This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Terrance L. Morris,


Filed September 9, 1997


Crippen, Judge

Cass County District Court

File No. K195953

Hubert H. Humphrey, III, State Attorney General, Todd P. Zettler, Assistant Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Earl E. Maus, Cass County Attorney, P.O. Box 3000, Walker, MN 56484 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.



Following a conviction and sentence for fifth-degree possession of a controlled substance seized during execution of a search warrant, appellant contends (a) that execution of the warrant failed to conform to mandates of statute and the constitution and (b) that the trial court abused its discretion by assessing prosecution costs without a finding on his ability to pay. We affirm.


On September 22, 1995, a deputy sheriff executed a search warrant and found a controlled substance. To support his motion to suppress the fruits of the search and seizure, appellant points out that (a) a judge in Crow Wing county issued the search warrant but it was executed in Cass County; (b) the officer did not hand him the search warrant; (c) the search warrant was not returned to the court that issued the search warrant; and (d) the officer violated a treaty. He also contends that restraint imposed upon him during the search rendered the process unreasonable and unconstitutional.

The search warrant was issued to a police officer who was deputized in both Cass and Crow Wing Counties. The warrant named a location in Cass County.

Appellant was convicted of fifth-degree possession of a controlled substance. The trial court stayed his five-year sentence on the condition that he serve 30 days in the Cass County jail and pay $750 in prosecution costs.


1. Search warrant statutes

Generally, absent a violation of constitutional nature, Minnesota courts hold that technical violations in the execution of search warrants are not sufficient to suppress the fruits of a search warrant. State v. Lien, 265 N.W.2d 833, 841 (Minn. 1978); State v. Lunsford, 507 N.W.2d 239, 243 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993). The Lien court reversed suppression of evidence seized during a nighttime search, holding that the procedure violated a state statute but that it was not of a constitutional nature and constituted a mere technicality where it was shown that the search occurred early enough in the evening so that the occupants were still clothed and active. 507 N.W.2d at 243. Lien governs here because all four statutory violations are technical in nature. As a result, we affirm.

Appellant contends that the issuing court was empowered only to permit a search in the county where the judge was sitting. See Minn. Stat. §§ 626.11 (1996) (empowering a judge to issue a search warrant "to a peace officer in the judge's county"), 626.13 (1996) (stating that search warrant may be served anywhere "within the issuing judge's county").[1] But the reference to a county judge or "judge's county" is obsolete in Minnesota; district court judges now serve all counties in the judicial district. Minn. Stat. § 487.191 (1996). It is evident under our statutes that a warrant may be issued by any court "having jurisdiction in the area wherein the place to be searched is located." Minn. Stat. § 626.06 (1996). The district court judge in this case had jurisdiction in both Crow Wing and Cass Counties.[2]

Moreover, even if the execution of the search warrant outside the trial judge's venue is a statutory violation, it is, at most, a minor defect or technical violation. We also observe that the courts established the exclusionary rule to deter the police from engaging in illegal searches. City of Minneapolis v. Cook, 498 N.W.2d 17, 20 (Minn. 1993) (holding that the purpose of suppression is to punish the misconduct of police officers in order to persuade them to follow stated procedures, not to vindicate the defendant's rights or affirm the integrity of the courts). The police officer acted in this case in reliance on the act of the issuing judge.

Appellant argues that the officer committed a statutory violation by not handing the search warrant to the appellant. The applicable statute states that the officer who conducts the search "must give a copy of the warrant * * * to the person in whose possession the premises" were found. Minn. Stat. § 626.16 (1996). In this case, the officer placed the copy of the warrant on a table in appellant's home while appellant was present. This is, at most, a technical violation. State v. Mollberg, 310 Minn. 376, 385, 246 N.W.2d 463, 469 (1976) (holding that failure to leave a search warrant is a minor defect or technical violation, which will not render the evidence seized inadmissible).

Appellant also asserts that the officer violated state law by failing to properly return the search warrant. The police must execute and return a search warrant to the court that issued it within ten days after its date. Minn. Stat. § 626.15 (1996). Although there is no documentation to confirm the fact, the officer testified that he returned it in five or six days. The trial court believed his testimony. Even if the officer returned the warrant late, or if it had been lost, the violation would only be technical in nature. Mollberg, 246 N.W.2d at 469 (holding that even though the search warrant was lost, the officers did return the warrant and that, as a result, only a technical violation occurred).

Finally, appellant contends that the warrant process was flawed because it did not meet standards outlined in an 1867 treaty. Appellant is a member of the Mississippi band of Chippewa Indians and resides on the Leech Lake reservation. The treaty states that the sheriff must make a demand upon the federal agent when arresting a member for a criminal act. In a recent case with very similar facts, this court held that the district court had jurisdiction over the appellant. State v. St. Clair, 560 N.W.2d 732, 733 (Minn. App. 1997) (holding that Minnesota's criminal laws have the same force and effect within Indian country as elsewhere; relying on Public Law 280, 18 U.S.C. § 1162(a) (1976)). Public Law 280 abrogates inconsistencies between Minnesota's criminal law and the 1867 treaty. The officer acted in this case on the authority of a search warrant duly issued under Minnesota law.

2. Fourth Amendment

Appellant next argues that the search and seizure violated his Fourth Amendment rights because it was unreasonable. The officers detained appellant for approximately 90 minutes, handcuffed him, forced him to lie on the ground, covered his head with a jacket, and, according to appellant, did not identify themselves upon entrance. During the execution of the search warrant, a limited authority exists to detain the occupants of the premises. Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595-96 (1981); State v. Wynne, 552 N.W.2d 218, 222 (Minn. 1996). This authority is especially important during drug-related cases due to the strong possibility of flight, violence, or destruction of evidence. Summers, 452 U.S. at 705, 101 S. Ct. at 2595.

The trial court believed the officer's testimony that they did announce themselves upon entrance and that their actions were necessary to protect the identity of undercover agents that were present. The trial court is in the best position to judge the credibility of the defendant and other witnesses. State v. Ngoc Van Vu, 339 N.W.2d 892, 898 (Minn. 1983). The search and seizure did not violate the appellant's constitutional rights.

3. Costs

Appellant argues that the trial court abused its discretion by assessing prosecution costs without a finding regarding appellant's ability to pay. See State v. Martinson, 460 N.W.2d 342, 344 (Minn. App. 1990) (mandating findings on ability to pay a fine and surcharge), review denied (Minn. Oct. 25, 1990). The supreme court recently overruled Martinson, stating that a sentencing judge "need not specifically find that a defendant has the ability to pay a fine before imposing the fine as part of the defendant's sentence." Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997). The court reasoned that the fine statute did not require an inquiry and that it would not read such a requirement into the statute. Id.

Although Perkins concerns fines, it applies equally to prosecution costs. Prior cases have held that there is no difference between fines and costs in this respect. Martinson, 460 N.W.2d at 344 ("We find no reason to distinguish between requiring the trial court to determine ability to pay before imposing a fine and before ordering payment of the cost of prosecution."). The prosecution costs statute, like the fines statute interpreted in Perkins, does not require a finding of ability to pay. Minn. Stat. § 631.48 (1996). Thus, the trial court did not abuse its discretion by assessing prosecution costs without a finding on appellant's ability to pay.


[ ]1Appellant contends that the search warrant must be executed in the county issued. But the statutory language does not state that requirement, and we cannot add it as a matter of speculating what the legislature intended to say. Minn. Stat. § 645.16 (1996).

[ ]2 This court has stated that the district courts have greater jurisdiction because the county courts were integrated into them. State v. Loveless, 425 N.W.2d 602, 604 (Minn. App. 1988), review denied (Minn. Aug. 31, 1988). A district court order is enforceable throughout the state, and the district court has original jurisdiction in all civil and criminal cases. Id.