IN COURT OF APPEALS
Cass County District Court
File No. K9-04-238
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*
While a warrantless search of a probationer’s residence, which is consistent with the terms of his probation, does not violate the probationer’s Fourth Amendment right to be free from unreasonable searches, when the probationer is not validly on probation because his right to counsel was not vindicated at a hearing to extend his probation, any evidence obtained as a result of the warrantless search must be suppressed.
O P I N I O N
Appellant argues that his constitutional right to consult with an attorney was violated because he was not advised of his right to counsel in a probation revocation hearing held under Minn. Stat. § 609.14, subd. 2 (2002). After the district court improperly extended appellant’s probation, his probation officer conducted a warrantless search of his residence under the terms of his probation and seized evidence that led to his conviction for a new offense. Because appellant was not validly on probation at the time of the search, any evidence seized at that time or during a later warrant search premised on evidence obtained in the initial search, was obtained illegally and must be suppressed. We therefore reverse.
20, 2001, appellant
On February 10, 2003, appellant agreed to extend his probation for one year because he had not completed the required sex-offender treatment. He was represented by counsel at the probation hearing.
On February 9, 2004, one day before his extended probation was set to expire, the district court held a hearing for the purpose of again extending his probation. Apparently, appellant had still failed to complete his sex-offender treatment within the probationary period. At this hearing, appellant was not advised of the right to counsel or represented by counsel. At the beginning of the hearing, the court stated:
[T]he reason why we are here today is to allow Mr. Kouba the opportunity to rather than be in violation of his probation or get some sort of a warrant or stay, to extend his period of probation for one year from today’s date, to the 9th of February, 2005, in order that he may have an additional opportunity to complete some treatment that he is working on.
Following this hearing, the district court extended appellant’s probation for another year.
Approximately one week later, a Bureau of Criminal Apprehension special agent was administering a polygraph test to appellant as part of appellant’s sex-offender treatment. Just before he was to take the test, appellant admitted that he possessed a videotape of a juvenile masturbating and photographs depicting naked juveniles.
Appellant’s probation officer, Mary Hoglund, was informed of appellant’s admission to a possible probation violation. Hoglund met with appellant and placed him on a 72-hour hold. Consistent with internal policy, Hoglund also sought a police escort before initiating a search of appellant’s residence. Hoglund and Cass County Sheriff’s Office Investigator Mike Diekmann accompanied appellant to his house, where appellant revealed numerous videotapes showing minors in sexual poses and other pornographic materials. Hoglund and appellant participated in the search, with Diekmann merely observing, although at one point he questioned the identity of one of the juveniles who appeared in one of the videotapes. One videotape showed appellant having oral sex with a minor victim. After appellant’s arrest, police requested and obtained a search warrant for appellant’s residence that resulted in the recovery of more pornographic materials.
Appellant was charged with third-degree criminal sexual conduct, use of a minor in a sexual performance, and possession of pornography involving minors under Minn. Stat. §§ 609.344, subd. 1(b), 617.246, subd. 2, 617.247, subd. 4(b) (2002). Appellant brought a pretrial motion to suppress all evidence obtained by the state “on the grounds that such evidence was seized in violation of the defendant’s constitutional and statutory protections against unreasonable searches and seizures.” After an omnibus hearing, the district court denied appellant’s motion to suppress evidence.
agreed to try the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (
On appeal from his conviction, appellant argues that his constitutional rights were violated because the initial search of his house was conducted without a search warrant, and the search was conducted after a probation revocation hearing at which appellant was not advised of his right to an attorney.
When appellant was not advised of his right to an attorney during a probation revocation hearing that resulted in the extension of his probation, did the later seizure of evidence pursuant to the conditions of appellant’s probation violate his constitutional rights so as to require suppression of that evidence?
claims that the district court erred by declining to suppress the evidence
seized in the warrantless entry of his residence. We review pretrial motions to suppress
evidence by independently considering the facts to determine whether the
district court erred in its decision. State v.
Right to Counsel
At the hearing to extend appellant’s probation on February 9, 2004, appellant was not represented by counsel nor was he given the opportunity to have counsel represent him. Because of this, appellant argues that his probation was erroneously extended. We agree.
the Sixth Amendment right to counsel attaches at the “critical stages” of
“a defendant is entitled to representation at a probation revocation
hearing.” State v. Ferris, 540 N.W.2d 891, 893 (
The state asserts that the February 9 hearing pertained to appellant’s probation but did not constitute a probation revocation hearing, so appellant was not entitled to counsel. The district court considered and rejected appellant’s claim in its omnibus order:
The second [February 9, 2004] extension was a voluntary
arrangement so the defendant would not be facing a probation violation. Because this did not constitute an
adversarial proceeding, counsel was not required as would have had there been a
probation violation that had been filed.
Although in a perfect world, counsel would have been present, the Court does not find that jurisdiction was lost in this case because counsel was not appointed for [appellant] prior to his voluntarily extending the period of probation. . . . Although it would constitute better practice to give an advisory, the failure to do so in this case does not divest the Court of jurisdiction[.]
We disagree with the district court’s conclusion that the February 9, 2004 hearing was not a probation revocation hearing.
Minn. Stat. § 609.135, subd. 1c (2002) addresses a probationer’s failure to complete court-ordered treatment, requiring that within 60 days of the expiration of the probationary period the prosecutor or probation officer request “a hearing to determine whether the conditions of probation should be changed or probation should be revoked.” As such, and under the facts of this case, the hearing appellant received was a probation revocation hearing. The purpose of the hearing was to address appellant’s failure to complete his sex-offender treatment, a condition of his probation.
appellant was not afforded the niceties of receiving written notice of his
probation violation and other procedural formalities required by
acknowledge that appellant’s present challenge to the February 9 probation
extension could be viewed as an impermissible collateral attack. Such collateral attacks, however, are allowed
in other instances where the defendant is unrepresented by counsel. For example, for purposes of enhanced penalty
statutes in regard to sentencing, “[w]here a defendant is unrepresented and
there is no record of waiver of counsel, a prior conviction may be collaterally
attacked on constitutional grounds and invalidated in a subsequent
proceeding.” State v. Nordstrom, 331 N.W.2d 901, 904 (
We therefore conclude that because appellant was not advised of his right to counsel at the February 9 hearing, his probation was invalidly extended.
Basis for Warrantless Search
Appellant next argues that because he was not validly on probation, the warrantless search of his residence had no basis. He reasons that without a valid basis to conduct a warrantless search, the evidence obtained during that search must be suppressed. He further argues that because the evidence seized during this search provided probable cause to support the search warrant, any evidence obtained under the search warrant must also be suppressed. We agree.
individual has a reasonable expectation of privacy in his own home, and the warrantless
search of a person’s home is generally prohibited under the
release of Earnest in 1980,
of the tests that have been applied in federal cases or under
when the sole basis for the search rests on the probation agreement and when
that agreement has been extended only after the probationer’s constitutional
rights have been violated, the search itself becomes illegal. Generally, the “fruit of the poisonous tree”
doctrine requires suppression of fruits of a constitutional violation.
Minnesota Supreme Court recently addressed application of the exclusionary rule
in situations where conduct by civil servants or judicial officers, and not
police, gave rise to the illegal seizure of evidence. State
D E C I S I O N
Because the extension of appellant’s probation was ordered after a hearing at which appellant was not offered legal counsel, the evidence obtained solely as a result of this probation extension, and as a result of the warrant subsequently obtained based on this evidence, must be suppressed. Accordingly, appellant’s conviction is reversed.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state asserts that appellant impermissibly challenges the constitutionality of the search because the issue was not raised to or ruled on by the district court. When the district court denied appellant’s motion to suppress the evidence, however, it addressed the issue of whether the search of his residence fell within Fourth Amendment prohibitions. The parties also discussed the facts pertinent to this issue at the omnibus hearing. Because the issue was impliedly raised at the omnibus hearing and was addressed by the district court, we may consider it on appeal. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (in general, defendant who does not raise an issue in district court waives right to raise issue on appeal); Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982) (appellate court can consider constitutional issues not raised to district court when required in interest of justice, when parties had adequate briefing time, and when issues implied at trial).