issuing judge’s task is to make a practical,
common-sense decision.” Id.

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“When reviewing a judge’s decision to issue a search warrant, [an appellate court’s]
only consideration is whether the issuing judge had a substantial 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 context 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). Our review
“is limited to the info rmation presented in the warrant application and supporting
affidavit.” Fawcett, 884 N. W.2d at 384 –85. We must “consider the totality of the
circumstances alleged in the supporting affidavit and must be careful not to review each
component of the affidavit in isolation.” Id. at 385 (quotation omitted). “[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 that the items sought were located at the
place to be searched.” State v. Ruoho , 685 N.W.2d 451, 456 (Minn. App. 2004), review
denied (Minn. Nov. 16, 2004). We consider the warrant application using common sense
rather than applying a hypertechnical construction. Id. And we “defer to the issuing
magistrate, recognizing 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 s
omitted).
Upshaw challenges the district court’s denial of his suppression motion, arguing that
the search warrant was not supported by probable cause because (1) the warrant lacked
probable cause to demonstrate a nexus between the suspected unlawful activity and the

6
place to be search; and (2) the information relied upon by law enforcement was stale. We
address each argument in turn.
A. Nexus
“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.” Yarbrough, 841 N.W.2d at 622. “A sufficient ‘nexus’ must be established
between the evidence sought and the place to be searched.” Id. This nexus may be inferred
from the totality of the circumstances and does not require direct observation of the
evidence of the “crime at the place to be searched.” Id. Circumstances to be considered in
making this determination “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 623.
Upshaw “concede[s] that there may be probable cause for the search” of the Thomas
address, the Sheridan address, and the Garfield address. But he argues that no sufficient
nexus betwe en the evidence and the Parkview address existed because “nothing
connect[ed] the unlawful activ ity with that residence” because “law enforcement did not
see any unlawful activity” at that address. We disagree. In State v. Yaritz, the supreme court
concluded that a sufficient nexus existed because the supporting affidavit for the warrant
indicated that “two controlled sales were arranged by telephone, defendant’s house was
under surveillance[,] and defendant was observed going straight from his house to the place
where the sale took place.” 287 N.W.2d 13, 15 (Minn. 1979).

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Here, the search-warrant affidavit stated that “[t]hrough electronic and physical
surveillance,” law enforcement “observed” Upshaw leave the Parkview address and go to
the block at the Thomas address “where he was observed meeting multiple suspected drug
customers.” This observation indicates that Upshaw kept the narcotics at his residence
because he drove directly from the Parkview address to the block of the Thomas address
where he appeared to engage in a drug t ransaction. U nder Yaritz, this observation is
sufficient to establish a nexus between the evidence sought and Upshaw’s residence.
Moreover, the information stated in the search-warrant affidavit reflects that Officer
Werner met with two CRIs who provided information that Upshaw was heavily involved
in the sale of crack and cocaine. The supporting affidavit also reflects that Officer Werner
had previously investigated Upshaw for selling narcotics and that approximately 80 grams
of cocaine had been discovered at Upshaw’s residence during the execution of a search
warrant in April 2015. The supporting affidavit further reflects that Officer Werner
conducted surveillance on Upshaw for several months and observed Upshaw going to
several different addresses where he appeared to be involved i n drug transactions. The
totality of these circumstances establishes a fair probability that Upshaw kept narcotics and
other related paraphernalia at his residence. Accordin gly, the supporting affidavit
demonstrated a sufficient nexus between the evidence sought and Upshaw’s residence.
B. Staleness
Upshaw also argues that the search warrant lacked probable cause because the
information contained in the supporting affidavit was stale. The issue of staleness typically
arises during consideration of whether a search warrant is supported by probable cause.

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See State v. Souto , 578 N.W.2d 744, 750 (Minn. 1998) (concluding that because
information in a search warrant was stale, the w arrant lacked probable cause). “[T]he
freshness of the information provided by the witness is an important factor for determining
the probability that contraband or evidence of a crime will be found in a particular place.”
State v. Carter, 697 N.W.2d 199, 206 (Minn. 2005) (quotation omitted).
The United States Supreme Court has said that a search -warrant application must
contain proof “of facts so closely related to the time of the issue of the warrant as to justify
a finding of probable cause at that time. ” Sgro v. United States , 287 U.S. 206, 210, 53
S. Ct. 138, 140 (1932). But courts have declined “to set arbitrary time limits in obtaining a
warrant or to substitute a rigid formula for the judge’s informed decision ,” instead
evaluating the facts based on the circumstances of each case. State v. Jannetta, 355 N.W.2d
189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). This approach is flexible
and allows the courts to apply common sense. Id.
Factors to be considered in determining whether information contained in a search-
warrant affidavit is stale include: “the age of the person giving the information , whether
there is any indication of ongoing criminal activity, whether the items sought are innocuous
or incriminating , and wh ether the property sought is easily disposable or transferable.”
State v. DeWald , 463 N.W.2d 741, 746 (Minn. 1990). Indications of “ongoing criminal
activity” remain fresh for a longer period of time than a single instance of criminal conduct.
Souto, 578 N .W.2d at 750. For example, a span of weeks between initial information of
illegal activity and the warrant application is permissible when the activity involves

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“repeated sales of drugs.” State v. Cavegn, 356 N.W.2d 671, 673 (Minn. 1984) (quotation
omitted).
Upshaw contends that because law enforcement provided “no specific dates about
when th[e] alleged unlawful activity was occurring,” and “only provided vague timelines,”
one is “left to speculate as to whether there is ongoing criminal activity.” But the supporting
affidavit states that Officer Werner began his investigation in August 2016, when he met
with CRI#1, who provided information that Upshaw “was selling large amounts of cocaine
in Minneapolis” ; that Officer Werner began conducting electronic and physical
surveillance on Upshaw and became “familiar” with his patterns; that Officer Werner met
with CRI#1 again in February 2017, when CRI#1 stated that Upshaw “often” went to the
block of the Thomas addre ss to sell cocaine to customers; that Officer Werner observed
Upshaw at this location “on a regular basis” engaging in activity consistent with narcotics
dealing; and that Officer Werner met with CRI#2 in March 2017, who also provided
detailed information about Upshaw’s narcotics activity. The search warrant was issued on
April 4, 2017, and executed on April 6, 2017. Although more specific dates of the suspected
narcotics transactions may have been helpful, the supporting affidavit provided a specific
timeline of the investigation, which demonstrated suspected “ongoing criminal activity.”
Moreover, the search warrant sought many items in addition to narcotics, such as
“mailings, keys, photographs, documents, cell phones or clothing,” and cash. Although
these items may have appeared innocuous to Upshaw, the items might be incriminating,
which supports the state’s position that the information contained in the s upporting
affidavit was not stale. See DeWald, 463 N.W.2d at 746–47 (stating that items that may be

10
incriminating, but appear innocuous to a defendant, support a determination that the search
warrant was valid). We conclude that the search warrant was supported by probable cause,
and the district court therefore did not err by denying Upshaw’s suppression motion.
Affirmed.