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State v. Olson2/12/1998
valid even though there was no evidence the gun, after purchase, had ever been taken out of the car the purchaser had left the store in. See Metzner at 804-05. This Court in Metzner concluded the fact the gun could be elsewhere did not change the fact the magistrate could reasonably have concluded the weapon was probably in Metzner's mobile home:
"A magistrate considering the affidavit at issue here could logically conclude that a person would keep a rifle in his house. This would be particularly true of a convicted felon who would logically be concerned that his possession of the weapon remain secret. If, as the district court appears to suggest, there is some significance to be drawn from its determination that the rifle might just as logically have remained in the car, it is sufficient to say that the magistrate might well have concluded that a convicted felon would more logically secret a rifle in his home, than in his car which carries a considerably diminished expectation of privacy and is more readily open to legitimate search by the authorities with a wider variety of justifications."
Metzner at 805; see State v. Frohlich, 506 N.W.2d 729, 733-34 (N.D. 1993) (discussing Metzner). This case is similar to Metzner; however, the nexus in this case is stronger. See Mische at 422 ("omething additional and more objective than the facile Conclusion that contraband is ordinarily kept in the home should be required to establish probable cause to search that home . . . ."). The magistrate, knowing Olson's criminal history, his path from and connection to the Days Inn, and the fact .357 ammunition, but not a .357 handgun, was found in the car Olson was driving, could reasonably have concluded a .357 handgun was probably in Olson's hotel room.
[ ] Probable cause, as the name implies, requires probability, not certainty. See, e.g., Metzner at 804. The use of a search warrant is favored, see, e.g., Johnson at 279, and because there is no bright line test by which to Judge the sufficiency of an affidavit "we choose to resolve . . . doubt in favor of sustaining the search, and the judgment of the magistrate." Metzner at 805; see also Erickson at 559. Under the facts of this case as stated in the affidavit, the totality of the circumstances establishes probable cause for the issuance of the search warrant.
IV.
[ ] The order of the trial court suppressing evidence is reversed.
Neumann, Justice, Concurring and Dissenting.
[ ] I concur in the first parts of the majority's opinion reversing suppression of the evidence discovered in the searches of the passenger compartment and the trunk of Olson's automobile. I dissent, however, from part III.B., holding the agent's affidavit demonstrated a sufficient nexus with Olson's motel room to support issuing a warrant for its search. I do not think a nexus was shown. In my opinion, this case is more of a Mische than a Metzner. I would affirm suppression of the evidence seized in the search of the motel room.
[ ] William A. Neumann
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