This opinion will be unpublished and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,
Daniel Arthur Kalm,
Filed March 30, 2004
Dissenting, Randall, Judge
Pine County District Court
File No. K0-02-878
John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John K. Carlson, Pine County Attorney, Peter J. Orput, Special Assistant Pine County Attorney, 315 Main Street South, Pine City, MN 55063 (for respondent)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant challenges his convictions of first-degree and fifth-degree controlled substance crime, arguing that the district court failed to address whether the search warrant application contained sufficient probable cause without unlawfully obtained evidence and abused its discretion in denying appellant’s motion for a mistrial; he also asserts that the evidence was insufficient to support his conviction. We affirm.
Appellant Daniel Arthur Kalm’s friend posted bond for appellant’s release from Hennepin County jail. Hennepin County issued a warrant for his arrest when appellant failed to appear in drug court, and appellant’s friend went to the Hinckley area to look for him. Unable to find appellant at Kalm’s sister Barbara Alle’s residence, his friend contacted the Pine County Sheriff’s Department and told Deputy Daniel Vosika about the warrant. Deputy Vosika had been investigating Alle and her residence for possible methamphetamine manufacture.
Deputy Vosika verified the felony warrant through dispatch and contacted Deputy Scott Grice; the two went to Alle’s residence to look for appellant. When they knocked on the door, several children answered and told the deputies that appellant was in the living room. The deputies followed the children into the house and found appellant sprawled in a chair, apparently under the influence. Appellant identified himself and was placed under arrest. The deputies searched appellant’s person and found a syringe in his pocket that contained a clear liquid with a brown tint.
The deputies then decided to remove the children from the residence. Deputy Grice walked through the main floor of the house to look for other children. In one bedroom, he saw tinfoil on the floor and glass cookware on the bed; he found no other children.
After appellant’s arrest, the deputies obtained a search warrant and searched the residence later that evening. They found numerous items associated with manufacturing methamphetamine. Before they finished the search, a van pulled into the driveway. The van smelled of ammonia, and the driver was identified as Bruce Boyd. Boyd told officers that he had come to the property to see Alle. Officers looked through the van windows and saw four 20-pound LP tanks with blue valves that were later confirmed to contain anhydrous ammonia.
Appellant was subsequently charged with (1) conspiracy to commit first-degree controlled substance crime (manufacture of methamphetamine); (2) first-degree controlled substance crime (manufacture of methamphetamine); (3) fifth-degree controlled substance crime (possession); and (4) conspiracy to commit first-degree controlled substance crime (manufacture of methamphetamine). Prior to trial, respondent successfully moved to amend the complaint and added a charge of attempted first-degree controlled substance crime (manufacture of methamphetamine).
In his omnibus brief, appellant argued that the validity of his arrest warrant had not been proven and that Deputy Grice’s sweep search of the home exceeded the scope of a search incident to appellant’s arrest and was not supported by exigent circumstances. The district court denied appellant’s omnibus motions, finding that the evidence Deputy Grice viewed during his sweep search inevitably would have been discovered when the search warrant was executed.
Prior to trial, appellant moved to limit testimony about his arrest warrant. The district court agreed that Deputy Vosika could testify that he went to Alle’s residence because there was a warrant; he could not testify that he went there because there was specifically a warrant for appellant’s arrest. But Deputy Vosika testified that he went to Alle’s residence to investigate an arrest warrant for an “individual,” that he located the “individual” in the living room, and identified the “individual” as appellant. Defense counsel objected, and the district court gave a curative instruction. At the next break, the district court admonished the prosecutor, and appellant moved for a mistrial. The district court took the matter under advisement to hear the remainder of the testimony.
The jury found appellant guilty on counts (1) and (4) involving conspiracy to manufacture methamphetamine and (3) illegal possession; he was acquitted on counts (2) first-degree manufacture of methamphetamine and (5) attempted manufacture. After the jury returned its verdicts, the district court denied appellant’s motion for a mistrial.
Appellant now challenges the denial of his omnibus motion to suppress, the denial of his mistrial motion and the sufficiency of evidence supporting his convictions.
When reviewing pretrial orders on motions to suppress evidence, appellate courts independently review the facts and determine, as a matter of law, whether the district court erred in not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Appellant argues that remand is necessary because the district court failed to address whether, without the unlawfully acquired evidence, the search warrant application contained sufficient probable cause.
Respondent argues that appellant waived the issue of the warrant’s validity because it was not raised at the omnibus hearing. This court generally will not consider matters not argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Appellant admits that he did not challenge the validity of the search warrant at the omnibus hearing, but argues that his claim that evidence used in the warrant application was unlawfully obtained necessarily implicated the validity of the search warrant itself. Appellant, however, cites to no authority for this proposition. Accordingly, appellant waived consideration of this issue.
Even if appellant had not waived consideration of this issue, remand would not be necessary. “[I]f lawfully obtained information establishes probable cause and, by itself and apart from any tainted information, would have justified issuance of the search warrant, the evidence seized pursuant to the warrant is admitted.” State v. Hodges, 287 N.W.2d 413, 416 (Minn. 1979) (determining whether probable cause existed without remand).
The search warrant application included evidence obtained during prior investigations into possible methamphetamine manufacture at the residence, reports from a confidential reliable informant and a private citizen to the Hibbing Police Department, appellant’s friend’s statement about his arrest warrant and possible methamphetamine activities in Minneapolis, the facts surrounding appellant’s arrest and the syringe found on his person, and information that Alle had several large Rottweilers around the perimeter of the property and a surveillance camera pointing at the driveway. Because there was sufficient probable cause to justify the search, we conclude that remand is unnecessary.
A district court's denial of a motion seeking a mistrial is reviewed for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). Appellant argues that the district court abused its discretion because there is a reasonable possibility that the evidence illegally tainted the verdict.
Prior to trial, the district court granted appellant’s motion to limit testimony about appellant’s arrest warrant. But Deputy Vosika testified that he had gone to the residence to investigate an arrest warrant for an “individual,” who he later identified as appellant. After appellant’s objection, the district court instructed the jury to “make no inference from the fact that there was an active warrant for someone at the house that has been testified about by the officer on the stand.” We presume that jurors followed the district court’s instructions. State v. Leja, 660 N.W.2d 459, 463 (Minn. App. 2003), review granted (Minn. Jul. 15, 2003). Appellant then moved for a mistrial, and the district court reserved a ruling until after the verdict. The jury acquitted appellant of two of the five charges, indicating that the testimony about the arrest warrant was not unduly prejudicial. See State v. Lee, 494 N.W.2d 475, 481 (Minn. 1992) (jury not impassioned where it acquitted defendant of several of the charges). We conclude that the district court did not abuse its discretion in implicitly denying a mistrial.
3. Sufficiency of Evidence
In appellant’s pro se supplemental brief, he claims the evidence was insufficient to support his conspiracy convictions. When considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). Circumstantial evidence is entitled to the same weight as direct evidence, provided the circumstances are consistent with a hypothesis of appellant’s guilt and inconsistent with any rational hypothesis except that of guilt. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.
“[T]he crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.” State v. Tracy, 667 N.W.2d 141, 146 (Minn. App. 2003) (citing State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001)). Appellant argues that the evidence was insufficient to establish an agreement.
A conspiracy agreement need not be established by proof of a formal agreement, but can be inferred from the circumstances. State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002). The agreement required for a conspiracy must be shown by evidence that objectively indicates an agreement. Hatfield, 639 N.W.2d at 376. “[W]here several persons commit separate acts which form parts of a connected whole, an inference of conspiracy—that there was concert in both planning and execution—is permissible.” State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522 (1943).
Appellant’s nephews testified that appellant had been living at Alle’s residence for several months prior to his arrest. Pieces of burned tinfoil were found in Alle’s bedroom during the execution of the search warrant and other items associated with manufacturing methamphetamine were found in the basement where the nephews testified that Alle spent much of her time. One nephew testified that Alle had reinstalled the surveillance camera on the property and that he thought Alle was involved in manufacturing with appellant because she frequently went to the garage to talk with appellant.
When Boyd arrived at the residence on the night the search warrant was executed, his van contained four 20-pound LP tanks filled with anhydrous ammonia. Boyd told the officers that he came to the property to see Alle. Two of the nephews testified that Boyd would visit the residence and talk with both Alle and appellant. Viewing this evidence in a light most favorable to the verdict, the jury reasonably inferred that appellant had an agreement to manufacture methamphetamine with Alle and Boyd. See State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985) (stating evidence need not exclude the possibility of innocence, just make it seem unreasonable). Therefore, the evidence was sufficient to support appellant’s conviction for conspiracy to manufacture methamphetamine.
RANDALL, Judge (dissenting),
I respectfully dissent. Based on the district court’s finding that some of the evidence used to obtain the search warrant was illegally obtained, this case should be reversed and remanded so the district court can determine whether the warrant was valid based upon independent sources.
The district court held that Deputy Grice had exceeded the scope of his initial purpose in entering the house when he conducted a search of adjacent rooms. The district court rejected Grice’s explanation that he expanded his scope based on the belief that other children might be present in the residence. Accordingly, the district court held that the evidence obtained from this search was illegally obtained. But after finding that the evidence was illegally obtained, the district court then held that it was admissible under the “inevitable discovery” doctrine, reasoning that Deputy Grice would have discovered the evidence when the search warrant was executed. This sets the stage for the appeal.
First, it is not in dispute that illegally-obtained evidence, in additional to other evidence, was used to justify the search warrant requested by Deputy Grice.
Under the district court’s reasoning, the illegally-obtained evidence was admissible because it would have been inevitably discovered during the execution of the search warrant. I disagree. Following the district court’s logic, a police officer could violate the Fourth Amendment, obtain evidence during this violation and then use that evidence as part of the basis for a search warrant. If later the illegally-obtained evidence is contested, the evidence would be allowed under the inevitable discovery doctrine, even though the police officer used the illegal evidence as probable cause for his search warrant. This reasoning is incorrect. This reasoning has been analyzed before, and state and federal cases easily tell the district court what it must do after making the determination that the district court made here, namely, that some of the evidence was obtained illegally.
The district court must reevaluate the sufficiency of the search warrant application without consideration of the illegally-obtained evidence. If the district court finds the search warrant valid without consideration of the illegally-obtained evidence, then it may analyze whether the evidence is admissible under the inevitable discovery doctrine. This is a mandatory two-prong step. The district court in this case did not conduct the two-prong step. Rather, it said the evidence was illegally obtained, but it would not be suppressed because it would have been discovered later anyway.
This case calls for the application of the independent source doctrine.
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if the information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.”
State v. Lozar, 458 N.W.2d 434, 438 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990) (quoting Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2536 (1988)) (alteration in original). The Minnesota Supreme Court has found a valid warrant existed where a warrant was based on legally and illegally-obtained evidence, after analyzing whether the warrant was based on independent sources. State v. Hodges, 287 N.W.2d 413, 4155-16 (Minn. 1979). In Hodges, although the search warrant was issued based on legally and illegally-obtained evidence, the court determined that probable cause had been established through the legally-obtained evidence, “by itself and apart from any tainted information” and therefore the taint of the illegally-obtained evidence had been purged. Id. at 416 (emphasis added).
I do not see that, on appellate review, we have any choice in this matter. I suggest we must reverse and remand to the district court so that a determination can be made as to whether the illegally-obtained evidence was part of the basis for the search warrant or whether the search warrant was issued based on independent sources. For the search warrant to be valid, it must be shown that the warrant would have been issued even if Deputy Grice had not exceeded the permissible scope. If there then exists enough independent legally-obtained information to issue the warrant, the taint of the illegally-obtained evidence is purged. The district court did not make this determination. What facts the district court relied on to admit the evidence is a fact question for the district court, not an appellate court.
I dissent and would reverse and remand to the district court so that it can determine whether the search warrant was issued based on independent sources, purging the taint of the illegally-obtained evidence.
 The items included pieces of foil with methamphetamine on them, scales, sandwich bags, plastic bottle with ephedrine tablets soaking in a solution, toluol, pieces of burned tinfoil, address book, mail addressed to Alle, ephedrine tablets, mail addressed to appellant, gas generator tubing, packages of coffee filters, syringe wraps, latex gloves, canning salt, strainer, syringes, muriatic acid, plastic containers of brown sludge, Red Devil lye, and lithium batteries.
 Respondent argues that the district court erred in determining that the evidence obtained during Deputy Grice’s sweep search of the residence was unlawfully obtained, relying on State v. Bergerson, 671 N.W.2d 197, 203 (Minn. App. 2003) (permitting protective sweeps of areas near the place of arrest if a reasonable suspicion of a threat to officer safety), review denied (Minn. Jan. 20, 2004). Because Deputy Grice admitted that they had no reason to believe anyone else was in the residence when he conducted the sweep search, the district court properly determined that the search was unlawful.
 In State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994), this court determined that a defendant did not waive his challenge to the particularity of the search warrant even when it was not specifically raised at the omnibus hearing, distinguishing State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992). But here, like Needham, simultaneous briefs were filed and appellant’s omnibus brief did not raise the issue of whether the warrant was valid without the evidence obtained during the sweep search. Needham, 488 N.W.2d at 296.