This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Kirk Lieberg,


Filed November 4, 1997


Davies, Judge

Meeker County District Court

File No. K695130

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Michael J. Thompson, Meeker County Attorney, Courthouse, 325 North Sibley Ave., Litchfield, MN 55355 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, E-1314 First National Bank Bldg., St. Paul, MN 55101 (for appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Thoreen, Judge.**

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



Appellant Kirk Lieberg challenges the trial court's finding (on remand) that illegally obtained evidence did not prompt police to apply for a search warrant.

Because the trial court's finding is not clearly erroneous, we affirm that finding and Lieberg's convictions on three counts of burglary in the second degree and three counts of misdemeanor theft.


A partial footprint was found at the scene of a residential burglary in Meeker County. Because appellant Kirk Lieberg was well known in the community for stealing women's underwear, and this was the third burglary in the county in six months in which women's underwear had been taken from a home, officers sought to obtain the shoeprint of Lieberg's shoes. They dumped snow around Lieberg's mailbox, attempted to view his shoe soles by the ruse of approaching his house with a Bible they claimed to have found near his house, and followed Lieberg's car to obtain a shoeprint when he parked. When these attempts failed, the officers initiated a pretextual stop of Lieberg's car and photographed the sole of his shoe. Immediately after matching the photograph of Lieberg's shoe to the partial print found at the burglary scene, police prepared a search warrant application for his home.

On March 1, 1995, the warrant was issued and executed. Women's underclothes were found hidden in various places in Lieberg's bedroom. The police also found tennis shoes with soles that matched the print found at the burglary scene.

Lieberg was charged with three counts of second-degree burglary and three counts of misdemeanor theft. At the omnibus hearing, the trial court suppressed the photograph of the shoe sole, ruling that the police had conducted an illegal search of Lieberg's car. It found, however, that the search warrant affidavit contained probable cause for a warrant, even without the illegally obtained photograph, and therefore the court denied a motion to suppress the evidence found in the later search. Subsequently, a jury convicted Lieberg on all counts. Lieberg then appealed his conviction to this court, arguing (among other things) that the sanitized affidavit presented to the trial court to obtain the search warrant lacked a substantial basis for the determination of probable cause.

In State v. Lieberg, 553 N.W.2d 51, 58 (Minn. App. 1996) (Lieberg I), this court affirmed the trial court ruling that the affidavit accompanying the application for the search warrant contained probable cause for a warrant, even without the illegally obtained photograph. This court remanded, however, for a finding on whether the police would actually have applied for the warrant without the illegally obtained evidence. Id. After an evidentiary hearing, the trial court found that the police would have sought the warrant even without the tainted evidence. Lieberg now appeals that ruling.


The determination of whether the unlawful search prompted police to seek a warrant is a factual determination that this court may not set aside unless clearly erroneous. Lieberg I, 553 N.W.2d at 58 (citing State v. Buchanan, 431 N.W.2d 542, 551-52 (Minn. 1988)).

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures and requires that search warrants be issued only on a showing of probable cause. The exclusionary rule requires suppression of evidence obtained in violation of the Fourth Amendment. Lieberg I, 553 N.W.2d at 55 (citing Murray v. United States, 487 U.S. 533, 536-37, 108 S. Ct. 2529, 2533 (1988)). A defendant should not, however, reap a windfall through the application of the rule. Therefore, if police acquired evidence through a source independent of all illegal law enforcement actions, the evidence is admissible through the "independent source" exception to the exclusionary rule. Id. (citing Murray, 487 U.S. at 536-37, 108 S. Ct. at 2533).

The proper application of the independent source doctrine in a case involving a search warrant involves a two-step analysis:

[T]he trial court must determine (1) whether the decision of the issuing magistrate was "affected" by the tainted information, and (2) whether that information prompted law enforcement officials to seek the warrant.

Id. (citing Murray, 487 U.S. at 542, 108 S. Ct. at 2536).

Because this court in Lieberg I affirmed the district court's ruling that the sanitized affidavit for a warrant contained adequate probable cause for a search of Lieberg's house, step one of the analysis has been satisfied. See id. at 57 (holding sanitized affidavit in support of search warrant sufficient for probable cause).

On remand, the trial court answered step two of the Murray test when it found that "Investigator Richards would have sought the search warrant for defendant's residence even without the unlawfully gathered shoeprint evidence." The trial court added:

The unlawfully obtained evidence was neither the primary motivating factor which led Investigator Richards to seek the warrant, nor was that evidence necessary in order to obtain the warrant.

(Emphasis added.)

Lieberg argues that the trial court applied the wrong standard. Lieberg asserts there is a distinction between the question asked in step two of the Lieberg I analysis, "whether that [illegally obtained] information prompted law enforcement officials to seek the warrant," and the trial court's finding here that the illegally obtained photograph was not the "primary motivating factor" in the law enforcement officials' decision to obtain a warrant.

This language difference is without significance. The plain meaning of these two phrases show that the standard employed by the trial court on remand was substantially similar to both the one it was asked to use by this court in Lieberg I and the one employed by the Supreme Court in Murray. In Murray, the Court stated that the proper question is whether the search warrant "would have been sought even if what actually happened had not occurred." Murray, 487 U.S. at 543, n.3, 108 S. Ct. at 2536, n.3. The trial court's ruling in this case was based on the proper standard and was therefore consistent with Murray. No magic words need be employed in performing the Murray analysis.

In applying that standard, the trial court noted that Investigator Richards stated at the evidentiary hearing that he would have applied for a warrant even without the photograph of Lieberg's shoe. To support his answer, Richards explained:

As I said, [the possible shoeprint match] was like a plum dangling in front of us. It was just right there always out of our fingertips; but, certainly, if we couldn't get it, it wasn't available. We would have tried for the warrant in any case before walking away from this and throwing up our hands.

Investigator Richards' testimony is sufficient to support the district court's finding that the police would have applied for a warrant without the information obtained in the unlawful search.

Lieberg asserts that the shoeprint must have been vital to the police's application for a search warrant because they sought to obtain it numerous times. Although this is one inference that could be drawn from their persistence, it is not the only one. The trial court's finding that the authorities would have sought a warrant even without the suppressed photograph is reasonable, supported by the evidence, and not clearly erroneous.

Lieberg also argues that the evidence gained through the execution of the search warrant in this case must be suppressed because the stop of Lieberg's car was an illegal confirmatory search as discussed in Murray, 487 U.S. at 540-41, 108 S. Ct. at 2534-35. This argument fails, for it is simply a variation on Lieberg's argument that the trial court's finding was erroneous.



Judge Jack Davies

October 23, 1997