State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1622

State of Minnesota,
Respondent,

v.

Kenneth Davonte Smith,
Appellant.

Filed August 7, 2017
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19HA-CR-15-4429

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebroo k, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and
Kalitowski, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The Dakota County District Court found Kenneth Davonte Smith guilty of being an
ineligible person in possession of a firearm. Before trial, the district court denied Smith’s
motion to suppress evidence of a firearm that was found in a search of his home, which
was conducted pursuant to a search warrant . Smith argues that the firearm should have
been suppressed on the ground that the warrant application contained a material
misstatement. We conclude that the warrant application does not contain a misstatement,
that the officer who prepared the application did not act deliberately or recklessly, and that
the alleged misstatement does not concern a material fact. Therefore, we affirm.
FACTS
In December 2015, Officer Werner of the Minneapolis Police Department received
a tip from a confidential informant, who stated that he had been inside Smith’s residence
and had seen Smith with two handguns. Because Smith is not eligible to possess a firearm,
Officer Werner applied to a Dakota County District Court judge for a warrant to search
Smith’s residence and his person. In the warrant application, Officer Werner stated:
I received information from a confidential reliable informant
(CRI) regarding a party by the name of [Smith]. The CRI
advised me that with in the past 72 hours they saw [Smith] with
a large amount of mar ijuana inside his house . . . in West St.
Paul. The CRI also stated that they saw [Smith] armed with a
handgun. . . . The CRI also stated that [Smith] carries the gun
with him to protect himself from being robbed of his drugs and
money. The CRI also stated that [Smith] drives a silver Jaguar
with MN license plate . . . .

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Officer Werner also stated in his supporting affidavit that Smith is prohibited by law from
possessing a firearm because of a prior felony conviction , that officers had seen a silver
Jaguar with the same license-plate number parked in front of Smith’s home, that officers
had seen a person matching the informant’s description of Smith leave the residence and
drive away in the Jaguar, and that officers previously had had contact with Smith while he
was driving the Jaguar. A judge approved the application and issued the warrant.
Police officers learned that Smith had a meeting with his probation officer that
evening at 6:00 p.m. The officers decided to search his home in West St. Paul while he
was at the meeting or on his way to the meeting. Officer Werner asked a West St. Paul
police officer to detain Smith in a traffic stop “to assure Smith was accounted for since he
is known to possess firearms” and “to assure the warrant could be executed safely.”
Shortly before 5:00 p.m., police officers observed Smith walk out of his home and
get inside an SUV that was parked in the driveway, which drove away with Smith in the
front passenger’s seat. A West St. Paul police officer stopped the SUV and removed Smith
from the vehicle. A police officer searched the vehicle after smelling unburnt marijuana
and observing a jar that contained marijuana on the floor on the passenger’s side. The
officer found a handgun under the driver’s seat and more than $1,000 in cash on Smith’s
person. The officer arrested Smith and transported him to the West St. Paul Police
Department. Smith disclosed in an interrogation that he had a firearm on his person when
arrested that was not detected during his arrest or during booking. An officer found that
handgun in Smith’s holding cell, inside his mattress.
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Meanwhile, after Smith was detained in West St. Paul, Minneapolis police officers
searched his home pursuant to the search warrant . Officers found a handgun in Smith’s
bedroom. While being questioned in West St. Paul, Smith admitted that the handgun found
in his bedroom belonged to him.
The state charged Smith with one count of being an ineligible person in possession
of a firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (Supp. 2015). The complaint
refers to both the firearm that was found in Smith’s holding cell and the firearm that was
found in his bedroom.
In March 2016, Smith moved to suppress evidence on the ground that the warrant
application contained a misstatement of material fact. At an evidentiary hearing, the state
called Officer Werner as a witness. The district court denied Smith’s motion on the ground
that the warrant application did not contain a misstatement.
In June 2016, Smith waived his right to a trial by jury and stipulated to the
prosecution’s case, and the parties agreed that the district court’s pre-trial ruling would be
dispositive. See Minn. R. Crim. P. 26.01, subd. 4. The district court found Smith guilty
based on his possession of both the firearm that was found in his bedroom and the firearm
that was found in his holding cell. The district court sentenced him to 60 months of
imprisonment. Smith appeals.
D E C I S I O N
Smith argues that the district court erred by denying his motion to suppress
evidence. He contends that the warrant application contains a misstatement that was
material to the finding of probable cause.
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The Fourth Amendment to the United States Constitution guarant ees the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures” and states that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV; see also Minn. Const. art. I,
§ 10. In Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674 (1978), the United States
Supreme Court held that a criminal defendant may, after a warrant has been issued and
executed, “challenge the truthfulness of factual statements made in an affidavit supporting
the warrant.” Id. at 155-56, 98 S. Ct. at 2676. “A search warrant is void, and the fruits of
the search must be excluded , if the application includes intentional or reckless
misrepresentations of fact material to the findings of probable cause.” State v. Moore, 438
N.W.2d 101, 105 (Minn. 1989). Accordingly, if a defendant seeks to invalidate a warrant
under Franks, the defendant must show that “(1) the affiant ‘deliberately made a statement
that was false or in reckless disregard of the truth, ’ and (2) ‘the statement was material to
the probable cause determination.’” State v. Andersen, 784 N.W.2d 320, 327 (Minn. 2010)
(quoting State v. McDonough, 631 N.W.2d 373, 390 (Minn. 2001)). This court applies a
clear-error standard of review to a district court’s finding on the first requirement and a de
novo standard of review to a district court’s determination of the second requirement. Id.
Smith contends that Officer Werner made a misstatement of fact in the warrant
application concerning Smith’s possession of a handgun .1 In a police report, Officer

1The district court found Smith guilty based on his possession of two firearms: the
handgun found in his bedroom and the handgun found in his holding cell. Smith’s
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Werner wrote that the informant told him that Smith “keeps . . . guns at his house to protect
himself from being robbed of his drugs and money.” I n the warrant application , Officer
Werner wrote that the informant stated that he “saw [Smith] armed with a handgun” inside
his home and that Smith “carries the gun with him to protect himself from being robbed of
his drugs and money.” At the suppression hearing, Smith made an argument based on a
subtle difference between the police report and the warrant application. Specifically, Smith
argued that, in the warrant application, Officer Werner falsely stated that Smith possessed
guns when away from home, even though the informant had told Officer Werner only that
Smith possessed guns when at home. On cross -examination, Officer Werner confirmed
that the informant did not say that Smith carried guns when away from home. On re-direct
examination, Officer Werner explained his statement in the warrant application as follows:
“When I say ‘carries the gun’ or ‘has the gun,’ . . . I’m referring to that he keeps it at the
house, maybe carries it on him at the house, but I’m not referring to that he was carrying
the gun outside the house, no.” Officer Werner explained further that , based on the
informant’s tip, he believed that Smith probably possessed a firearm at his home and that
the search was intended to find a firearm in Smith’s home.
The district court resolved Smith’s motion in a ruling from the bench, as follows:
There is no misstatement in Exhibit C [i.e., the warrant
application]. The officer has every right to determine what is
the safest route to stop people, especially when there is a gun

argument on appeal goes directly to the validity of the search of his home. Smith does not
explain why the district court should have suppressed the evidence of the handgun found
in his holding cell. We nonetheless assume that, but for the search warrant, police officers
would not have stopped the SUV in which Smith was a passenger, would not have arrested
him, and would not have found the handgun in his holding cell.
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involved. Even if the statement by the [informant] was that he
only carries the guns in the house, in buildings, he never has it
on his person, no police officer should ever rely on that when
it comes to their safety or the safety of the public safety. Once
a gun is heard by a police officer or by the courts and it’s
dealing with drugs, I would assume that every police officer
will assume that at this point in time, this person is carrying a
gun, because if I guess wrong, it’s a bad scenario. So that will
not carry the day.

In essence, the district court reasoned that if an officer knows that a suspect possesses a
firearm while at home, the officer is entitled to infer that the suspect also possesses a
firearm while away from home. But Officer Werner testified that he did not intend to say
that Smith carried a firearm while away from home.
On appeal, Smith makes a slightly dif ferent argument. He argues that Officer
Werner’s warrant application “implied that Smith carried a gun and did not suggest that he
only kept them at his house.” It appears that Smith now is focusing on the distinction
between, on the one hand, possessing a firearm at home by carrying it and, on the other
hand, possessing a firearm at home by keeping it someplace inside the home. Smith
contends that Officer Werner falsely made the former statement even though the informant
had made only the latter statement.
As stated above, Smith first must show that Officer Werner “deliberately made a
statement that was false or in reckless disregard of the truth .” See Andersen, 784 N.W.2d
at 327 (quotation omitted). Smith has not shown that Officer Werner made any
misstatement in the warrant application by stating that Smith “carries the gun.” Officer
Werner’s statement in the warrant application is not inconsistent with the informant’s
statement that Smith “keeps . . . guns at his house.” It would be difficult to keep a gun at
8
one’s home without ever carrying it . There i s no evidence that Smith never carried a
handgun, and there is no suggestion that some other person carried the guns into Smith’s
home. Given the informant’s statement that Smith “keeps” guns at home, it reasonably
may be inferred that Smith occasionally “carries” the guns inside the home. Thus, we agree
with the district court’s finding that there is no misstatement of fact in the warrant
application. This conclusion is sufficient to affirm the district court’s ruling on the motion
to suppress evidence.
There are additional reasons why Smith is not entitled to suppression. If he could
establish that Officer Werner made a misstatement, he also would need to show that the
officer did so deliberately or with reckless disregard for the truth. See id. Mere “innocent
or negligent misrepresentations will not invalidate a warrant.” Moore, 438 N.W.2d at 105.
Officer Werner testified that he did not intend to cause the judge reviewing the warrant
application to believe that Smith carrie s guns both while at home and while away from
home. Smith’s attorney did not impeach that testimony during the suppression hearing.
Officer Werner never was asked to explain why he u sed the word “carries” instead of
“keeps” to describe Smith’s conduct with resp ect to the guns in his home. The
circumstances do not allow this court to infer that Officer Werner was either deliberate or
reckless in making the statement about Smith’s possession of guns when at home.
Furthermore, if Smith could establish the first requirement of the Franks test, he
also would need to satisfy the second requirement by showing that “the [mis]statement was
material to the probable cause determination .” See A ndersen, 784 N.W.2d at 327
(quotation omitted). “A misrepresentation or omission is material if, when the
9
misrepresentation is set aside or the omission supplied, probable cause to issue the search
warrant no longer exists.” Id. If Officer Werner had used the word “keeps” instead of the
word “carries,” the judge reviewing the warrant application would have had just as much
reason to believe that evidence of unlawful possession of a firearm probably would be
revealed by a search of Smith’s home. If any thing, the judge reviewing the warrant
application would have had more reason, not less reason, to approve the warrant application
because the word “keeps” perhaps could be read to suggest that guns remained in the home
even when Smith was away from home. In any event, Smith cannot show that, “when the
misrepresentation is set aside . . . , probable cause to issue the search warrant no longer
exists.” See id.
For all these reasons , the district court did not err by rejecting Smith’s Franks
argument and by denying his motion to suppress evidence.
Affirmed.