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This opinion will be unpublished and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
A17-0803

State of Minnesota,
Respondent,

vs.

Michael David Henry,
Appellant.

Filed May 7, 2018
Affirmed
Kirk, Judge

Hennepin County District Court
File No. 27-CR-16-27333

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his convictions of first-, third-, and fifth -degree controlled-
substance crime s, and of four counts of possession of ammunition or a firearm by an

2
ineligible person, arguing that the district court committed reversible error by accepting his
jury-trial waiver because, pursuant to Minn. R. C rim. P. 26.01, subd. 4, the parties failed
to identify a dispositive pretrial issue , and appellant did not ackno wledge that appellate
review would be limited to the pretrial issue. We affirm.
FACTS
In July 2016, Bloomington police officers received information from a “cooperating
individual” that a Richfield resident was dealing methamphetamine and storing the drugs
in two storage lockers at different self -storage facilities in Bloomington. Subsequent
investigation by law enforcement identified appe llant Michael David Henry as the
suspected dealer. The officers conducted canine sniffs outside the storage lockers using a
certified narcotics dog, which alerted the officers to the presence of narcotics.
On July 7, the officers obtained and executed war rants to search both storage
lockers. In the first storage locker, unit 15, located at a facility on West American
Boulevard, they discovered two rifles and .06 grams of a substance that field tested positive
for methamphetamine. In the second locker, un it 363, located at a facility on West 81st
Street, they discovered approximately 1,534 grams of a substance that field tested positive
for methamphetamine.
The officers then located appellant, conducted a traffic stop of his vehicle, and
arrested him. The officers conducted a canine sniff of the exterior of appellant’s vehicle ,
and the narcotics dog alerted to the presence of narcotics. An officer found a loaded
handgun magazine in the back pocket of the driver’s seat and an unrecoverable quantity of

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suspected marijuana crumbs on the floorboards of the vehicle. While detained in the back
of a squad car, appellant admitted that there was additional contraband in his home.
That night, the officers obtained and executed a warrant to search appellant’s home
in Richfield. There, they found a pistol, ammunition, 21 OxyContin pills, .84 grams of a
substance that field tested positive for methamphetamine, and 45.87 grams of marijuana
wax that field tested positive for tetrahydrocannabinol.
On July 8, the officers provided appellant a Miranda warning and interviewed him.
Appellant admitted to using both storage lockers to facilitate drug sales and to possessing
the methamphetamine, firearms, ammunition, and OxyContin pills recovered by the
officers. Appellant als o admitted to receiving 30 OxyContin pills without a prescription
and to giving away some of the pills.
Respondent State of Minnesota charged appellant with seven offenses: first-degree
sale of a controlled substance in violation of Minn. Stat. § 152.021, subd. 1(1) (2014),
relating to the methamphetamine; third -degree sale of a controlled substance in violation
of Minn. Stat. § 152.023, subd. 1(1) (2014), relating to the OxyContin; fifth -degree
possession of a controlled substance in violation of Minn. Sta t. § 152.025, subd. 2(a)(1)
(2014), relating to the marijuana; and four counts of possession of ammunition or a firearm
by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(2) (2014), relating to
the firearms and ammunition discovered in his home, vehicle, and storage locker.
Appellant moved to suppress the evidence found in the search of the storage lockers,
his home, and his vehicle, and to suppress the statements he made while detained in a squad
car after his arrest and at an interview at jail the next day. A ppellant argued that the

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evidence discovered in the searches of the storage lockers was unlawfully obtained, and he
contested the probable-cause basis of the search warrants, the canine sniffs of the lockers,
and the execution of the warrant to search unit 363. Appellant next argued that the evidence
discovered in the search of his home was unlawfully obtained be cause the search warrant
was derived from the fruit of the unlawful searches of the storage lockers and appellant’s
postarrest statements taken without a Miranda warning, and a nighttime search was
unjustified. Appellant also argued that the police lacked reasonable suspicion to search his
vehicle after his arrest and that the canine sniffs were unreliable. Finally, appellant argued
that his July 7 statements were inadmissible because he received no Miranda warning and
that his July 8 confession was coerced despite receiving a Miranda warning.
Following a contested omnibus hearing , t he district court granted appellant’s
motion, in part, concluding that appellant’s July 7 statements should be suppressed because
the officers provided no Miranda warning. The district court denied the remaining portions
of appellant’s motion, concluding that the search warrants and canine sniffs of the storage
lockers were lawful and properly executed, that the warrant to search appellant’s home,
even having suppressed his July 7 statements, was lawful and properly executed, that the
search of his vehicle was lawful, and that his July 8 confession was not coerced.
Appellant waived his right to a jury trial, stipulated to the state’s evidence, and
agreed to submit the case to the district court for a determination of guilt or innocence
pursuant to Minn. R. Crim. P. 26.01, subd. 4. At the February 13, 2017 hearing, the state
represented to the district court that appellant had agreed to make the necessary waivers to
preserve for appellate review the “pretrial rulings .” The state submitted a written

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stipulation of the parties’ agreement. Appellant’s attorney asked whether appellant
intended to “enter into the option that the [s]tate just put on the record of submitting this
case on stipulated facts, preserving your right to appeal our pretrial litigation .” Appellant
responded, “Yes.” Appella nt then acknowledged his understanding that, in proceeding
under Minn. R. Crim. P. 26.01, subd. 4, he was waiving his right to a jury trial, to testify
on his own behalf, to ha ve any witnesses testify on his behalf, and to confront and cross-
examine the st ate’s witnesses. The parties’ written stipulation memorialized the same
waivers and provided that “[t]he parties have agreed that the issue presented at the
evidentiary hearing is dispositive in the case.” The prosecutor, appellant, and appellant’s
attorney signed the stipulation.
After the case was submitted on the prosecution’s evidence, the district court found
appellant guilty of all charges, convicted him of all offenses, and sentenced him to 98
months in prison.
On May 22, 2017, appellant filed his appeal. On October 20, appellant filed a
motion to stay his appeal and to remand his case to the district court to “compel the parties
. . . to follow the procedure required by Minnesota Rule of Criminal Procedure 26.01,
Subdivision 4,” arguing that (1) the parties had not identified a single dispositive pretrial
issue and (2) appellant had not acknowledged that the scope of appellate review would be
limited to the pretrial issue. In an order dated November 1, 2017, this court denied the
motion, concluding that the parties had complied with Minn. R. Crim. P. 26.01, subd. 4 .
Appellant filed a second motion, requesting reconsideration of his motion or in the

6
alternative a stay and remand for postconviction proceedings , which this court denied in
an order dated November 9, 2017.
This appeal follows.
D E C I S I O N
Appellant argues that the district court erred in accepting his jury-trial waiver under
Minn. R. Crim. P. 26.01, subd. 4, because (1) the parties did not agree that a specified
pretrial issue was dispositive of the case and (2) appellant did not acknowledge, in writing
or on the record, that appellate review would be limited to the dispositive pretrial issue. 1
Minn. R. Crim. P. 26.01, subd. 4 , “allows a criminal defendant to plead not guilty;
waive all trial-related rights, including his or her right to a jury trial; stipulate to the state’s
evidence in a trial to the court; and then appeal a dispositive, pretrial ruling .” State v.
Myhre, 875 N.W.2d 799, 802 (Minn. 2016). The rule was enacted to “replace[] Lothenbach
as the method for preserving a dispositive pretrial issue for appellate review in a criminal
case.” Id.
In Myhre, the Minnesota Supreme Court recognized that “strict compliance” with
the provisions of Minn. R. Crim. P. 26.01, subd. 4 , has not been required and that a

1 Respondent contends that the law-of-the-case doctrine bars appellant from seeking further
appellate review of his waiver because two previous orders addressed the same issues that
appellant raises in this appeal. However, the law -of-the-case doctrine is a “discretionary
doctrine developed by the appellate courts to effectuate the finality of appellate decisions.”
Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994) . We have previously recognized that
the doctrine is not a “blanket rule which precludes us from re-examining an issue that was
brought before the special term panel.” Banque Internationale Luxembourg v. Dacotah
Cos., 413 N.W.2d 850, 852 (Minn. App. 1987). On this unique record , we will consider
the appeal on its merits and independently review the issues raised by appellant. See id.

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substantial amount of procedural error has been tolerated “when the record shows that the
parties clearly intended to achieve the outcome contemplated by either Rule 26.01,
subdivision 4 , or Lothenbach.” Id. at 804. Accordingly, the supreme court held that
appellate review of unobjected -to procedural errors committed under Minn. R. Crim. P.
26.01, subd. 4, is subject to plain-error analysis. Id. at 805-06.
Under the plain -error test, a ppellant must show (1) an error, (2) that is plain, and
(3) that affects his substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
An error is plain when it “contravenes case law, a rule, or a standard of conduct.” State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If all three prongs of the three -part test are
met, we then consider “whether [we] should address the error to ensure fairness and the
integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740. Because appellant
failed to object to the alleged errors in district court, we will review for plain error.
I. Dispositive issue
Appellant argues that the district court committed prejudicial plain error because the
parties did not identify that a single pretrial issue was “dispositive of the entire case,” as
required by the plain language of rule 26.01, subdivision 4. We disagree.
“The interpretation of the rules of criminal procedure is a question of law that we
review de novo. We interpret court rules in accordance with the rules of grammar and give
words and phrases their common and approved usage.” Dereje v. State, 837 N.W.2d 714,
720 (Minn. 2013) (quotation and citation omitted). “In construing a procedural rule, we
consider both the plain language of the rule and its purpose.” State v. Burdick, 795 N.W.2d
873, 875 (Minn. App. 2011).

8
Minn. R. Crim. P. 26.01, subd. 4, provides, in part:
(a) When the parties agree that the court ’s ruling on a
specified pretrial issue is dispositive of the case, or that the
ruling ma kes a contested trial unnecessary, the following
procedure must be used to preserve the issue for appellate
review.
. . . .
(c) The defendant and the prosecutor must acknowledge
that the pretrial issue is dispositive, or that a trial will be
unnecessary if the defendant prevails on appeal.
. . . .
(g) The defendant and the prosecutor must make the
preceding acknowledgments personally, in writing or on the
record.
The purpose of the rule is to promote efficient use of judicial resources and to preserve a
defendant’s right of appeal while avoiding an otherwise unnecessary jury trial. State v.
Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).
Rule 26.01, subdivision 4(a), (c), and (g), provide that when the parties agree that a
“specified pretrial issue is dispositive of the case,” they must personally acknowledge that
the issue is dispositive in writing or on the record. Here, the parties represented to the
district court in their written stipulation and at the February 13, 2017 hearing that they had
reached a n ag reement under rule 26.01, subd ivision 4. The parties’ stipulation, which
appellant and the prosecutor signed, stated that appellant had filed a pretrial motion to
suppress evidence in which he contested the validity of the searches and his postarrest
statements. The stipulation also stated that the parties had submitted briefs and oral
argument on the motion, and that “[t]he parties have agreed that the issue presented at the
evidentiary hearing is dispositive in the case.”

9
Despite the parties’ apparent acknowledgment that the pretrial evidentiary issue was
dispositive, appellant contends that the district court’s ruling actually comprised “multiple
independent suppression issues—not one specified dispositive suppression issue,” and that
the entire suppression ruling cannot be considered a dispositive issue under the rule.
“[E]vidence discovered by exploiting previous illegal conduct is inadmissible” and
is “considered fruit of the poisonous tree.” State v. Olson, 634 N.W.2d 224, 229 (Minn.
App. 2001) (quotation omitted) (citing Wong Sun v. United States , 371 U.S. 471, 488, 83
S. Ct. 407, 417 (1963)), review denied (Minn. Dec. 11, 2001).2 In appellant’s suppression
motion, appellant advanced several theories in support of his argument that the storage-
locker searches were unlawful, and therefore that the evidence should be suppressed. As
grounds to suppress the evidence discovered in his home, a ppellant argued the search of
his home was, in part, based on evidence tainted by the unlawful storage-locker searches.
Further, the evidence discovered through the subsequent search of appellant’s vehicle arose
from his seizure and arrest , which law enforcement initiated based on the evidence they
discovered in the storage lockers. In sum , all of the physical evidence of narcotics,
firearms, and ammunition, for which appellant was convicted of seven offenses, was
discovered through the successive searches of the storage lockers, appellant’s vehicle, and
his home, and is connected under the fruit -of-the-poisonous-tree doctrine to the initial
storage-locker searches, which appellant challenged. Accordingly, the district court’s

2 The determination of whether such “evidence was obtained by means sufficiently
distinguishable to be purged of the primary taint ” requires application of a multi-factor
balancing test, which we do not reach because appellant did not challenge the merits of the
district court’s suppression ruling in this appeal. Id.

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pretrial ruling on the lawfulness of the storage-locker searches is dispositive in this case.
We conclude that the district court did not err in accepting appellant’s waiver pursuant to
rule 26.01, subd ivision 4, based on the parties’ agreement or acknowledgment of the
dispositive pretrial issue.
II. Acknowledgment that appellate review is limited to the dispositive issue
Appellant next argues that the district court committed prejudicial plain error
because appellant failed to acknowledge, in writing or on the record, that, pursuant to rule
26.01, subdivision 4, appellate review would be limited to the dispositive pretrial issue.
Minn. R. Crim. P. 26.01, subd. 4(f) , provides that “[t] he defendant must also
acknowledge that appellate review will be of the pretrial issue, but not of the defendant ’s
guilt, or of other issues that could arise at a contested trial. ” Minn. R. Cri m. P. 26.01,
subd. 4(g), provides that “[t] he defendant and the prosecutor must make the preceding
acknowledgments personally, in writing or on the record.”
Here, at the February 13 hearing, the prosecutor described the parties’ agreement as
preserving app ellant’s right to appeal “the pretrial rulings” while appellant’s attorney
described the agreement as preserving appellant’s right “to appeal [his] pretrial litigation.”
However, the record indicates that neither appellant nor the prosecutor expressly
acknowledged, in writing or on the record, that appellant could seek appellate review of
only the pretrial suppression ruling. Because the text of rule 26.01, subd ivision 4(g),
requires that appellant acknowledge the limited scope of appellate review , we conclude
that the district court committed a plain error by failing to require such acknowledgment.
See Myhre, 875 N.W.2d at 808-09 (concluding that the district court committed plain error

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because the parties failed to acknowledge the dispositive nature of the pretrial issue when
the text of Minn. R. Crim. P. 26.01, subd. 4, clearly requires it).
To satisfy the third prong of the plain -error test, appellant must show that the error
impacted his substantial rights by affecting the outcome of the case. Griller, 583 N.W.2d
at 741. Appellant claims that his failure to acknowledge the scope of appellate review
prevented him from challenging whether the state proved his guilt beyond a reasonable
doubt. However, Minn. R. Crim. P. 26.01, subd. 4, defines the scope of appellate review
and specifically prohibits a defendant from challenging his guilt.
Here, the record shows that the parties intended to enter an agreement under rule
26.01, subdivision 4, and appellant cannot explain how a failure to acknowledge the scope
of appellate review prejudiced him. T he parties acknowledged multiple times at the
February 13 hearing and in their stipulation that they had reached an agreement under rule
26.01, subdivision 4. In addition, appellant was represented by counsel at the hearing and
confirmed that he wanted to “submit[] this case on stipulated facts, preserving [appellant’s]
right to appeal [his] pretrial litigation, [and] agreeing to a sentence of 98 months.” Based
on this record, there is no reasonable likelihood that the outcome would have been different
had appellant expressly acknowledged the limited scope of appellate review . A ppellant
received the benefit of the parties’ agreement to proceed under rule 26.01, subdivision 4,
and therefore, we conclude that the district court’s error had no impact on appellant’s
substantial rights. Appellant cannot satisfy the third prong of the plain-error test, and he is
not entitled to relief based on this error.

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Because appellant does not challenge the me rits of the district court’s suppression
ruling in his appeal of his convictions, we do not reach the issue of whether the district
court erred in suppressing, or not suppressing, the evidence.
Affirmed.