STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1152

State of Minnesota,
Respondent,

vs.

John R. Olson,
Appellant.

Filed May 10, 2005

Reversed and remanded

Minge, Judge

Blue Earth County District Court

File No. K0-03-963

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)

John M. Stuart, State Public Defender, Stephen L. Smith, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

In this appeal from a conviction and sentence, appellant challenges the district court’s refusal to suppress the evidence and dismiss the charges. Appellant also argues that the consecutive sentence violates Blakely v. Washington, 124 S. Ct. 2531 (2004). Because we conclude, and the state concedes, that the search warrant is invalid and that significant evidence should have been excluded, we reverse appellant’s conviction and remand to the district court. Because we are reversing appellant’s conviction, we do not address the Blakely sentencing issue.

FACTS

On May 5, 2003, police applied for and received a warrant to search appellant’s apartment. The warrant did not describe the items to be seized. Several police officers went to appellant’s apartment to execute the search warrant and served appellant with a copy of the warrant. Upon entering appellant’s apartment, the lead officer determined that they should expand the search to areas adjacent to the apartment, and he told the other officers to wait while he returned to court to obtain an amended warrant. The expanded, amended warrant also failed to include a description of the items to be seized.

While the lead officer was gone, appellant’s acquaintance brought a videotape to the apartment. When the waiting officers asked about the tape, the acquaintance gave it to them. When subsequently viewed by the officers, they learned that the videotape recorded appellant robbing, assaulting, and holding an unidentified man at appellant’s apartment for several hours. As a result of viewing the tape, police began investigating this assault and robbery, and ultimately charged appellant with two counts of aiding and abetting aggravated robbery in the first degree, in violation of Minn. Stat. § 609.245, subd. 1, .05 (2002); aiding and abetting kidnapping, in violation of Minn. Stat. § 609.25, subd. 1, .05 (2002); aiding and abetting assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1, .05 (2002); and aiding and abetting terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1, .05 (2002).

Appellant moved to suppress the videotape as a result of an illegal search and to dismiss the charges. The district court determined that the search was illegal because it lacked a description of the property sought, but it denied the motion to suppress on the ground that the police would have inevitably learned of the crime and discovered the videotape. Appellant then submitted the case to the court based on stipulated facts and the district court found appellant guilty of all charges. Appellant was sentenced to 57 months for aiding and abetting robbery in the first-degree and 21 months for aiding and abetting kidnapping, with the sentences to be served consecutively. This appeal follows.

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence. State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004). The Fourth Amendment requires that a search warrant contain a description of the things to be searched. U.S. Const. amend. IV. In Groh v. Ramirez, the U.S. Supreme Court stated, “the warrant did not describe the items to be seized at all. In this respect the warrant was so obviously deficient that we must regard the search as ‘warrantless’ within the meaning of our case law.” 540 U.S. 551, 558, 124 S. Ct. 1284, 1290 (2004); see also State v. Balduc, 514 N.W.2d 607, 610-11 (Minn. App. 1994) (holding search warrant which lacked any description of the items to be seized was defective and was not cured by description in search warrant application).

In this case, it is undisputed that the search warrant handed to appellant contained no description of the things to be seized. On appeal, the state concedes that the warrant was invalid, that the search of appellant’s apartment was unconstitutional, that the tape should not have been admitted into evidence, and that the convictions should be reversed.

Despite the state’s consent to reversal, we have a responsibility to conduct an independent review of the district court’s decision and the record before reversing its decision. If the videotape was obtained during the search, it should be suppressed as “fruit of the poisonous tree.” Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000). To be admissible the state must prove that the evidence was obtained “by means sufficiently distinguishable to be purged of the primary taint.” State v. Doughty, 472 N.W.2d 299, 305 (Minn. 1991) (quoting Wong Sung v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1962)). In this case, we do not have such independent means that would purge the primary taint. Since the videotape was obtained from a visitor to appellant’s apartment who arrived during an illegal search, it is a fruit of that illegal search.

The district court applied the inevitable discovery doctrine from Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984), to determine that the victim would have reported the crime and that the videotape would have been inevitably discovered. The inevitable discovery doctrine “involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.” State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003) (quoting Nix, 467 U.S. at 444 n.5, 104 S. Ct. 2501, 2509).

We agree with the state that the inevitable discovery rule does not apply here. The police recovered the videotape hours after the assault and before the victim had filed any complaint. If the police had not been at appellant’s residence, it is unclear whether they would have ever found the videotape. Because the state did not meet its burden of proving that absent the illegal search it would have discovered the videotape, the district court erred in declining to suppress the videotape.

Reversed and remanded.