This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1487

 

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Allan DeSchepper,

Appellant

 

 

Filed October 3, 2006

Affirmed
Klaphake, Judge

 

Pipestone County District Court

File No. K2-04-331

 

 

Mike Hatch, Attorney General, Francis C. Ling, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James E. O’Neill, Pipestone County Attorney, P.O. Box 128, Pipestone, MN  55164 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Thomas Allan DeSchepper challenges the district court’s order denying his motion to suppress evidence found pursuant to a search warrant.  Because the deficiencies in the warrant did not prevent the executing officer from locating and identifying the correct premises in a timely fashion, we affirm.

D E C I S I O N

            If the facts are undisputed, the district court’s pretrial suppression decision involves a question of law, which this court reviews de novo.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  “[N]o warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Despite this constitutional requirement that a place be described with particularity, courts are instructed to view warrants in a “commonsense and realistic fashion” and to avoid a “grudging or negative attitude” that would tend “to discourage police officers from submitting their evidence to a judicial officer before acting.”  United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746 (1965).   The purpose of the warrant requirement must be borne in mind: “Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”  Id. at 106, 85 S. Ct. at 744-45 (quotation omitted). 

            The main purpose of the particularity requirement is “to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate.”  State v. Gonzales, 314 N.W.2d 825, 827 (Minn. 1982) (quotation omitted).  The ultimate test of sufficiency of the description is whether “the executing officer can locate and identify the premises with reasonable effort with no reasonable probability that other premises might be mistakenly searched.”  Id.  (quotation omitted). 

            Appellant does not challenge the issuing court’s finding of probable cause, but rather identifies three deficiencies in the warrant: (1) the correction of the address in the warrant by the executing officer; (2) the omission of language required by Minn. Stat. § 626. 14 (2004); and (3) an incorrect date of issuance.  The alteration of the address in the warrant by the executing officer is the most serious of these defects.  Although we cannot condone this alteration, we must bear in mind the dual purposes for requiring warrants:  a review of the facts by a neutral and detached magistrate and the prevention of a search of the wrong premises.  The application, which was attached to the warrant, contained the correct address, but as a result of a typographical error, the warrant contained an incorrect address.  Because the executing officer who applied for the warrant had personal knowledge of the correct premises, there was no risk that he would search the wrong premises.  Under these limited circumstances, the district court did not err by refusing to suppress the evidence.

            Appellant next challenges the warrant’s omission of the language required by Minn. Stat. § 626.14 and the incorrect date of issuance.  The purpose of that statute is to prevent the execution of warrants at night, unless the court determines that successful execution of the warrant is impossible between the hours of 7:00 a.m. and 8:00 p.m.  Here, there was no request and no intent to execute the warrant at night, and the warrant was executed in the mid-afternoon.  And with respect to the incorrect date on the warrant, which was described as a typographical error, there is no assertion that the warrant was untimely, stale, or executed on a day other than October 8, 2004.

            A search warrant is void if the application “includes intentional or reckless misrepresentations of fact material to the findings of probable cause.”  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989).  “A misrepresentation is ‘material’ if when set aside there is no longer probable cause.”  Id.  If the misrepresentation is caused by the reckless or deliberate falsification of information by the averring officer, the warrant is void.  Id.  An innocent or negligent misrepresentation will not cause the warrant to be void.  Id. 

            Although Moore deals with the application rather than the warrant, its reasoning comports with the approach taken to search warrants:  they are to be viewed in light of the totality of the circumstances, with common sense and practicality, in a spirit that supports the preference for warrants over warrantless searches, and in recognition of the fact that they are often prepared by laymen.  Here, the absence of the statutory language and the incorrect date on the warrant did not affect the finding of probable cause or lead to an unreasonable search of the wrong premises.  We therefore conclude that the district court did not err by refusing to suppress the evidence.

            Affirmed.



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