This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Brian Lee Foote,



Filed February 24, 2004


Lansing, Judge


Dodge County District Court

File No. K8-02-234



Mike Hatch, Attorney General, 1800 NCL Tower, Suite 1400, 445 Minnesota Street, St. Paul, MN  55101; and


Paul Kiltinen, Dodge County Attorney, 22 Sixth Street East, Department 91, Mantorville, MN  55955-2210 (for respondent)


Duane A. Kennedy, Suite #3, 724 First Avenue Southwest, Rochester, MN  55902 (for appellant)


            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            In this postconviction proceeding, Brian Foote challenges the district court’s denial of his request to withdraw his guilty plea and vacate his conviction.  Because Foote’s first allegation of legal error was waived by his guilty plea, we affirm the denial on that ground.  But because Foote has alleged facts that if proved would constitute ineffective assistance of counsel and invalidate his guilty plea, we remand to the district court for a determination and, if necessary, an evidentiary hearing, on that ground.



            Brian Foote appeals the district court’s denial of his postconviction request to vacate his conviction of attempted first-degree controlled-substance crime.  Foote pleaded guilty to attempted manufacture of methamphetamine based on evidence discovered in a search of a mobile home that belonged to his friend, an alleged co-manufacturer of methamphetamine.

Foote and his alleged co-manufacturer had moved a mobile home to a lot in Dodge County about a week before the Dodge County sheriff’s office executed a search warrant on the property, seizing items consistent with the manufacture of methamphetamine.  Foote was present when the warrant was executed.

            Both Foote and his alleged co-manufacturer were charged with controlled-substance crime under Minn. Stat. § 152.021, subd. 2a (2000).  The complaint specified the charges as attempted manufacture of methamphetamine and conspiracy to manufacture methamphetamine.  A public defender appointed to represent Foote moved to dismiss the charges for lack of probable cause and to suppress any statements made by Foote.  The attorney did not, however, challenge the search warrant.  About a month later the attorney withdrew from representation of Foote because representation of Foote’s alleged co-manufacturer presented a conflict.  At the time of withdrawal, the attorney wrote a memo to the file that said, “Upon reviewing the documents, the only thing I really saw to challenge was the search warrant.”  The memo concluded, “While I don’t believe that Brian Foote normally would have standing to challenge that search, the warrant includes the search of any persons or vehicles found at John Baker’s residence and, of course, Brian and his car were there.”  Despite the fact that the attorney for Foote’s alleged co-manufacturer challenged the search at the omnibus hearing, Foote’s attorney did not.

Foote’s omnibus hearing was continued at least four times. Foote ultimately pleaded guilty to attempting to manufacture methamphetamine; the other charge was dropped.  Less than three weeks later the district court granted Foote’s alleged co-manufacturer’s motion to dismiss the charges against him, concluding that the search warrant was defective because it lacked the detail and cohesion necessary to establish the requirements of probable cause, failed to establish the credibility of the hearsay information that it relied on, and did not demonstrate a sufficient nexus between the alleged criminal activity, the place of the activity, and the person in the place in order to show probable cause. 

Four months later while Foote’s sentencing hearing was pending, a new attorney was substituted as counsel for Foote.  Foote moved for withdrawal of his guilty plea and dismissal of the complaint.  At a hearing on the motion, Foote testified that he had helped move the mobile home onto the property a week before the execution of the search warrant, that he brought with him a duffel bag that contained most of his clothes, and that he had been “basically living there.”  He was providing rudimentary heat for the home.  He also testified that he had been at the residence all day on the day of the search.  Foote’s testimony about his residence at the trailer was uncontradicted and consistent with the police investigation reports.  The district court denied the plea withdrawal motion, relying on Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469 (1998).

In a postconviction motion, Foote moved to vacate the judgment and dismiss the case based on ineffective assistance of counsel, legal error, and a finding of guilt contrary to law.  The district court denied Foote’s motion to vacate his conviction, and this appeal followed.  The order denying the postconviction motion did not contain findings of fact or conclusions of law.  The state did not file a brief, and this matter proceeds on the merits pursuant to Minn. R. Civ. App. P. 142.03.


A petitioner seeking a postconviction remedy has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2002).  On appeal, the postconviction court’s decision is reviewed under an abuse-of-discretion standard.  State v. Doppler, 590 N.W.2d 627, 632-33 (Minn. 1999).  On factual issues, we determine whether the evidence is sufficient to sustain the postconviction court’s findings; on legal issues, we exercise de novo review.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  “The court shall,” however, “allow a defendant to withdraw a plea of guilty upon a timely motion and proof . . . that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.

Foote essentially argues that he met the manifest-injustice standard, first, by showing that the district court erred in denying his request to withdraw his plea on Fourth Amendment grounds and, second, by showing that his attorney provided ineffective assistance by not challenging the invalid warrant.

Foote’s first argument overlooks the fact that a guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects, including constitutional violations.  State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003).  Thus, by pleading guilty to attempted manufacture of methamphetamine, he waived his right to challenge the constitutional validity of the search that resulted in the charge and conviction.

Foote’s second argument, however, directly addresses the voluntariness of the plea, which calls into question the plea’s validity.  To be valid, a guilty plea must be accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  An involuntary plea constitutes a manifest injustice that entitles a defendant to withdraw a guilty plea.  Butala, 664 N.W.2d at 339; State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).

A guilty plea may be rendered involuntary by the ineffective assistance of counsel.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  “[T]he voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’”  Id. (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985)) (other quotation omitted).  When claims of ineffective assistance of counsel arise from the plea process, appellate courts analyze the claim using the two-part standard developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).  Ecker, 524 N.W.2d at 718.  To receive postconviction relief on a claim of ineffective assistance of counsel, the convicted defendant must affirmatively show that counsel’s performance (a) “‘fell below an objective standard of reasonableness’”; and (b) so prejudiced the defendant that a different outcome would have resulted but for counsel’s errors.  Doppler, 590 N.W.2d at 633 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2052).

Although Foote’s first attorney in a memorandum to the file advanced the opinion that Foote should challenge the search warrant, neither that attorney nor his second attorney raised the issue on Foote’s behalf.  Foote pleaded guilty, ostensibly believing that he did not have a basis to raise the constitutional challenge.  Foote’s alleged co-manufacturer, whose case had been joined with Foote’s for trial, successfully challenged the search warrant and obtained dismissal of both his charges.  The district court concluded that the warrant was defective because it lacked the detail and cohesion necessary to establish the requirements of probable cause, was based on hearsay that may or may not have been credible, and did not demonstrate a sufficient nexus between the alleged criminal activity, the place of activity, and the person in the place in order to show probable cause.  The question of whether Foote could have obtained the same result, but for his counsel’s failure to challenge the search, turns on the issue of whether Foote had standing.

To have standing to invoke the protection of the United States and Minnesota Constitutions against unreasonable searches and seizures, an individual must demonstrate a personal expectation of privacy in the area to be searched and that the expectation is reasonable.  U.S. Const. amend IV; Minn. Const. art. I, § 10; Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998).  In this analysis, courts first focus their inquiry on whether a person, by his conduct, “sought to preserve something as private.”  Bond v. United States, 529 U.S. 334, 338, 120 S. Ct. 1462, 1465 (2000) (quotation omitted).  The courts also must determine whether the expectation in the area searched is one that society recognizes as reasonable.  State v. Tungland, 281 N.W.2d 646, 650 (Minn. 1979).

The United States Supreme Court held that overnight guests have a legitimate expectation of privacy in Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 1690 (1990).  The Court recognized that “[s]taying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society”  and noted that a houseguest’s expectation of privacy does not depend on having a legal interest in the premises or authority to determine who may enter the household.  Id. at 98, 110 S. Ct. at 1689.

Eight years later, the Supreme Courtdeclined to extend the protection of the Fourth Amendment to two defendants who visited an apartment for two-and-one-half hours for the purpose of packaging cocaine.  Carter, 525 U.S. at 85, 119 S. Ct. at 471.  The Court in Carter held that a person “merely present with the consent of the householder” could not claim Fourth Amendment protection, noting that the defendants “were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours.”  Id. at 90, 119 S. Ct. at 473.  The Court concluded that while the apartment was a dwelling place for its resident, for the defendants it was merely a place to do business.  Id., 119 S. Ct. at 474. 

In this case, Foote had lived at the mobile home owned by his alleged co-manufacturer for a week and had all of his clothes there.  He provided rudimentary heat for the home.  He testified that he had been at the home all day on the day of the search.  There appears little doubt that, although he may have participated in some commercial activity during his stay, under the Olson standard he had the status of an overnight guest who should be accorded a reasonable expectation of privacy under the Fourth Amendment.  It is also significant that the warrant was written broadly enough to encompass Foote’s car, which was parked on the premises.  See United States v. Ortiz, 422 U.S. 891, 896, 95 S. Ct. 2585, 2588 (1975) (recognizing constitutionally protected privacy interest in automobiles under federal constitution); State v. Weigand, 645 N.W.2d 125, 131 (Minn. 2002) (acknowledging same interest under Minnesota Constitution).

The Minnesota Supreme Court’s decision in In re Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003) further buttresses Foote’s standing.  In B.R.K., the supreme court held a teenager visiting a house during and after an underage drinking party to be a short-term social guest with a reasonable expectation of privacy in the host’s home, who could thus challenge a search of the premises under the United States and the Minnesota Constitutions.  B.R.K., 658 N.W.2d at 576, 578.  The court focused on the commercial nature of the defendants’ presence in Carter, interpreting Carter as standing for the principle that a person’s expectation of privacy in commercial premises was less than a person’s expectation of privacy in a private residence.  Id. at 575.

Foote has demonstrated that a reasonably competent attorney in these factual circumstances would have asserted Foote’s expectation of privacy to challenge the search on Fourth Amendment grounds.  His attorneys were apparently aware that Foote had a viable Fourth Amendment challenge to the search.  Had his counsel not failed to assert this challenge, Foote would likely have obtained the same result as his alleged co-manufacturer.

The district court made no finding on Foote’s claim of ineffective assistance of counsel.  Because the voluntariness of Foote’s guilty plea is implicated, we remand to the district court for a determination, and, if necessary, an evidentiary hearing on this issue, keeping in mind that the governing standard is that Foote must show with “reasonable probability” that absent his counsel’s errors, he would not have entered his plea.  Ecker, 524 N.W.2d at 718.

Reversed and remanded.