State of Minnesota v. Bashir Abdullahi Farah
Opinion text
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0541
State of Minnesota,
Appellant,
vs.
Bashir Abdullahi Farah,
Respondent.
Filed September 29, 2014
Affirmed
Smith, Judge
Freeborn County District Court
File No. 24-CR-13-649
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney,
Albert Lea, Minnesota (for appellant)
Kelly Martinez, John Kaschins, Martinez and Kaschins, LLC, Minneapolis, Minnesota
(for respondent)
Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,
Judge.
SYLLABUS
When a party gives proper notice of a motion to exclude evidence because the
chain of custody is lacking, the district court, in its discretion, may determine the
admissibility of the evidence prior to trial.
OPINION
SMITH, Judge
We affirm the district court’s pretrial order excluding controlled-substance
evidence because the district court, concluding that appellant State of Minnesota had
sufficient notice, did not err by making a chain-of-custody evidentiary ruling before trial
and did not abuse its discretion by finding the evidence inadmissible.
FACTS
On April 12, 2013, Agent Arnold Zuniga of the Freeborn County sheriff’s office
and the South Central Drug Investigation Unit learned that a confidential reliable
informant could arrange for him to buy one ounce of cocaine for $1,000. Agent Zuniga
executed the controlled buy, which involved respondent Bashir Abdullahi Farah. After
the buy, Agent Zuniga reported that he had received a 5.5-gram package containing a
“white powdery substance,” which field tested positive for cocaine. In connection with
the buy, Agent Zuniga secured three cell phones in an evidence locker.
On April 16, the state charged Farah with second-degree sale of a controlled
substance; the state subsequently amended the complaint to include aiding and abetting
second-degree sale of a controlled substance. Two days later, Agent Zuniga contacted
the Bureau of Criminal Apprehension (BCA) and requested an analysis be completed on
the “white powdery substance” seized during the controlled buy. The BCA received the
evidence, noting that it was “classified as crystalline material.” However, a BCA
scientist subsequently crossed out the word “crystalline” and replaced it with the word
“rock-like.” In her case notes, the scientist described the evidence as approximately
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4.869 grams of a “rock-like material/powder,” divided between two corners of a plastic
bag. After analyzing a sample of the evidence, the scientist concluded that the “rock-like
material” contained cocaine. The evidence was returned to Agent Zuniga, who wrote that
he placed the “rock-like material” in an evidence locker.
On December 9, Farah moved the district court to compel discovery. Among
other things, Farah requested “the chain of custody reports related to any and all evidence
obtained in this matter.” At a hearing two days later, Farah’s counsel clarified that she
was requesting “the chain of evidence records and how the cocaine and the evidence that
[the police] obtained in this case was handled while within the possession of” the police
departments, stating that she “need[ed] to know what was done and how that evidence
was handled prior to even getting to the BCA.” The prosecutor stated that, in this case,
the police do not have a “separate chain of custody report”; there is only “what officers
do in their own reports to describe what has become of evidence.”
On February 21, 2014, Farah moved the district court to exclude the controlled-
substance evidence, arguing that:
a. Chain of custody has not been preserved, and thus the
State cannot establish that it maintained possession of the
controlled substances from the time of seizure to the time of
trial.
b. The State has indicated that there is no chain of
custody records/reports/data regarding the controlled
substances except what is contained within the police reports.
c. Other records contained within the discovery may
indicate information relating to said controlled substances are
unreliable.
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On March 6, the district court convened a hearing on the motion. Farah’s counsel
opened by stating that Farah was “asking that the drugs in this case be excluded from
evidence on the basis that the stuff that the BCA processed was not what was obtained in
the” April 12 controlled buy, and “the state cannot prove that the substance obtained by
[Farah] is the same as the substance tested by the BCA.” Subsequently, Farah’s counsel
stated that the issue was whether “what was obtained from the seiz[ure] is the same thing
that went to the BCA.” The prosecutor characterized Farah’s challenge as a probable-
cause challenge, insisting that chain of custody “is a fact question for the jury to decide.”
The district court responded that an “evidentiary question is not quite the same as a
probable cause question,” noting that the district court must rule to admit evidence before
the evidence can present a factual question for the jury. The district court explained that
it was “approaching this as an evidentiary issue,” and it would admit the evidence for trial
only if the state sufficiently authenticated it prior to trial. The district court granted the
prosecutor a continuance to call a witness regarding the chain of custody.
The hearing continued on March 11. The prosecutor did not call a witness and,
citing this court’s unpublished opinion in State v. Boyles,1 iterated his position “that this
is essentially a probable cause challenge.” The prosecutor began an offer of proof,
stating, in part, “Deputy Zuniga took that bag . . . containing powder. He sent that to the
BCA after field testing it himself. He did not open that baggie or untie that knot. He
simply sent it to the—had it sent to the BCA.” The district court stated that it “asked for
1
State v. Boyles, No. C5-92-2039, 1993 WL 129663 (Minn. App. Apr. 27, 1993), review
denied (Minn. June 22, 1993).
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witnesses, not proffers.” After hearing argument from both parties, the district court took
the matter under advisement.2 On March 20, the district court granted Farah’s motion to
exclude the controlled-substance evidence.
ISSUE
May a district court make a chain-of-custody determination prior to trial?
ANALYSIS
The state first challenges the district court’s pretrial decision to rule on the
admissibility of the evidence. On this point, the state advances two arguments: (1) the
district court was required to wait until trial to make its evidentiary ruling and (2) the
evidentiary ruling was for the jury to make, not the district court. Both arguments are
without merit.
“[A]uthentication or identification” of evidence is “a condition precedent to
admissibility.” Minn. R. Evid. 901(a). This requirement “is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.”
Id. “[A]dmissibility must be left to the sound discretion of the trial judge,” State v.
Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976), and the district court may
make a “definitive ruling” to admit or exclude evidence “either at or before trial,” Minn.
2
During the hearing, Farah’s counsel submitted into evidence two police policy manuals.
The prosecutor did not object, stating, “[S]ince I think this is a probable cause challenge,
I think the [district court] should consider everything.” The prosecutor also stated, “I did
not anticipate that [Farah’s chain-of-custody argument] would include arguments about
the content of a policy [] which [Farah’s counsel] has obtained directly from the Sheriff’s
Department, which I don’t have.” However, the record establishes that, on March 5,
Farah’s counsel notified the prosecutor, in writing, that she intended to offer these
manuals as exhibits.
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R. Evid. 103(a). If the district court determines that evidence is admissible, the
credibility of the supporting proof may be challenged at trial and “[t]he trier of fact
renders the ultimate decision as to whether the item of real evidence admitted in evidence
is as it is purported to be.” State v. Hager, 325 N.W.2d 43, 44-45 (Minn. 1982)
(quotation omitted).
To support its arguments, the state relies heavily on Boyles, 1993 WL 129663. As
an unpublished opinion of this court, Boyles is not precedential. Minn. Stat. § 480A.08
(2012). Accordingly, the state’s position is not supported. The district court did not err
by making a pretrial ruling on Farah’s evidentiary challenge because narrowing the issues
for trial or alternatively eliminating the need for trial serves the interests of efficient
judicial administration.
II.
The state next challenges the district court’s conclusion regarding the admissibility
of the evidence. As a threshold matter, we must determine the appropriate standard for
our review. When a pretrial order on a suppression motion turns on a legal
determination, such as an alleged constitutional violation, we “may independently review
the [undisputed] facts and determine, as a matter of law, whether the district court erred
in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98
(Minn. 1999); see also State v. Flermoen, 785 N.W.2d 787, 789 (Minn. App. 2010).
However, when the order turns on the admissibility of evidence under the Minnesota
Rules of Evidence—for example, a determination as to foundation or the chain of
custody—the challenge relates to an evidentiary ruling. See Flermoen, 785 N.W.2d at
6
791 n.3; McDonald v. State, 351 N.W.2d 658, 660 (Minn. App. 1984), review denied
(Minn. Oct. 16, 1984). “Evidentiary rulings are within the discretion of the district court
and will not be overturned absent an abuse of that discretion.” State v. Jenkins, 782
N.W.2d 211, 224 (Minn. 2010); see also McDonald, 351 N.W.2d at 660 (“The standard
of review of the adequacy of foundation for the admission of evidence is whether an
abuse of discretion is shown.”). Here, the district court excluded the evidence based on
its conclusion that the state did not establish a sufficient chain of custody. Because this is
an evidentiary ruling, the appropriate standard for appellate review is an abuse of
discretion.
The “chain of custody” rule requires “the prosecution to account for the
whereabouts of physical evidence connected with a crime from the time of its seizure to
its offer at trial.” Johnson, 307 Minn. at 504, 239 N.W.2d at 242. The rule does not
create a “rigid formulation of what showing is necessary in order for a particular item of
evidence to be admissible.” Id. at 504, 239 N.W.2d at 242. Rather, it requires the district
court to “be satisfied that, in all reasonable probability, the item offered is the same as the
item seized and is substantially unchanged in condition.” Id. at 505, 239 N.W.2d at 242;
see also Minn. R. Evid. 901(a) (“The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.”). A chain-of-custody
“procedure is essential when common items such as drugs . . . are involved.” State v.
Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review denied (Minn. Nov. 25, 1992).
“All possibility of alteration, substitution, or change of condition need not be eliminated
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in laying a chain-of-custody foundation,” but “the more authentication is genuinely in
issue, and the more susceptible the item is to alteration, substitution, or change of
condition, the greater the need to negate such possibilities.” Hager, 325 N.W.2d at 44
(quotations omitted).
Farah challenged the link in the chain of custody when Agent Zuniga allegedly
possessed the evidence before it was sent to the BCA. The record establishes that, in this
case, authentication was genuinely in issue. Police records consistently describe the
seized evidence as a “white powdery substance.” But the BCA’s records repeatedly
describe the analyzed evidence, which the state sought to admit, as a “rock-like material”
or a “rock-like material/powder.” When the BCA returned the analyzed evidence to
Agent Zuniga, he too described the analyzed evidence as a “rock-like material.”
Additionally, although Agent Zuniga documented what he did with three cell phones
seized in connection with the controlled buy, he did not document what he did with the
seized evidence at issue. The state did not call Agent Zuniga to testify regarding this link
in the chain of custody, and even in his offer of proof, the prosecutor faltered over
whether Agent Zuniga personally sent the evidence to the BCA or whether he had
someone else send the evidence to the BCA. On this record, the district court did not
abuse its discretion by concluding that the state failed to establish “chain of custody
sufficient to allow the controlled-substance evidence to be admitted at trial.”
III.
The state challenges the district court’s conclusion that it “had adequate notice of
[Farah’s] evidentiary challenges and [Farah’s] challenges were stated with sufficient
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particularity.” Based in part on this challenge, the state asks us to reverse the district
court’s order excluding the controlled-substance evidence and remand for a trial. The
state’s arguments are again without merit.
“[A] pretrial motion to suppress should specify, with as much particularity as is
reasonable under the circumstances, the grounds advanced for suppression in order to
give the state as much advance notice as possible as to the contentions it must be
prepared to meet at the hearing.” State v. Needham 488 N.W.2d 294, 296 (Minn. 1992).
In Needham, defense counsel moved to suppress the defendant’s confession under
Miranda.3 Id. at 295. After receiving testimony from the interrogating officer and the
defendant, the district court directed the parties to file simultaneous omnibus hearing
briefs. Id. at 295-96. In its brief, the state addressed the Miranda issues “on which
defense counsel’s questioning at the omnibus hearing had focused.” Id. at 296.
However, “[d]efense counsel raised, for the first time in his short letter brief,” another
specific challenge to the Miranda warning. Id. The district court “ruled against the
defense on every issue except” the newly articulated challenge. Id. Concluding that the
defense’s challenge “was not clear to the prosecutor,” and the state deserved “a full and
fair opportunity to meet its burden,” the supreme court remanded for a reopened omnibus
hearing. Id. at 296-97.
First, Needham does not support the state’s contention that lack of particularity in
a motion to exclude evidence justifies remand for a trial that includes the previously
excluded evidence. To the contrary, the state’s relief under Needham, if any, would be a
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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reopened omnibus hearing to address the newly articulated ground for exclusion.
Second, unlike in Needham, the state had ample notice here of the grounds advanced for
exclusion. At a hearing in December 2013, Farah’s counsel requested “the chain of
evidence records and how the cocaine and the evidence that [the police] obtained in this
case was handled while within the possession of” the police departments, stating that she
“need[ed] to know what was done and how that evidence was handled prior to even
getting to the BCA.” In his subsequent exclusion motion, Farah challenged the chain of
custody and, without explicitly stating the challenged link, flagged the lack of police
reports. At the omnibus hearing on the motion, Farah’s counsel stated that Farah was
“asking that the drugs in this case be excluded from evidence on the basis that the stuff
that the BCA processed was not what was obtained in the” April 12 controlled buy,
asserted that “the state cannot prove that the substance obtained by [Farah] is the same as
the substance tested by the BCA,” and described the issue as whether “what was obtained
from the seiz[ure] is the same thing that went to the BCA.”
In the spirit of Needham, the district court granted the state a continuance to
address Farah’s motion. When the parties reconvened, however, the prosecutor
inexplicably declined to present testimony on the challenged link. Particularly in light of
this squandered opportunity, granting the state another chance to meet its burden of proof
is not justified.
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DECISION
When a party gives proper notice of a motion to exclude evidence because chain
of custody is lacking, the district court, in its discretion, may determine the admissibility
of the evidence prior to trial.
Affirmed.
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