Koochiching County District Court File No. 36-CR-12-598.
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Jeffrey S. Naglosky, Koochiching County Attorney, International Falls, Minnesota (for respondent).
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross., Presiding Judge; Bjorkman, Judge; and Minge, Judge. [*]
A person who possesses a gun cabinet also possesses the guns inside for the purpose of applying the statutes that criminalize being a felon in possession of a firearm, possessing a sawed-off shotgun, and possessing a firearm having an obliterated serial number, Minnesota Statutes sections 609.165, subdivision 1b(a), 609.67, subdivision 2, and 609.667(2) (2012).
Koochiching County sheriff's deputies executing a search warrant easily pried open a gun cabinet in Tommy Salyers's bedroom and found three firearms, including a sawed-off shotgun with its serial number scratched off. A jury convicted Salyers of being a felon in possession of a firearm, possessing a sawed-off shotgun, and possessing a firearm with an obliterated serial number. Because the shotgun was located in Salyers's bedroom—an area where he had exclusive control—and the weak container in which the gun was located left it readily accessible, we affirm the conviction over Salyers's argument that he did not possess the gun. But because the district court sentenced Salyers on three counts that arose from the same conduct, we reverse his sentence in part and remand for resentencing.
Sherriff's Deputy John Kalstad got a tip from a reliable informant in September 2012 that Tommy Salyers, III, possessed stolen hardware and tools in his International Falls home. Deputy Kalstad sought, obtained, and executed a search warrant. Deputies arrived at Salyers's house to find a "No Trespassing" sign posted on the garage, signed by Salyers and S.B. The garage and the house were locked. No one was inside. Deputies entered the house and began searching.
While the deputies searched for the stolen items listed in the warrant, they found a tall, rectangular gun cabinet in Salyers's bedroom. The cabinet was constructed of thin metal, like a file cabinet, and it was locked. Police found a key in the bedroom that fit the lock, but it would not turn. So Deputy Bruce Grotberg got a crowbar from his car and he and Deputy George Gray used it to easily pry open the cabinet.
The deputies found none of the stolen goods inside, but among other things they found a sawed-off shotgun, a youth single-shot shotgun, a pistol, bullets, a wooden box marked "Tom and [S.B.], " and a life-insurance statement for a policy that covered a person named T.K. They found more bullets in a coffee mug near the safe. Those bullets did not fit any gun in the safe. Deputies noticed that the sawed-off shotgun's serial number had been scratched off. They confiscated the guns and left. They never tested any of the items for fingerprints or DNA.
Deputy Grotberg went to Carlton County to interview S.B. in Cloquet. S.B. told the deputy that she had previously shared the International Falls house with Salyers but that she had moved from there to Cloquet a few days before the search. She claimed that she owned the gun cabinet and that the youth shotgun inside belonged to her son.
The state charged Salyers with being a felon in possession of a firearm, possession of a firearm with an obliterated serial number, and possession of a short-barreled shotgun. Salyers moved the district court to suppress evidence obtained during the search, arguing that the search exceeded the scope of the warrant. He argued alternatively that the district court should dismiss the gun charges for lack of probable cause because no evidence proved that the guns belonged to him. The district court found that the deputies lawfully searched the gun cabinet and that the circumstances established probable cause to believe that Salyers possessed the guns.
The state called three witnesses in Salyers's trial. Deputy Kalstad testified that Salyers lived in the home and had no other residence. Deputy Gray testified to what he observed during the search. And Deputy Grotberg testified to what he saw during the search and to what he learned when he interviewed S.B. The jury heard substantially the same facts as summarized above, but with no reference to any stolen items. Salyers moved for a ...