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This opinion will be unpublished and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
A18-2144

State of Minnesota,
Respondent,

vs.

John Edward Yort,
Appellant.

Filed December 2, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-18-9940

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reilly, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant John Edward Yort challenges the district court’s denial of his pretrial
motion to suppress evidence obtained pursuant to a search warrant. Yort argues that (1) the
search warrant affidavit failed to establish a sufficient nexus between the evidence sought

2
and his home, and (2) the information was stale when the warrant was executed. Because
officers followed Yort—who was known to be dealing in controlled substances —to his
home immediately after the controlled buy , there was a sufficient nexus to support the
search warrant. Also, the circumstances of this case show that the six-to-nine-day period
from the controlled buy to the execution of the search warrant does not render the probable
cause stale. Therefore, we affirm.
FACTS
In January 2018, O fficer Smith with the Burnsville Police Department started
investigating Yort “regarding the sale of large amounts of methamphetamine.” Yort has a
2015 conviction for first-degree possession of a controlled substance and a 2015 conviction
for fifth-degree possession of a controlled substance . During the investigation, law
enforcement learned that Yort often drove a white Chevy Tahoe when dealing
methamphetamine.
Sometime during the 72 hours before February 2, 2018, Officer Smith used a
confidential inform ant (CI) to conduct a controlled buy from Yort in Minneapolis .1
Officers observed Yort and an unidentified male enter the CI’s vehicle. Yort then sold the
CI a first-degree amount of methamphetamine. After the controlled buy, officers followed
Yort and the unidentified male to a Wentworth Avenue address in Minneapolis. Officers
observed “one of the males” open a white Chevy Tahoe parked in front of the Wentworth

1 The affidavit provides: “During this investigation and within the past 72hrs, your Affiant
arranged for a confidential informant . . . to contact [Yort] and arrange to purchase a 1st
Degree amount of methamphetamine.”

3
Avenue address and “dig” through the vehicle. Officers then observed Yort and the other
male walk to the south side of the Wentworth Avenue address. Officers were “briefly not
able to see” Yort but noted that the south side of the Wentworth Avenue residence is
“fenced off from the neighboring residence,” and concluded that, because there was
nowhere else to go, Yort entered the residence. Bureau of Criminal Apprehension records
show the Wentworth Avenue address as Yort’s home address.
On February 2, 2018, Officer Smith applied for, and received, a search warrant to
search Yort’s house. Off icers executed the warrant on February 8, 2018 ; officers seized
over 300 grams of methamphetamine and $76, 000 in cash during the search of the
residence.
The state charged Yort with first-degree sale of a controlled substance, in violation
of Minn. Stat. § 152.021, subd. 1(1) (2016), and second-degree possession of a controlled
substance, in violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2016). Yort moved to
suppress the evidence seized in the search of his house. The dis trict court denied the
motion.
The parties stipulated to the state’s facts pursuant to Minn. R. Crim. P. 26.01,
subd. 4, to obtain review of the district court’s suppression ruling. The state dismissed the
charge of first-degree sale of a controlled subst ance. The district court found Yort guilty
of second-degree possession of a controlled substance and sentenced him to a 90-month
executed prison sentence. The sole issue on appeal is the validity of the search warrant.

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D E C I S I O N
A search, generally, is lawful if it is executed pursuant to a valid search warrant
issued by a neutral and detached magistrate after a finding of probable cause. See Minn.
Stat. § 626.08 (2016); State v. Harris , 589 N.W.2d 782, 787 (Minn. 1999). “When
determining whether a search warrant is supported by probable cause, we do not engage in
a de novo review.” State v. McGrath , 706 N.W.2d 532, 539 (Minn. App. 2005), review
denied (Minn. Feb. 22, 2006); State v. Velishek, 410 N.W.2d 893, 896 (Minn. App. 1987)
(holding that the trial court erred by conducting a de novo review of a search warrant
affidavit). Instead, an appellate court limits its review to whether the issuing magistrate
“had a substantial basis for concluding that probable cause existed .” State v. Yarbrough,
841 N.W.2d 619, 622 (Minn. 2014) (quotation omitted). “[G]reat deference must be given
to the issuing [magistrate’s] determination of probable cause.” State v. Valento ,
405 N.W.2d 914, 918 (Minn. App. 1987).
I. A sufficient nexus existed between the controlled buy and the search of Yort’s
home.

“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 62 2. “A sufficient ‘nexus’ must be established
between the evidence sought and the place to be searched.” Id. “[T]here must be specific
facts to establish a direct connection between the alleged criminal activity and the site to
be searched.” State v. Souto, 578 N.W.2d 744, 749 (Minn. 1998). But “direct observation
of evidence of a crime at the place to be searched is not required.” Yarbrough, 841 N.W.2d

5
at 622. The requisite “nexus may be inferred from the totality of the circ umstances.” Id.
(footnote omitted). In determining whe ther probable cause exists to conclude that the
evidence sought will be found in the place to be searched, the issuing magistrate considers,
among other things : “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.
Yort argues there is an insufficient nexus between the controlled buy and the search
of his home because he is not a drug wholesaler. The entire record shows that a sufficient
nexus existed.
The officers had more information connecting the search warrant to Yort’s home
than simply Yort’s status as a drug dealer. Officers observed Yort return to his Minneapolis
home immediately following the controlled buy, which also occurred in Minneapolis. It is
reasonable for the issuing magistrate to infer that Yort would have more controlled
substances in his home. These facts contrast with a situation in which a defendant sells
controlled substances miles away from his or her home and officers never observe the
defendant near the defendant’s home. See, e.g., State v. Kahn, 555 N.W.2d 15, 19 (Minn.
App. 1996) (concluding that possession of one ounce of cocaine 75 to 85 miles from the
defendant’s home did not establish a nexus to the defendant’s home sufficient for issuance
of a warrant).
The affidavit also indicated Yort brought the proceeds from the controlled buy to
his house after the sale —officers observed Yort drive directly home after the controlled
buy. Because the money from the controlled buy was evidence of the crime and Yort

6
returned home immediately after the buy, it was reasonable for the issuing magis trate to
infer that evidence of the crime would be found in Yort’s home.
II. The probable cause was not stale when the warrant was executed.

Yort contends that the information in the warrant was stale when the warrant was
executed—approximately six to nine days after the controlled buy.
Whether a delay in executing a search warrant is
unconstitutional depends on whether the probable cause recited
in the affidavit still exists at the time of execution of the
warrant—that is, whether it is still likely that t he items sought
will be found in the place to be searched.

State v. Yaritz, 287 N.W.2d 13, 16 (Minn. 1979). “In general, a single incident of criminal
activity, such as a sale of contraband, ‘will support a finding of probable cause only for a
few days at best.’” State v. Ward, 580 N.W.2d 67, 72 (Minn. App. 1998) (quoting State v.
Cavegn, 356 N.W.2d 671, 673 (Minn. 1984) (citation omitted)). But there is no “arbitrary
time limit or . . . a rigid formula” for determining “whether the probable cause underlying
a search warrant has grown stale.” State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005),
review denied (Minn. Mar. 29, 2005). Rather, we examine the circumstances of each case.
State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14,
1985). Relevant circumstances “include whether there is any indication of ongoing
criminal activity, whether the articles sought are innocuous or incriminating, whether the
property sought is easily disposable or transferable, and w hether the items sought are of
enduring utility.” Souto, 578 N.W.2d at 750.
The time between the controlled buy and the search is unclear. The affidavit states
that “within the past 72 [hours]” —meaning the 72 hours prior to the February 2 warrant

7
application—Officer Smith conducted the control buy with the informant . The search
warrant was executed on February 8. Thus , the search warrant was executed between six
to nine days after the controlled buy. This difference between six and nine days is
irrelevant to the outcome. Even assuming there was a nine-day gap between the controlled
buy and the execution of the search warrant, other circumstances show that the probable
cause was not stale.
Yort first argues that because officers observed only one controlled buy before the
warrant was issued, there is no evidence that Yort was involved in ongoing criminal
activity, making the probable cause stale at nine days. The controlled buy, however, was
not the only evidence recited by the affiant. The affiant also stated that the officer was
investigating Yort for selling large quantities of methamphetamine and that Yort has two
convictions in 2015 for controlled-substance crimes. This implies that Yort was involved
in an ongoing criminal operation.
Yort contends that the affiant’s statement that Yort was selling large amounts of
controlled substances is conclusory because it offers no source for the information. The
supreme court has declined to consider vague or conclusory statements in search -warrant
affidavits. See, e.g., Souto, 578 N.W.2d at 749 (holding that “the officer’s statement that
‘he [knew]’ that Souto was involved in the possession and/or distribution of drugs on a
wide scale was too vague and conclusory to bolster the state’s positi on that Souto was a
drug dealer”) (alteration in original) ; State v. Doyle , 336 N.W.2d 247, 251 (Minn. 1983)
(holding that the value of an affiant’s statement that “he knew” that the defendant had been

8
dealing drugs for several years was diminished because of its conclusory nature and its
failure to indicate the source of the information).
The statements here are not conclusory. Although the affiant’s statement that he
was investigating Yort for selling large amounts of methamphetamine does not indicate the
source of the information, this statement was corroborated by Yort’s conduct during the
controlled buy in w hich Yort sold a first-degree amount of methamphetamine. Because
the statement is corroborated, it bolsters the inference that Yort was involved in an ongoing
criminal operation.
The affiant’s statement that Yort used a white Chevy Tahoe in his drug operation is
also partly corroborated. When officers followed Yort to his home, they observed either
Yort or his accomplice “dig[] through” a white Chevy Tahoe. This statement also bolsters
the inference that Yort was involved in an ongoing criminal operation.
Further, “[a] person’s criminal record is among the circumstances a judge may
consider when determining whether probable cause exists for a search warrant.” State v.
Carter, 697 N.W.2d 199, 205 (Minn. 2005 ). The affidavit notes Yort’s two 2015
controlled-substance convictions. This also strengthens the inference that Yort was
involved in an ongoing criminal operation.
In sum, there was a sufficient nexus between the sale and Yort’s home, and the
probable cause underlying the search warrant was not stale when the warrant was executed.
Therefore, we affirm.
Affirmed.