State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-0565

State of Minnesota,
Appellant,

vs.

Cole Earl Thompson,
Respondent.

Filed November 13, 2017
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Dakota County District Court
File No. 19HA-CR-16-3581

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

James C. Backstrom, Dakota County Attorn ey, Phillip D. Prokopowicz, Chief Deputy
County Attorney, Hastings, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota; a nd Anthony Edward Ho, McDonough, Wagner &
Ho, Apple Valley, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this pretrial appeal, appellant State of Minnesota challenges the district court’s
suppression of evidence resulting from a warranted search of respondent Cole Thompson’s

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residence and recycling bin. The state cont ends that (1) the district court erred in
determining that the search warrant, which was not signed prior to execution of the search,
was invalid under the United States Cons titution, the Minnesota Constitution, and
Minnesota statute; (2) the district court abused its discretion in denying the state’s motion
to reopen the omnibus hearing; and (3) the district court erred in suppressing evidence
found in Thompson’s recycling bin because the court did not determine whether Thompson
had an expectation of privacy in the bin.
We conclude that the district court did not err in determining that the search warrant
was constitutionally and statutor ily invalid or abuse its disc retion in declining to reopen
the omnibus hearing. However, we conclude th at the district court erred in suppressing
evidence found in the recy cling bin without determin ing whether Thompson had a
reasonable expectation of privacy in it. Therefore, we affirm in part, reverse in part, and
remand.
FACTS
On September 14, 2016, Scott County Deputy Sheriff Shawn Mahaney applied for
a search warrant for Thompson’s residence. The deputy submitted the application,
supporting affidavit, and proposed search warrant in person to a district court judge. The
judge placed the deputy under oath and took his sworn testimony; re viewed, dated, and
signed the application; but did not sign the sear ch warrant itself. Th e judge returned the
application and the unsigned warrant to the deputy, who left without inspecting the
documents but believing that the judge had signed the search warrant.

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Six days later, the deputy and other officers executed the search warrant. In addition
to searching inside Thompson’s residence, officers also searched a recycling bin located in
the alleyway behind the residence. In the recycling bin, they found approximately 130
grams of a substance that later tested positive for methamphetamine.
After most of the search was completed, including the search of the recycling bin,
the officers realized that the judge had not signed the warrant. Th e deputy stopped all
search activity and phoned th e judge, who instructed him to electronically forward a
scanned copy of the unsigned warrant. The judge signed the search warrant without any
additions or changes, leaving the same Se ptember 14 signature date that had been
previously typed on the warrant.
Thompson was charged with first-degree controlled-substance crime. He moved to
suppress all evidence from the search, and the district court held an omnibus hearing. The
judge who reviewed the application and ultimately signed the warrant did not testify. The
deputy testified about his phone conversation with the judge and, in response to a question
asking whether the judge had given an explana tion for not signing, stated, “I believe she
just said it was her mistake.” The district court granted Thompson’s motion to suppress,
concluding there was insuffici ent evidence to find that th e judge, at the time of the
application, had found probable cause and intended to issue the warrant. The district court
refused to except the evidence from the recycling bin from its suppression order.
The state simultaneously filed a notice of appeal with the court of appeals and a
motion to reopen the omnibus hearing with the district court. Because of the pending
appeal, the district court initially canceled its hearing on the state’s motion. After this court

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gave the state permission to stay its appeal, the state proceeded with its motion to reopen,
seeking to introduce testimony from the reviewi ng judge. The district court denied the
state’s motion. The state’s appeal was reinstated.
D E C I S I O N
In a pretrial appeal by the state, we w ill reverse only if the state has demonstrated
“clearly and unequivocally” that the district court’s order constituted error and that the
order will have a “critical impact” on the st ate’s ability to prosecute the defendant
successfully. See State v. Scott , 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v.
Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). “When reviewing a pretrial order on a motion
to suppress, we review the district court’s factual findings under our clearly erroneous
standard. We review the district court’s legal determinations, including a determination of
probable cause, de novo.” See State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012) (citation
omitted); see also State v. Lugo , 887 N.W.2d 476, 483-85 (Min n. 2016) (holding same
standard applies to state’s pretrial appeals). The parties agree that the “critical impact”
element is satisfied, as suppression of the evidence here would l ead to the effective
dismissal of criminal charges. We thus turn to the state’s argument of error.
I. The district court did not err in dete rmining that the sear ch warrant did not
satisfy constitutional and statutory requirements.

The state argues that the district court e rred in determining that the search warrant
was constitutionally and statutorily invalid.

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A. The district court did not err in determining the warrant was
constitutionally invalid.

Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures and provide that search warrants shall be issued only u pon probable cause.
U.S. Const. amend. IV; Minn. Const. art. I, § 10. Probable cause is determined by the
reviewing judge based on the totality of the circumstances. Zanter, 535 N.W.2d at 633
(quotation omitted). As a gene ral rule, evidence seized in violation of the Constitution
must be suppressed. State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007).
In a suppression hearing, the state bears the burden of proving by a preponderance
of the evidence that its actions conformed to pertinent constitutional provisions. See State
v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (a pplying preponderance-of-the-evidence
burden of proof in Fourth Amendment warrantless-search case); State ex rel. Rasmussen v.
Tahash, 272 Minn. 534, 554, 141 N.W.2d 3, 13-14 (1965) (explaining that the state has the
obligation to show that th e circumstances under which evidence was obtained was
consistent with constitutional requirements).
The parties cite no Minnesota case addre ssing whether the absence of a signature
necessarily renders a warrant constitutionally invalid. In State v. Andries, discussed by the
parties, the supreme court concluded that a warrant satisfied c onstitutional requirements
when the judge—in a recorded telephone conversa tion with a deputy—reviewed the
application and warrant, made a substantive determination that probable cause existed and
the warrant should issue, and de legated to the deputy the task of signing his name. 297
N.W.2d 124, 125 (Minn. 1980). The district court here assumed, without deciding, that an

6
unsigned search warrant may be constitutiona lly valid as long as the reviewing judge
actually made a probable cause determination and intended to sign the warrant prior to the
search. The district court found, however, that the state did not prove those circumstances.
We decline to decide whethe r the absence of a judge’s signature renders a warrant
constitutionally invalid in every case because we conclude that the district court properly
decided that the state failed to meet its burden of proof in this case.
1. The district court did not appl y the wrong burden of proof.

The state argues that the district court erroneously held the state to a higher, “clear
or direct evidence” burden of proof, rather than the applicable preponderance-of-the-
evidence standard, in evaluating whether the state had pr oved that the reviewing judge
made a probable cause determination and in tended to sign the warrant at the time of
application.
Error is never presumed on appeal. Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d
542, 546 (1949). “It must be made to appear affirmatively be fore there can be reversal.
Not only that, bu t the burden of showing error rests upon the one who relies upon it.”
Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975)
(quotation omitted). We assume th at the district court used th e correct standard of law.
Clark v. Clark , 288 N.W.2d 1, 8 n.10 (Minn. 1979) (“The record . . . does not indicate
which standard was applied by the district court. We believe that it is fair to presume . . .
that the trial court applied the correct standard in reaching its decision.”).
We see no reason to doubt this presumption here. In its order, the district court did
not state that the state’s burden of proof was “c lear or direct evidence.” In fact, the order

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does not specify the burden of proof. The state argues that the order indicates a higher
burden of proof because it refers to the lack of “clear evidence” th at the reviewing judge
made a probable cause determination at the time of the application. We disagree that this
reference indicates that the district court held the state to a higher burden of proof.
First, the district court did not use the phr ase “clear or direct evidence.” Second,
“direct” does not reference a burden of proo f, but rather a method of proof. Finally, the
district court, in using the word “clear,” was distinguishing the present case from the two
federal cases relied upon by the state in opposing the suppressi on motion. The district
court distinguished United States v. Lyons , in which the judge signed a warrant the day
after the search, adding a note that his failure to sign initially had been inadvertent. 740
F.3d 702, 724 (1st Cir. 2014). The Firs t Circuit wrote, “G iven the clear and
contemporaneous evidence th at the state justice made a proper probable cause
determination and approved the issuance of a wa rrant for execution, we decline to find in
the lack of a signature a reason for suppression.” Id. at 726. The district court here
explained that the judge’s note in Lyons “made clear” that the judge unintentionally failed
to sign the warrant before the search was conducted.
The district court also distinguished United States v. Cruz, in which the judge who
signed a warrant one month after it was initially issued noted underne ath the initial date
line “Nunc Pro Tunc” (meaning “n ow for then”). 774 F.3d 1278 , 1281 (10th Cir. 2014).
In Cruz, the Tenth Circuit explained that the judge’s note was “clear and contemporaneous
evidence” showing that the ju dge made a proper probable cause determination and
approved the issuance of a warrant for execution, despite the lack of a signature. Id. at

8
1286 (quotation omitted). In discussing Cruz, the district court explained that the evidence
in that case “show[ed] the issuing judge’s cl ear intention that he previously made a
probable cause determination and intended to sign the warrant.” The district court
distinguished Thompson’s case, explaining that Cruz and Lyons “involve[d] a situation
where the evidence is cl ear that all constitutional requirements were met, and it was just
the signature that was lacking. That is not the case here.”
Based on the language in Lyons and Cruz, as well as the district court’s discussion
of these cases, and giving the district court the presumpti on to which it is entitled, we
conclude that the district court applied the proper burden of proof.
2. The district court did not clearl y err in finding that the state failed
to meet its burden of proof.

The state argues that it proved by a preponderance of the evidence that the reviewing
judge found probable cause to issue the sear ch warrant and intended to issue the warrant
when it was first presented to her. The state points to a num ber of factors, including that
the judge reviewed and signed the application, did not indicate rejection of the application,
and signed the warrant later submitted to her without changes; and that the deputy testified
that the judge said it was “her mistake.”
The district court determined that this evidence did not satisfy the state’s burden. In
deciding to suppress the evidence, the district court “refuse[d] to uphold the validity of a
search warrant with only the applying office r’s testimony that the judge made a probable
cause determination and intended to sign it previously.” The court found the deputy’s
testimony alone “insufficient” and noted that, unlike Lyon and Cruz, there was “nothing

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written on the second search warrant that was sent back by [the reviewing judge] that would
indicate an earlier finding of probable cause or a previous intention to sign it.”
The district court’s finding was not cl early erroneous. Here, there is no
contemporaneous record of the reviewing judge’s substantive decision-making at the time
of the application. Cf. Andries , 297 N.W.2d at 125 (relying on recorded phone
conversation in which the reviewing judge de termined probable ca use and approved a
search warrant). In addition, although the deputy testified that the judge did not reject the
warrant, not rejecting the warrant is different from evidence affirmatively demonstrating
that the judge intended to sign the warrant. Cf. id. And the judge’s statement that it was
“her mistake,” as testified to by the deputy, ma y give rise to the inference that the judge
determined probable cause and intended to si gn the warrant, but another inference could
be that the mistake was not making the determination and decision to sign at the time. On
the basis of the record before it, the district court did not clearly err in finding that the state
failed to meet its burden of proving that the judge found probable cau se and intended to
issue the warrant at the time of the application. Based on this findi ng, the district court
correctly concluded that the warrant was constitutionally invalid.
B. The district court did not err in determining that the unsigned warrant
constituted a serious and substantial violation of Minnesota statute.

The state argues that the district court erre d in determining that the judge’s failure
to sign the warrant constituted a serious and substantial violation of Minnesota statute. On
established facts, a district court’s interpreta tion and application of a statute is a question

10
of law, subject to de novo review. State v. Carufel, 783 N.W.2d 539, 542 (Minn. 2010);
State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).
Minnesota statutory law defines a search warrant as “an order in writing, in the name
of the state, signed by a court . . . directed to a peace officer, commanding the peace officer
to make a search as authorized by law and hold a ny item seized, subject to the order of a
court.” Minn. Stat. § 626.05, subd. 1 (2 016). The statute prov ides that, upon a
determination of probable caus e, “the judge must issue a signed search warrant, naming
the judge’s judicial office,” to a peace office r, directing the place to be searched. Minn.
Stat. § 626.11(a) (2016).
The exclusionary rule may be invoked for nonconstitutional, statutory violations in
the warrant process. State v. Jordan, 742 N.W.2d 149, 151 (Minn. 2007). Suppression is
required when “the violation of the statute was a serious one that subverted the purpose of
the statute.” Id. However, mere technical violations do not require suppression. State v.
Goodwin, 686 N.W.2d 40, 41 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).
The state argues that suppre ssion of evidence should be limited to circumstances
where it is necessary to dete r law enforcement from engaging in conduct contrary to
constitutional requirements. It contends that the district court’s decision “allows the form
of the search warrant [to] control over s ubstance by preventing the State from rebutting a
suppression motion . . . [with] te stimony that constitutional provisions for the issuance of
the search warrant had been complied with.”
The state’s concerns are misplaced in this case. As the district court pointed out,
Thompson’s case is distinct from other cases where evidence sufficiently established that

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a judge had found probable cause despite the judge’s failure to sign a warrant. Cf. Andries,
297 N.W.2d at 125 (finding signature requireme nt “purely ministerial” where judge, in a
recorded phone conversation, delegated th e signing of the warrant to officer after
determining that probable ca use was present over the phone in recorded conversation).
Here, the district court determined that a prior probable cause determination was not
established and that the unsigned warrant was therefore constitutionally invalid. In these
circumstances, the district court did not err in concluding that the absence of a judge’s
signature on the warrant was a serious and substantial statutory violation.
II. The district court did not abuse its discretion in declining to reopen the
hearing.

The state challenges the district court’s refusal to reopen the suppression hearing to
permit testimony from the reviewing judge.
As an initial matter, Thompson argues that th is court lacks jurisdiction to consider
this issue because the state di d not file a notice of appeal from the district court’s order
denying the state’s motion to reopen. “The interpretation of the rules of criminal procedure
is a question of law subject to de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn.
2005); see also State v. Coles, 862 N.W.2d 477, 479 (Minn. 2015) (holding same).
Thompson contends that the state was required to file a notice of appeal of the
district court’s denial of its motion to reopen within the timeframe specified in Minn. R.
Crim. P. 28.04. Under subdivision 2(1) of that rule, a prosecutor must appeal from a
pretrial order within five days after entry of the order staying the proceedings. Here,
following the suppression order, the state simultaneously filed a notice of appeal with the

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court of appeals and a motion to reopen the omni bus hearing with the district court. The
state then obtained from this court a stay and a remand to pursue its motion before the
district court. After the district court deni ed the state’s motion, the state, having received
a final determination, reinstated its previous appeal. Because we granted the state’s motion
to stay and remand the case to the district court to pursue its motion to reopen the omnibus
hearing, and because the state reinstated its appeal after that motion was decided, the issue
about reopening the hearing is properly before us. Cf. In re Marriage of Rettke , 696
N.W.2d 846, 850 (Minn. App. 2005) (holding th at when a civil appeal is properly taken
from the underlying judgment, the appellate c ourt has discretion to review a subsequent,
nonappealable order denying a motion).
We turn to the merits of the state’s ar gument. “Although the rules of criminal
procedure do not specifically authorize motions for reconsideration of omnibus rulings, the
district court has the inherent authority to consider such a motion.” State v. Papadakis ,
643 N.W.2d 349, 356-57 (Minn. App. 2002); see also State v. Needham, 488 N.W.2d 294,
297 (Minn. 1992) (remanding for reopened omni bus hearing). The state argues that, by
denying its motion, the district court did not give it a full and fair opportunity to develop a
complete evidentiary record. In particular, the state sought to introduce testimony from the
reviewing judge, and submitted as an offer of proof an affidavit that it obtained from the
judge following issuance of the suppression order.
In Needham, the Minnesota Supreme Court held that the state did not have sufficient
notice that the adequacy of a Miranda warning was at issue and remanded to the district
court for reopening of the omni bus hearing to give the state an opportunity to meet its

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burden of proof. Id. at 296-97. Reopening of the omnibus hearing was “justified in order
to give [a party] a full and fa ir opportunity to meet its burde n of [proof]” in an omnibus
hearing when new issues are raised posthearing. Id. at 297.
Here, unlike in Needham, the state had notice of the issue to be addressed at the
omnibus hearing. And, as T hompson points out, “[t]he State, as with any witness, could
have subpoenaed [the reviewing judge] to tes tify, but chose not to.” Only after the
suppression order issued did the state seek to introduce previously available testimony that
the reviewing judge found probable cause and intended to issue a warrant on September 14.
Denying the state’s motion to reopen was within the district court’s discretion.
III. The district court erred in suppressing the recycling-bin evidence without first
determining whether Thompson had a reasonable expectation of privacy.

The state argues that the district cour t erred in suppressing the recycling-bin
evidence without determining whether Thompson had a reasonable expectation of privacy
in the bin.
As a threshold issue, Thom pson argues that the state forfeited the expectation-of-
privacy argument because it did not raise the argument before or at the omnibus hearing.1
The United States Supreme Court has made cl ear that “[t]he proponent of a motion to
suppress has the burden of establishing th at his own Fourth Amendment rights were

1 Thompson uses the term “sta nding” rather than the phrase “reasonable expectation of
privacy.” The search was of Thompson’s resi dence, and Thompson was the target of the
search. In such a case, “the inquiry is not one of ‘standing,’ but whether the disputed search
has infringed on the privacy interest of a homeowner that the Fourth Amendment was
designed to protect.” Jordan, 742 N.W.2d at 155-56.

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violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99
S. Ct. 421, 424 n.1 (1978). Thompson contends, however, th at the state was required to
raise the expectation-of-privacy argument at the omnibus hearing in order to give
Thompson notice that he must meet his burden of proving that expectation.
Thompson cites Garza v. State , in which the state ch allenged the defendants’
standing to contest the need for an unannounced-entry warrant because they were not home
at the time the search was conducted. 632 N.W.2d 633, 637 (Minn. 2001). The Minnesota
Supreme Court concluded that “the state waived the issue of standing by failing to raise it
in an omnibus hearing in the trial court.” Id. However, in Garza, the state did not raise
the issue of standing at either the omnibus he aring or the postconvic tion hearing, instead
raising the issue for the first time on appeal. Id.
Here, at the omnibus hearing, the state offered testimony that directly related to the
question of Thompson’s reasonable expectation of privac y. The deputy and the officer
who conducted the search of the recycling bin both testified to the bin’s location, including
pointing out the alley’s position on an aerial photograph. And the officer who conducted
the search testified that the bin contained recyclables. In its posthearing response brief, the
state challenged Thompson’s expectation of privacy in the recycling bin. Citing California
v. Greenwood, 486 U.S. 35, 108 S. Ct . 1625 (1988), the state argued that, irrespective of
the validity of the search warrant, “an individual does not have a reasonable expectation of
privacy in garbage and other items left at the curb and a warrantless search of such garbage
does not violate the Fourth Amendment to the United States Constitution.”

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Thompson argues that lack of notice di minished his opportunity to rebut the
expectation-of-privacy argument. But Thompson was able to cross-examine the witnesses
regarding the location and contents of the recycling bins, and he identifies no evidence he
would have offered at the omnibus hearing to otherwise establish an expectation of privacy
in the bin. Therefore, we conclude that the state did not forfeit its challenge to Thompson’s
expectation of privacy and that the suppression issue is properly before this court.
Turning to that issue, this court “independently review[s] the facts and determine[s],
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) (citing State v. Othoudt,
482 N.W.2d 218, 221 (Minn. 1992)). The state argues that the district court’s rejection of
the expectation-of-privacy argument was err oneous because, even if the search warrant
was invalid, suppression is not justified if Thompson had no reasona ble expectation of
privacy in the recycling bin. The state ci tes both United States and Minnesota Supreme
Court cases holding that there is no reasonabl e expectation of privacy in garbage left out
on the curb. See Greenwood, 486 U.S. at 39-40, 108 S. Ct. at 1628; State v. McMurray,
860 N.W.2d 686, 694-95 (Minn. 2015).
Thompson argues that, because the search of the bin occurred du ring execution of
an invalid warrant, and because there is no evidence that the bin would have been searched
independently of execution of that warrant, the evidence recovered from it is “tainted” and
must be suppressed. The district court agreed, ordering suppression because the search of
the recycling bin “was done while executing the invalid warrant.”

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Generally, a warrantless search of garbage left for collection outside of the curtilage
of a home does not violate the Fourth Amendment. Greenwood, 486 U.S. at 37, 108 S. Ct.
at 1627 (concluding that a person does not have a reasonable expectation of privacy in
garbage left at the curb). The Court in Greenwood explained that it is “common knowledge
that plastic garbage bags left on or at the side of a public street are readily accessible to
animals, children, scavengers, snoops, and other members of the public.” Id. at 40, 1628-
29. Therefore, there is no reasonable expectation of privacy in garbage adjacent to a public
street.
The Minnesota Supreme Court has determin ed that Minnesota’s state constitution
provides no greater protection for garbage se t out for collection in a publicly accessible
area. McMurray, 860 N.W.2d at 693. “[T]he critical inquiry in claims of unlawful search
and seizure is whether or not the person who claims the protection of the fourth amendment
has a justifiable or reasonable expectation of privacy in the invaded place or the seized
items.” State v. Oquist , 327 N.W.2d 587, 589 (Minn. 1982) (finding no reasonable
expectation of privacy in contents of the plas tic bags placed in or near defendant’s open
garbage can).
In this case, the officers’ testimony ad dressed the location of the recycling bin
outside in the public alley, in the same location where officers had previously conducted a
lawful warrantless trash sweep. However, the district court did not make any finding as to
whether Thompson had a reasonable expecta tion of privacy in th e recycling bin. If
Thompson had no reasonable expe ctation of privacy in the bin, his Fourth Amendment
rights were not violated by the search and suppression is not warranted. Id. We conclude

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that the district court erred in rejecting th e state’s argument and remand the issue to the
court to determine whether Thompson had a reasonable expectation of privacy in the
recycling bin.
Affirmed in part, reversed in part, and remanded.