This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Anthony Michael Truesdell,



Filed November 30, 2004


Randall, Judge


Dakota County District Court

File No. K0-03-3198


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN  55033  (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724  (for respondent)

            Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


On appeal from a pretrial order dismissing one count of the complaint charging fifth-degree controlled substance crime, the state argues that the district court clearly erred in ruling that the trace amount of methamphetamine found in respondent’s possession could not provide “probable cause” to support a criminal charge.  The controlling statute does not specify any minimum quantity necessary to support the charge of fifth-degree controlled substance crime.  We are construing a pure rule of law rather than a factual dispute.  We reverse.


            On September 25, 2003, an apartment employee observed a man, later identified as respondent Anthony Michael Truesdell, crouching and hiding by a dumpster.  The employee notified police, and Officers Sweeny and Stevens arrived at the scene shortly thereafter.  The employee informed Officer Sweeny that respondent had walked around one of the buildings and appeared to be concealing something.  The officers subsequently located respondent and detained him. 

            After detaining respondent, Officer Sweeny noticed a glass light bulb in respondent’s pocket.  Based on his experience, Officer Sweeny believed that the light bulb was a controlled substance pipe, and removed it from respondent’s pocket.  When confronted by the “pipe,” respondent admitted that he had used the light bulb to smoke methamphetamine near the dumpster.  Subsequent lab results found trace amounts of methamphetamine on the light bulb.   

            Respondent was charged with controlled-substance crime in the fifth-degree and possession of drug paraphernalia.  Respondent moved to dismiss the felony charge of controlled-substance crime in the fifth-degree based on a lack of probable cause.  After a number of continuances, an omnibus hearing was held on May 5, 2004.  Because the state failed to receive notice that respondent had raised the probable cause issue, the state requested a continuance so it could prepare a brief on that issue.  The district court denied the motion and dismissed the charge of felony controlled-substance crime in the fifth-degree for lack of probable cause.  This appeal followed.


I.          Probable Cause

When the state appeals a pretrial order under Minn. R. Crim. P. 28.04, this court should reverse only if the state clearly and unequivocally shows that the district court erred in its judgment, and that, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001).  Because the felony charge of controlled-substance crime in the fifth-degree in this case was dismissed, the critical impact requirement is satisfied.  See id. (stating that critical impact requirement is satisfied if there is dismissal of a complaint).  The state may not appeal from a pretrial dismissal for lack of probable cause if the dismissal is based on the facts.  Minn. R. Crim. P., 28.04, subd. 1(1)(a).  But the state may appeal a dismissal for lack of probable cause that is based on a purely legal determination.  State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).  We review de novo a district court’s dismissal for lack of probable cause if based on a legal determination.  State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). 

The state argues that the district court erred by dismissing the charge for lack of probable cause because a trace amount of a controlled substance can support a criminal charge.  We agree.  In State v. Dill, 277 Minn. 40, 151 N.W.2d 413 (1967), the defendant appealed his conviction of the unlawful possession of a narcotic drug.  The Minnesota Supreme Court held that the small marijuana particles found in the defendant’s pockets were sufficient to sustain his convictions even though the amount was unusable.  Id. at 43, 151 N.W.2d at 415.

Similar to Dill, the defendant in State v. Siirila, 292 Minn. 1, 193 NW.2d 467 (1971) was convicted of possessing marijuana based on less than 20 milligrams of marijuana found in his jacket.  On appeal, the defendant argued that possession of an unusable quantity of marijuana does not constitute a crime.  Siirila, 292 Minn. at 4, 193 N.W.2d at 470.  The court held:

It is apparent that the legislature reduced the crime of possession of a small amount of marijuana as defined above from a felony to a gross misdemeanor but it did not declare possession of an unusably small amount no crime at all. It follows that under the new law possession of even a small amount of marijuana is still a crime. 


Id. at 7, 193 N.W.2d at 471.

            Finally, Minn. Stat. § 152.025, subd. 2(1) (2002), the statute under which respondent was charged, states that a person is guilty of a controlled substance crime in the fifth degree if:  “the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana.”  The statute does not specify a minimum amount of methamphetamine that must be present to support a conviction for fifth-degree controlled substance crime.  Notably, Minn. Stat. § 152.023, subd. 2(1) (2002) (controlled-substance crime in the third-degree), Minn. Stat. § 152.022, subd. 2(1) (2002) (controlled-substance crime in the second-degree), and Minn. Stat. § 152.021, subd. 2(1) (2002) (controlled-controlled substance crime in the first-degree) all set forth a specific amount that is necessary in order to sustain the charge.

Here, respondent concedes that the trace amount of methamphetamine found on his “pipe” can be the basis for a felony charge.  If there was any kind of factual determination to be made as to whether the trace amount was actually a controlled substance or if there was any factual dispute as to the possession of the glass light bulb, or any other factual matter, depending on the weight and credibility given it by the fact-finder, there would be no appeal by the state from the pretrial dismissal.  See Minn. R. Crim. P., 28.04, subd. 1(1)(a).  Respondent did not dispute possession of the glass light bulb nor did he dispute the claim that the pipe contained a trace amount of methamphetamine.  Respondent simply argues that the district court was right in dismissing the case because the only provable amount was a “trace amount.”  Minn. Stat. § 152.025, subd. 2(1) does not specify a minimum amount of methamphetamine that must be present to support a conviction for fifth-degree controlled-substance crime.  We understand the district court’s concern over the state’s fascination with a “de minimus” setting.  Nevertheless (albeit reluctantly), we conclude the district court erred by dismissing the charge because the substance was just a “trace amount.”  For the low level crime charged, a trace amount can support that charge, if the state chooses to bring it.

II.        Contested Omnibus Hearing


            In its notice of appeal, the state originally asserted that the district court erred by denying its request for a contested omnibus hearing and a continuance so the state could file a memorandum of law with respect to the probable cause issue.  A ruling on a request for continuance is within the district court’s discretion, and the denial of a motion for a continuance will not be reversed absent a clear abuse of that discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).

            Respondent prevailed at the trial court level.  The state, which initially challenged the lack of a continuance, dropped that objection in its brief, and put it on the record that the lack of a continuance was a non-issue.  The state now wants to the case to go forward on the merits.  Respondent, on the other hand, is willing to settle for a remand.  We understand respondent’s request to be, “do nothing if you affirm, but if you are thinking about reversing, I would like another shot through remand.”  Although we understand respondent’s position, the record is sufficient to decide the case on the merits; as noted, the state has withdrawn any objection to its not getting a continuance.     

III.       Due Process

            Respondent also contends that Minn. Stat. § 152.025, subd. 2(1) (2002) is unconstitutional.  Generally, a defendant in a criminal case does not have an independent right to review of pretrial evidentiary rulingsState v. Kvale, 352 N.W.2d 137, 140 (Minn. App. 1984) (emphasis added).  Minn. R. Crim. P. 28.04, subd. 3, provides that a defendant may obtain review of pretrial orders that adversely affect him when the prosecuting attorney appeals a pretrial ruling.  This rule does not create an absolute right to review.  State v. Kim, 374 N.W.2d 814, 816 (Minn. App. 1985).  Rather, the rule gives this court discretion to review a defendant’s claims when the prosecution appeals.  Id.  Since respondent did not raise this issue with the district court and failed to file a notice of cross-appeal, we conclude this is not a proper setting for discretionary review of the important issue of a challenge to the constitutionality of a state criminal statute.  The issue is not properly before this court and we decline to address it.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.