This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Alston Robert Alto,


Filed September 8, 1998

Affirmed, Motion to Strike Denied

Kalitowski, Judge

Cass County District Court

File No. K596867

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

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

Robert M. Wallner, Tom Kuesel, Fuller, Baer, Wallner & Anderson, Ltd., 514 America Avenue, P.O. Box 880, Bemidji, MN 56619-0880 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant Alston Robert Alto challenges: (1) the district court's reopening of the omnibus hearing; and (2) the district court's adoption of the "good-faith" exception to the exclusionary rule. Appellant also made a motion to strike respondent state's argument that if this court reverses the district court's adoption of the good-faith exception, the evidence should not be suppressed because the search warrant was valid. Although we conclude the district court erred in adopting the good-faith exception, because the search warrant was valid, we affirm the district court's denial of appellant's motion to suppress, and deny appellant's motion to strike.


On August 29, 1996, agents from the NET VI Drug Task Force went to appellant Alston Alto's house to perform a "walk-through" search to confirm an informant's story that there was a "marijuana grow operation" at appellant's residence. The next day Agent Yarke applied for a search warrant. In the affidavit, the agent said she received her original information from a confidential, reliable informant. She also said she verified the informant's story when she did a walk through "outside the curtilage" of appellant's house and noticed marijuana growing. The judge issued the search warrant, and later that day the agents conducted a search pursuant to the warrant.

Appellant admitted to growing, giving away, and selling a small amount of marijuana from his property. The officers seized 29 marijuana plants from the grow outside of appellant's home, 12 dry marijuana stalks that appellant said were from the year before, two film canisters with marijuana seeds, and a canister with marijuana residue. They also seized fertilizer, potting soil, and growing agents.

The district court initially suppressed all of the evidence obtained as a result of the search and dismissed all of the charges. The court found conclusory the agent's statement in the affidavit that the walk through was "outside the curtilage" and that it lacked specific facts to support that conclusion. The court also found the statement that the informant was a "confidential reliable informant" to be conclusory and did not provide the magistrate with a sufficient factual basis for a finding of probable cause to issue the warrant.

The state then moved to reopen the omnibus hearing to consider whether the good-faith exception to the exclusionary rule should be applied. The court permitted the hearing to be reopened, did not allow new evidence to be presented, but accepted briefs regarding the good-faith issue. Subsequently, the court issued an order applying the good-faith exception, denying the motion to suppress the evidence, and reinstating the charges. After trial, the district court convicted appellant of all three charged drug offenses.


Appellant contends the district court erred in granting the state's request to reopen the omnibus hearing. We disagree. As the supreme court has stated:

The issue in this case is simply whether the omnibus court itself is free to entertain and grant a motion to reopen made by the state before the state's time to file a pretrial appeal has expired. It seems clear to us that at least in such a situation [the district court had granted the motion to reopen to clarify the earlier order], the court is free to do so.

State v. Montjoy, 366 N.W.2d 103, 107 (Minn. 1985). The Montjoy court also stated that:

"public policy favors correction of errors at the trial level, and a timely motion to reconsider is an appropriate method to be utilized in directing the attention of the trial court to a claim of error."

Id. (quoting People v. Wagner, 427 N.E.2d 985, 986 (Ill. App. Ct. 1981)).

Similarly, the district court here explained that it was remedying its own error:

Although it is extremely rare that an omnibus hearing will be reopened, the Court will do so in this case on the limited issue of the good faith exception to the exclusionary rule because this was not addressed at the omnibus hearing and concerns a legal issue alone. * * * The court will not allow any further evidence or testimony to be presented by either party, however.

The district court's reasoning supports the policy of allowing a court to reopen an omnibus hearing to clarify or correct its order. Because here, the subsequent hearing was limited and no new evidence was accepted, we conclude it was within the district court's discretion to reopen the hearing to address an issue that it failed to address in its first order.


Appellant contends the district court erred in applying the good-faith exception to the exclusionary rule that would permit the admission of evidence seized pursuant to a warrant that is subsequently found to be invalid. We agree.

The good-faith exception was first articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). The Leon exception has not been accepted or applied by a Minnesota court. This court has stated: "We again decline to adopt a good-faith exception, as we believe it is not the province of this court to do so." Minnesota State Patrol Troopers Ass'n ex rel. Pince v. State, Dep't of Pub. Safety, 437 N.W.2d 670, 676 (Minn. App. 1989), review denied (Minn. May 24, 1989). Recently we reiterated this position by stating we were "not in a position to overturn established supreme court precedent" by adopting or applying the good-faith exception to the exclusionary rule. State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).

Following the supreme court, we again decline to recognize the good-faith exception. Thus, we conclude the district court erred in relying on Leon to find the execution of the search warrant here was valid.


Respondent contends that even if we conclude the district court erred in applying the good-faith exception, the district court's order should be affirmed on the basis that the search warrant was valid. Appellant responds that because respondent failed to perfect its own appeal and is not permitted to file a notice of review, this court does not have jurisdiction over this "new" issue. See Minn. R. Crim. P. 28.02 and 28.04 (omitting procedures for cross-appeal of pretrial order by prosecutor); State v. Schanus, 431 N.W.2d 151, 152 (Minn. App. 1988) (holding no "cross-appeal or notice of review is permitted the state when a defendant appeals from a conviction"). Respondent argues the issue is properly raised as an alternative basis for affirming the district court. We agree.

This court has the authority to consider arguments in "the interest of justice." Minn. R. Civ. App. P. 103.04. Here: (1) respondent had no opportunity to make its alternative argument prior to this appeal; (2) respondent was prevented from appealing the district court's suppression order when the district court reopened the hearing and erroneously relied on Leon; (3) the issue of the validity of the warrant has been fully briefed on appeal; and (4) it would require additional litigation for respondent to exercise its right to have this issue reviewed. We conclude it is both in the interest of justice and judicial economy for us to review here the district court's determination that the warrant was not valid. Therefore, we deny appellant's motion to strike respondent's argument on this issue.


[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). This court gives "great deference" to an issuing judge's determination of probable cause. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). "[W]e are simply to ensure that the issuing judge had a `substantial basis' for concluding that probable cause existed." Id.

Minnesota has adopted the U.S. Supreme Court's "totality of the circumstances" test for determining whether probable cause exists. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). Under this test, "the reviewing court is not to review each component of the affidavit in isolation but is to view them together." State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990). The magistrate is to make a "practical, common-sense decision," Wiley, 366 N.W.2d at 268 (citations omitted), which a reviewing court may not undermine by engaging in a "hypertechnical examination of the affidavit." State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996).

Here, the district court disagreed with the probable-cause determination of the issuing magistrate. Giving proper deference to the issuing magistrate, we conclude there was sufficient probable cause under the totality of the circumstances to issue the search warrant. The informant's record of reliability is not dispositive because the officers did not rely solely on the informant's tip, but corroborated it with their own investigation. Importantly, in the warrant application the officers more specifically described the facts surrounding their use of the term "outside the curtilage":

Agents observed in plain view several marijuana plants, located growing near a white outbuilding on that property. After observing these marijuana plants, Special Agents exited the area. Closer observation of this marijuana was not obtained in order to protect subject Alto's curtilage area.

We conclude: (1) the district court erred in invalidating the search warrant on the grounds that the officers failed to establish the reliability of the informant and used the conclusory term "curtilage" to indicate that their investigation did not violate appellant's constitutional rights; and (2) there was sufficient probable cause to issue the search warrant. Because the district court erred in applying Leon, we affirm the district court's denial of appellant's motion to suppress on alternative grounds.

Affirmed, motion to strike denied.