This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Reginald Hughes,
Filed April 1, 2003
St. Louis County District Court
File No. K002600387
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for appellant)
Mary McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Poritsky, Judge.*
The State of Minnesota appeals from a pretrial suppression order that resulted in dismissal of the charges against respondent Ronald Reginald Hughes. Because the arresting officer did not confirm all of the conditions precedent in the anticipatory search warrant, the warrant was not properly executed. We therefore affirm.
On appeal, we will not overturn a district court’s pretrial order unless the state can demonstrate clearly and unequivocally that the district court erred in its judgment and that, if not reversed, the error will critically impact the outcome of the trial. State v. Robb, 605 N.W.2d 96, 99 (Minn. 2000). Where the facts are not in dispute, this court independently reviews a pretrial suppression order to determine whether the evidence must be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). This court looks at the totality of the circumstances to determine whether the conduct of the officers executing the search warrant was reasonable. State v. Thisius, 281 N.W.2d 645, 645-46 (Minn. 1978).
The warrant executed here was an anticipatory search warrant. Such warrants are generally “issued before the item to be seized has arrived at the place to be searched.” United States v. Tagbering, 985 F.2d 946, 949 (8th Cir. 1993) (footnote omitted).
An anticipatory warrant, by definition, is a warrant that has been issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.
United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989).
The district court here issued the search warrant based on the description of the suspect, including his hairstyle. The warrant states that the items to be searched for “(are) (will be) found based upon meeting the condition set forth in fact number seven of the application for this search warrant.” Fact number seven of the application states:
That on April 10, 2002, [Special Agent] Koneczny observes a young adult black male, being in his early twenties, having a very dark complexion, who is approximately 5’10” to 6’0” tall, slim build, having “Jerry [sic] Curled” styled hair to about shoulder length, wearing black pants and blacks [sic] shoes, arrives in Duluth, via the Greyhound bus from Minneapolis/St. Paul.
The state insists that the information in the warrant was sufficient to identify respondent and that the agent confirmed a sufficient number of the descriptive factors to detain respondent, even though his hairstyle at the time he was seized and searched was different.
Generally, courts look at “[p]articularity * * * to ensure the officer can reasonably ascertain and identify the persons to be searched.” State v. Otis, 487 N.W.2d 928, 930 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). The description in the warrant here is general. The hairstyle was the one distinguishing attribute that might have differentiated the suspect from others on the bus. But upon execution of the warrant, respondent’s hair was not styled in Jheri curls, but in cornrows. To validly execute an anticipatory search warrant, the conditions triggering the warrant must be “explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.” Garcia, 882 F.2d at 703-04. The district court issuing this warrant determined that the description, which included a fairly unusual and distinctive hairstyle, was specific enough to justify the warrant. We refuse to speculate whether the court would have found probable cause to issue the warrant without inclusion of the hairstyle in the description.
Because the conditions in the anticipatory search warrant specifically described the hairstyle that the suspect would have, and because respondent did not have that specific hairstyle when he was seized, we affirm the district court’s suppression order and its dismissal of the charges against respondent.