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This opinion will be unpublished and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
A19-0336

State of Minnesota,
Respondent,

vs.

Billy Gene Hunt,
Appellant.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Sherburne County District Court
File No. 71-CR-17-1823

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

Kathleen A. Heaney, Sherburne County Attorney, Samuel Wertheimer, II, Chief Deputy
County Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from convictions of first-degree possession of narcotics and
first-degree sale of narcotics, appellant argues that (1) the district court erred by admitting

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evidence of drugs found in his home because the search warrant lacked probable cause and
(2) the state failed to provide sufficient evidence to properly calculate his criminal-history
score under Minnesota law when it included multiple out-of-state burglaries committed the
same day. We affirm in part, reverse in part, and remand.
FACTS
On September 18, 2017, a confidential informant (CI) tipped police that appellant
Billy Gene Hunt had “maybe a quarter pound” of methamphetamine at his residence. The
CI had purchased methamphetamine from appellant previously, typically in appellant’s
residence. On December 5, 2017, a district court judge authorized a search warrant to
search appellant’s residence. On December 7, 2017, the police executed the search
warrant, seizing drug paraphernalia, $23,812, and over 470 grams of narcotics.
The State of Minnesota charged appellant with four counts: two counts of felony
first-degree aggravated controlled -substance crime, one for sale of narcotics and one for
possession of narcotics, in violation of Minn. Stat. § 152.021, subd. 2b(2) (2016); felony
first-degree controlled -substance sale in violation of M inn. Stat. § 152.021, subd. 1(1)
(2016); and first-degree controlled -substance possession in violation of Minn. Stat.
§ 152.021, subd. 2(a)(1) (2016).
Appellant filed a motion to suppress the evidence police seized from his house. The
district court den ied appellant’s motion, determining that the CI provided reliable
information on appellant’s drug trafficking sufficient to establish probable cause for the
search warrant and to establish appellant as a wholesaler, which demonstrated a sufficient
nexus between the drugs and appellant’s residence.

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Appellant proceeded with a court trial on stipulated evidence to preserve his
challenge to the pretrial search-warrant ruling on appeal. See Minn. R. Crim. P. R. 26.01,
subd. 4. The district court found appellant guilty of all four counts and sentenced him to
158 months in prison. The preplea sentencing worksheet assigned appellant 14 of his 16
criminal-history points based on third-degree burglary convictions from Iowa. This appeal
follows.
D E C I S I O N
I. The district court did not abuse its discretion by concluding that probable
cause supported the warrant to search appellant’s residence.

Appellant argues that the district court should have suppressed the evidence of drugs
found in his residence based on speculative and stale evidence that failed to establish a
sufficient nexus between his drug activity and his home. We disagree.
We review the issuing of a warrant “only to consider whether the issuing judge had
a substantial basis for concluding that probable cause existed. ” State v. Rochefort , 631
N.W.2d 802, 803 (Minn. 2001) . In determining whether a substantial basis exists, “the
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).
The constitutions of the United States and Minnesota both guarantee people the right
“to be secure in their persons, houses, papers, and effects” against “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Police may not conduct a

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search without first obtaining a valid search warrant issued by a neutral and detached
magistrate. State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014). Search warrants must
be supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Probable
cause requires the issuing judge to determine that there is a fair probability that contraband
or evidence of a crime will be found in the location to be searched . Illinois v. Gates, 462
U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).
A. A sufficient nexus connected appellant’s drug activity to his residence.

Appellant argues that facts connecting his residence to drugs were “too speculative.”
We disagree.
The issuing judge may infer a nexus between a crime and a residence from the
totality of the circumstances, including the type of crime alleged, the nature of the items
sought, and “the normal inferences as to where the defendant would usually keep the
items.” Yarbrough, 841 N.W.2d at 623. It is reasonable to infer that drug wholesalers, as
opposed to casual users, keep drugs at their residences. Id. at 623-24; State v. Harris, 589
N.W.2d 782, 789 (Minn. 1999). The Minnesota Supreme C ourt defines the term “drug
wholesaler” as someone who “deal[s] in large quantities” of drugs. Novak v. State, 349
N.W.2d 830, 832-33 (Minn. 1984). Here, the issuing judge considered evidence supporting
the inference that appellant was a drug wholesaler. Further, the CI previously purchased
methamphetamine from appellant , and “the deals typically ha ppen[ed] in [appellant’s]
residence,” which establishes a clear nexus to appellant’s residence. See State v. Cavegn,
356 N.W.2d 671, 674 (Minn. 1984). Based on these facts, we conclude that the issuing

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judge reasonably inferred that appellant kept drugs at his residence. See Yarbrough, 841
N.W.2d at 623-24; Cavegn, 356 N.W.2d at 674.
Appellant nevertheless argues that we should follow State v. Souto, a supreme court
case finding an insufficient nexus between dru g activity and the defendant’s home even
though the defendant purchased drugs and communicated with a known drug dealer, and
the post office intercepted a drug package mailed to her home. 578 N.W.2d 744, 749
(Minn. 1998). Appellant’s argument is not persuasive. In Souto, unlike here, “the affidavit
. . . did not indicate that [the defendant] ever arranged drug deals, sold, or distributed drugs,
much less that she performed such acts from her home.” Id. at 748.
B. Probable cause did not rely on stale evidence.

Appellant argues that stale facts connected drugs to his residence because nearly
two months passed between when the state received the CI’s tip and when it executed the
search warrant. Appellant’s argument is misguided.
Stale information cannot establish probable cause. State v. Jannetta, 355 N.W.2d
189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). 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 there is no “arbitrary time limit[]” or “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). We must examine the circumstances of each case. Jannetta, 355
N.W.2d at 193. Relevant circumstances include “indication[s] of ongoing criminal

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activity,” which remain fresh for a longer period of time than a single instance of criminal
conduct. Souto, 578 N.W.2d at 750. For an investigation of repeated sales of drugs, a span
of weeks from the initial information of illegal activity does not render a warrant
application stale. Cavegn, 356 N.W.2d at 673.
Here, the affidavit provided an indication of ongoing criminal activity . See Souto,
578 N.W.2d at 750. Moreover, an ion swab of appellant’s door handle on December 5,
2017, tested positive for methamphetamine, after a swab from October 9, 2017 tested
negative, providing additional support for the inference of ongoing criminal activity. See
id. The state also provided information consistent with an investiga tion of repeated sales
of drugs . See Cavegn, 356 N.W.2d at 673. Probable cause was not stale and instead
supported the district court judge issuing the search warrant. We conclude that the issuing
judge had a substantial basis for concluding that probable cause existed.
II. The district court abused its di scretion by sentencing appellant without
categorizing the felonies listed in the presentence investigation.

Appellant argues that the preplea sentencing worksheet contained insufficient
information to determine whether the district court properly increased appellant’s criminal-
history score based on multiple offenses from Iowa that occurred on the same day and may
have been part of the same behavioral incident. We agree.
We review a district court ’s determination of a defendant ’s criminal-history score
for an abuse of discretion. State v. Stillday , 646 N.W.2d 557, 561 (Minn. App. 2002),
review denied (Minn. Aug. 20, 2002). But we review construction of sentencing guidelines
de novo. State v. Maurstad , 733 N.W.2d 141, 148 (Minn. 2007). “The State bears the

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burden of proof at sentencing to show that a prior conviction qualifies for inclusion within
the criminal history score.” Williams v. State, 910 N.W.2d 736, 740 (Minn. 2018). The
state must prove by a preponderance of the evidence that the offenses did not occur as part
of a single behavioral incident. State v. Outlaw , 748 N.W.2d 349, 355-56 (Minn. App.
2008), review denied (Minn. July 15, 2008). Whether multiple offenses arose from a single
course of conduct presents a question of fact th at we review for clear error. State v.
Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001). But when the facts are not
disputed, we review the question de novo. Id.
The Minnesota Sentencing Guidelines provide uniformity by calculating criminal-
history scores with regard to an out-of-state conviction by reevaluating the designation of
the offense under Minnesota law in a standard manner. See Minn. Sent. Guidelines 2.B.5
& cmt. 2.B.502 (Supp. 2017); Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992). Under this
standard, the district court must determine “how the offender would have been sentenced
had the offense occurred in Minnesota at the time of the current offense. ” State v. Reece,
625 N.W.2d 822, 825 (Minn. 2001). The district court may count an out-of-state offense
as a felony “only if it would both be defined as a felony in Minnesota, and the offender
received a sentence that in Minnesota would be a felony -level sentence. ” Minn. Sen t.
Guideline 2.B.5(b).
Determining whether multiple offenses arose out of a single behavior incident
requires the district court to consider the time and place of the offenses and whether a
defendant was motivated by a single criminal objective. State v. Bookwalter, 541 N.W.2d
290, 294 (Minn. 1995). Merely because the “crimes were committed within a short time

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span and within the same area does not mean the single behavioral incident prohibition is
violated.” State v. Thomas, 352 N.W.2d 526, 529 (Minn. App. 1984), review denied (Minn.
Oct. 11, 1984).
Here, we cannot assess the accuracy of appellant’s criminal-history score based on
the record before us . Nor does the record allow us to assess de novo the district court’s
interpretation of the sentencing guidelines or to review its interpretation of whether
appellant’s actions fell under a single course of conduct. See Maurstad, 733 N.W.2d at
148; Marchbanks 632 N.W.2d at 731.
Because the record is insufficient to resolve these issues, we reverse and remand for
further consideration. On remand, the state must develop the sentencing record to enable
the district court to determine whether the state can meet its burden of proving by a
preponderance of the evidence that the out -of-state offenses would be considered felonies
in Minnesota and whether the sentence appellant received in Iowa would be a felony-level
sentence in Minnesota. See Outlaw, 748 N.W.2d at 356.
Affirmed in part, reversed in part, and remanded.