This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Emmett Louis Thomas,


Filed May 18, 1999


Short, Judge

Hennepin County District Court

File No. 98000177

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Bradford Colbert, Assistant State Public Defender, Andrew Kremer, Certified Student Attorney, 875 Summit Avenue, Suite 254, St. Paul, MN 55105 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]


SHORT, Judge

Emmett Louis Thomas was charged with second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1996). After a trial, a jury acquitted Thomas on the second-degree intentional murder charge, but found him guilty of second-degree felony murder. The trial court sentenced Thomas to 420 months in prison. On appeal from conviction and sentencing, Thomas argues the trial court abused its discretion in: (1) failing to suppress evidence seized in execution of an invalid search warrant; and (2) departing from the presumptive sentence for second-degree felony murder. We affirm.



Thomas argues the trial court abused its discretion in denying his motion to suppress evidence seized in execution of a search warrant containing a material misrepresentation. See State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (noting appellate court will not reverse trial court's determination of probable cause absent abuse of discretion). But a misrepresentation only invalidates a search warrant if the misstatement is material to the determination of probable cause, and the government agent deliberately or recklessly misrepresented the fact. State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977); see State v. King, 513 N.W.2d 245, 248 (Minn. 1994) (concluding misrepresentation is "material" if, when set aside, probable cause no longer exists).

The warrant used to search Thomas's apartment inaccurately stated the victim's family "received information that [the victim] had gone to Emmett Thomas's apartment in the East 59th Street complex at apartment #304." But the record demonstrates: (1) the victim left his brother waiting in his car around 1:00 p.m. on December 31, 1997, while he ran into the East 59th Street apartment complex; (2) after waiting for two hours, the victim's brother left and later called the victim's friends looking for his brother; (3) Thomas knew the victim, and, approximately one month before the homicide, Thomas hit the victim on the back of his head with a metal skillet during an altercation; (4) the victim's body was found without a jacket in an alley at 5910 Nicollet Avenue South, which is less than one block from Thomas's apartment; (5) police determined the victim was killed in another location and recently moved because the body was warm enough to melt the snow under it but rigor mortis had already set in; (6) Thomas's brother told the victim's family that Thomas lived in the East 59th Street apartment complex; and (7) using internal records and information from the regional electric company, Officer Voss determined Thomas lived at 117 East 59th Street, apartment #304.

Given these facts, we agree the warrant contained a grossly negligent misrepresentation. But we cannot say the trial court abused its discretion in finding affiant did not deliberately or recklessly add the misrepresentation to the search warrant's application. Rather, the affiant mistakenly included his own deduction to the facts supporting the warrant. See State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989) (concluding misrepresentation was not reckless, but negligent use of words by officer inexperienced in drafting warrant applications). Moreover, after redacting the misrepresentation, the facts still establish probable cause to search Thomas's apartment. See State v. Doyle, 336 N.W.2d 247, 252 (Minn. 1983) (emphasizing central issue as "whether one can say, after * * * correcting the misrepresentations, that the affidavit established probable cause"); State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (defining "probable cause"). Under these circumstances, the trial court did not abuse its discretion in denying Thomas's motion to suppress.


Thomas also argues the trial court abused its discretion in departing from the presumptive sentence for second-degree felony murder. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (noting upward sentencing departure within trial court's discretion if substantial and compelling aggravating circumstances are present); Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (recognizing appellate court examines record independently to determine whether it supports trial court's stated reasons for departure). In deciding whether to depart from a presumptive sentence, a trial court must consider whether the defendant's conduct was significantly more serious than that typically involved in the commission of the crime in question. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989).

In departing from the presumptive sentence, the trial court relied on numerous aggravating factors as well as Thomas's past criminal history. See Minn. Stat. § 609.152, subd. 2 (1996) (permitting aggravated durational departure if person convicted of violent crime has two or more prior convictions and is a danger to public safety), (current version at Minn. Stat. § 609.1095, subd. 2 (1998)). An independent review of the record shows: (1) Thomas fractured the victim's skull by hitting the back of the victim's head with a large log while two young children were in the back room of his apartment; (2) without seeking medical attention or checking to see if the victim was alive, Thomas stuffed the victim's body into a closet; (3) assuming the victim was dead, Thomas then moved the body two hours later into a storage room, removed the victim's jacket, and emptied the victim's pockets; (4) ten hours after moving the victim to the storage room, Thomas tied a plastic shopping bag and pillow case over the victim's head, crammed the victim into a rolling dumpster, wheeled the dumpster across the street, and dumped the victim's body in an alley; (5) Thomas has three prior convictions for armed robbery in the State of Maryland; and (6) one prior conviction resulted from Thomas throwing liquid ammonia into a store clerk's face, and another prior conviction involved Thomas striking a store clerk in the back of the head with a gun.

Given these facts, the aggravating factors cited by the trial court are supported by the record and show Thomas's conduct was particularly egregious. See Minn. Sent. Guidelines II.D.2.b(2) (noting particular cruelty can be aggravating factor); see also State v. Folkers, 562 N.W.2d 5, 9 (Minn. App. 1997) (upholding upward departure from presumptive sentence for second-degree felony murder where defendant shot victim in face, concealed body, and left body in van across town), aff'd as modified 581 N.W.2d 321 (Minn. 1998); State v. Rodriguez, 505 N.W.2d 373, 377-78 (Minn. App. 1993) (upholding upward departure from presumptive sentence for second-degree felony murder where defendant stole elderly woman's car, left her in car to die of exposure, and did not report her whereabouts), review denied (Minn. Oct. 19, 1993). The facts also support the trial court's determination that Thomas has two or more prior convictions for violent crimes and is a danger to public safety. Minn. Stat. § 609.152, subd. 2. Under these circumstances, the trial court did not abuse its discretion in departing from the presumptive sentence for second-degree felony murder. See Glaraton, 425 N.W.2d at 834 (noting upper limit on durational departure is double Sentencing Guidelines' maximum presumptive sentence duration).


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