This opinion will be unpublished and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
State of Minnesota,
Thomas Allan DeSchepper,
Filed October 3, 2006
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.*
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.
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 (
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 (
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.
warrant is void if the application “includes intentional or reckless
misrepresentations of fact material to the findings of probable cause.” State
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.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.