This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Michael Paul Padilla,



Filed March 1, 2005


Dietzen, Judge


Norman County District Court

File No. KX-03-104


Thomas A. Opheim, Norman County Attorney, 318 East Main Street, Ada, MN 56510; and


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N


Appellant was charged with manufacturing and possessing a controlled substance, as well as theft of, and tampering with, anhydrous ammonia.  Appellant moved to suppress evidence obtained pursuant to a warrantless search of his parents’ property.  Following a contested omnibus hearing, the district court denied appellant’s motion.  Appellant sought reconsideration of the district court’s order based on his mother’s affidavit, which recanted her previous testimony.  The district court denied the motion to reconsider, the matter proceeded to jury trial, and appellant was found guilty of both controlled-substance offenses but acquitted on the anhydrous-ammonia charge.  We affirm.


            On April 17, 2003, the Polk County Sheriff’s Department received information that appellant Michael Paul Padilla had deposited items used for the manufacturing of methamphetamine on the property of his mother and stepfather, Geraldine and Ken Kesselberg.  Specifically, the information was that appellant had placed garbage bags containing the contraband next to one of the outbuildings on the property.

Upon receiving this information, but without first securing a search warrant, two deputies determined they would visit the property that night and investigate.  The deputies parked their vehicle near the Kesselberg property and entered on foot.  After walking around the property and viewing the exteriors of various outbuildings, they discovered garbage bags containing hoses and filters that were consistent with paraphernalia used in the manufacturing of methamphetamine.  Upon discovering that the bags may have contained contraband, the deputies confiscated the bags and returned to their office.  The contents of the bags were then tested, and the presence of methamphetamine was confirmed.  A warrant was subsequently issued to search the Kesselbergs’ home and outbuildings, as well as appellant’s apartment.

At the omnibus hearing, deputy Randall Sondrol testified that he believed appellant was living in an apartment some distance from the Kesselberg property.  Deputy William Bennett testified that little, if any, of appellant’s personal property was found at the Kesselberg property when the search warrant was executed.  Appellant’s mother, Geraldine Kesselberg, testified that her son did not live with her, but would occasionally stay at the property and leave clothes for her to launder.  Appellent also had some of his bills delivered to the property for his mother to pay.  Ms. Kesselberg noted that appellant “always had to have permission” to stay at the property and that appellant had not stayed at the Kesselbergs’ for approximately two and a half weeks prior to the time of the initial search.  She testified that on April 17 or 18, 2003, appellant had an argument with Mr. Kesselberg, which resulted in appellant being told that he could not stay at their property.  Appellant testified that he maintained a room and personal property at the Kesselbergs’ and that he believed he was free to stay in their home whenever he desired.

Following the omnibus hearing, the district court issued an order denying appellant’s motion to suppress the evidence discovered at the Kesselbergs’ property. Appellant then filed a motion to reconsider, which was supported by an affidavit from Ms. Kesselberg, in which she recanted her testimony from the omnibus hearing.



            Appellant argues that because he had a reasonable expectation of privacy at the Kesselberg property, the district court should have excluded the seized evidence.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  But the district court’s factual findings will not be reversed unless clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Fourth Amendment protections are personal rights that may not be asserted vicariously, Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425 (1978), and a defendant can seek the protections of the Fourth Amendment only if the defendant demonstrates that his rights, and not those of a third person, have been violated by the challenged search or seizure, United States v. Padilla, 508 U.S. 77, 81, 113 S. Ct. 1936, 1939 (1993).  To establish standing for Fourth Amendment purposes, appellant must demonstrate that he had (1) a subjective expectation of privacy and (2) that the expectation was reasonable in light of “longstanding social custom[s] that serve[] functions recognized as valuable by society.”  Minnesota v. Olson, 495 U.S. 91, 95-96, 98, 110 S. Ct. 1684, 1687-89 (1990).

In determining whether appellant had a protected interest in the seized evidence, we must begin by examining whether he had a legitimate expectation of privacy at the Kesselberg property. Respondent contends that appellant did not have a legitimate expectation of privacy in the seized evidence because it was found on a property where appellant was neither living nor staying.  Appellant asserts that he is entitled to Fourth Amendment protection because he often stayed at the Kesselberg property, kept personal belongings there, and received mail there.

Based on the evidence presented at the omnibus hearing, the district court did not err in determining that appellant’s Fourth Amendment protections were not violated by the search and seizure of the items discovered at the Kesselberg property.  Specifically, the testimony of deputies Sondrol and Bennett, as well as appellant’s mother, establishes that appellant was neither living nor residing at the Kesselberg property at the time of the search.  Additionally, Mrs. Kesselberg testified that appellant “always had to have permission” to stay at the property, and appellant had not stayed at the Kesselbergs’ for approximately two and a half weeks.  Based on our review of the record before the district court at the time of the omnibus hearing, we determine that the district court did not err in denying appellant’s motion to suppress the evidence.

Appellant further asserts that the seized evidence was within the curtilage of the Kesselberg property and thus was protected from search and seizure.  Because appellant did not have a reasonable expectation of privacy at the Kesselberg property, we need not reach this issue.


            Appellant also argues that the district court erred in denying his motion to reconsider its omnibus ruling following his mother’s recantation.  This court has previously determined:

Although the rules of criminal procedure do not specifically authorize motions for reconsideration of omnibus rulings, the district court has the inherent authority to consider such a motion. . . . At times, a motion for reconsideration may be the most efficient and preferable course of action, and it can spare parties the time, trouble, and expense of an appeal.


State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn. App. 2002) (citing State v. Montjoy, 366 N.W.2d 103, 107-08 (Minn. 1985) (holding that the prosecutor properly moved for clarification and reconsideration of an omnibus order)).  In recognizing the inherent authority of the district court to reconsider an omnibus ruling, we held that it is within the district court’s discretion to grant or deny a party’s motion to reconsider.  Id.

            Because appellant’s motion to reconsider an omnibus ruling relied on recanted testimony, it is comparable to a motion for a new trial.  Cf. State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000) (stating that the denial of a new trial will not be disturbed absent an abuse of discretion); see Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989) (stating that motions for new trial based on recanted testimony will not be granted unless there are “extraordinary or unusual circumstances”).

Here, the district court held a hearing on the motion to reconsider its previous ruling in light of Mrs. Kesselberg’s affidavit.  Appellant argues that the affidavit requires exclusion of the evidence.  We disagree.  First, the mother’s affidavit gives no explanation for its timing, that is, why it was filed after the district court’s denial  of the motion to suppress, or why she changed her testimony on this crucial issue.  The district court concluded that Mrs. Kesselberg lacked all credibility when she recanted her previous testimony.  Second, other substantive evidence was presented at the omnibus hearing that independently supports the district court’s decision to not suppress the evidence.  We, therefore, find no abuse of discretion.


            In a pro se supplemental brief, appellant alleges that the police executed the warrant on the Kesselberg property using a no-knock provision, or unannounced entry.  But neither the application for search warrant nor the warrant contains an unannounced-entry provision.  Moreover, appellant cites no evidence in the record to suggest that the police actually executed the search warrant on the Kesselberg property without first announcing their entry.  Accordingly, this argument lacks merit.


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