This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
John R. Olson,
Reversed and remanded
Blue Earth County District Court
File No. K0-03-963
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant
Attorney General, 1800
Ross Arneson, Blue Earth County Attorney,
John M. Stuart, State Public Defender, Stephen L. Smith, Assistant
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.
this appeal from a conviction and sentence, appellant challenges the district
court’s refusal to suppress the evidence and dismiss the charges. Appellant also argues that the consecutive
sentence violates Blakely v. Washington, 124
On May 5, 2003, police applied for and received a warrant to search appellant’s apartment. The warrant did not describe the items to be seized. Several police officers went to appellant’s apartment to execute the search warrant and served appellant with a copy of the warrant. Upon entering appellant’s apartment, the lead officer determined that they should expand the search to areas adjacent to the apartment, and he told the other officers to wait while he returned to court to obtain an amended warrant. The expanded, amended warrant also failed to include a description of the items to be seized.
While the lead officer was gone, appellant’s acquaintance brought a videotape to the apartment. When the waiting officers asked about the tape, the acquaintance gave it to them. When subsequently viewed by the officers, they learned that the videotape recorded appellant robbing, assaulting, and holding an unidentified man at appellant’s apartment for several hours. As a result of viewing the tape, police began investigating this assault and robbery, and ultimately charged appellant with two counts of aiding and abetting aggravated robbery in the first degree, in violation of Minn. Stat. § 609.245, subd. 1, .05 (2002); aiding and abetting kidnapping, in violation of Minn. Stat. § 609.25, subd. 1, .05 (2002); aiding and abetting assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1, .05 (2002); and aiding and abetting terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1, .05 (2002).
Appellant moved to suppress the videotape as a result of an illegal search and to dismiss the charges. The district court determined that the search was illegal because it lacked a description of the property sought, but it denied the motion to suppress on the ground that the police would have inevitably learned of the crime and discovered the videotape. Appellant then submitted the case to the court based on stipulated facts and the district court found appellant guilty of all charges. Appellant was sentenced to 57 months for aiding and abetting robbery in the first-degree and 21 months for aiding and abetting kidnapping, with the sentences to be served consecutively. This appeal follows.
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. Askerooth, 681 N.W.2d 353, 359 (
In this case, it is undisputed that the search warrant handed to appellant contained no description of the things to be seized. On appeal, the state concedes that the warrant was invalid, that the search of appellant’s apartment was unconstitutional, that the tape should not have been admitted into evidence, and that the convictions should be reversed.
state’s consent to reversal, we have a responsibility to conduct an independent
review of the district court’s decision and the record before reversing its
decision. If the videotape was obtained
during the search, it should be suppressed as “fruit of the poisonous
tree.” Knapp v. Comm’r of Pub. Safety,
610 N.W.2d 625, 628 (
The district court
applied the inevitable discovery doctrine from Nix v. Williams, 467
We agree with the state that the inevitable discovery rule does not apply here. The police recovered the videotape hours after the assault and before the victim had filed any complaint. If the police had not been at appellant’s residence, it is unclear whether they would have ever found the videotape. Because the state did not meet its burden of proving that absent the illegal search it would have discovered the videotape, the district court erred in declining to suppress the videotape.
Reversed and remanded.