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This opinion will be unpublished and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
A17-0889

State of Minnesota,
Respondent,

vs.

Donald Charles Ancke,
Appellant.

Filed June 4, 2018
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Washington County District Court
File No. 82-CR-15-1397

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

David M. Robbins, Special Assistant State Public Defender, Minneapolis, Minnesota (for
appellant)

Considered and decided by Florey, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.

2
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant Donald Charles Ancke challenges his conviction of possession of a
firearm by an ineligible person. He alleges that the errors during his trial warrant a new
trial and that the handgun the state used to prove the offense should have been suppressed
as the product of an illegal search. Respondent State of Minnesota did not file a brief and,
in a letter, conceded that prosecutorial error requires a new trial; the state also ostensibly
asserted that the search was legal without citing any authority or responding to Ancke’s
arguments. Moreover, the state represented that it will not retry the charge against Ancke
because he has served the majority of his sentence and another trial is not supported by
“the interests of justice” or to advance judicial economy. W e affirm the district court’s
decision to deny Ancke’s motion to suppress evidence. We reverse Ancke’s conviction and
remand because we conclude that the circumstances warrant a new trial; whether to pursue
prosecution is the state’s decision.
FACTS
On January 15, 2015, Deputy Pederson and his partner, Deputy Smestad, were
looking for Ancke and Amberray Trinka, both of whom were the subject of arrest warrants.
Informants told the deputies that Ancke and Trinka were staying at a hotel together. A hotel
employee told the deputies that Ancke and Trinka were not registered as guests but were
staying in a room, and gave them the room number and a key. The deputies knocked on
the room door, received no answer, and entered the room using the key.
3
Inside, the deputies did not find the registered room guest, but found Ancke and
Trinka and arrested them. During her arrest, Trinka asked the deputies to “gather all of her
belongings and give them” to a third person, who also was in the room. As the deputies
collected Trinka’s belongings, they opened a nightstand and found a pistol, which the
deputies submitted for fingerprint and DNA tests. Testing did not reveal any fingerprints
on the weapon, but uncovered DNA from two people. The “major DNA profile” matched
Ancke, meaning that his DNA matched the majority of the DNA on the weapon.
The state charged Ancke with possessing a firearm having been previously
convicted of a crime of violence in violation of Minn. Stat. § 624.713, subd. 1(2) (2014).1
Before trial, Ancke moved to suppress the handgun, claiming that the deputies obtained it
through an illegal search. After a contested omnibus hearing, the district court denied
Ancke’s motion. At trial, a jury found Ancke guilty; the district court convicted him and
sentenced him to 60 months. Ancke appeals.
D E C I S I O N
I. Prosecutorial misconduct deprived Ancke of a fair trial.

Ancke alleges that numerous errors, mostly prosecutorial misconduct, occurred at
trial, some of which he objected to, some of which he did not. He argues that the collective
impact of these errors undermined his right to a fair trial, requiring reversal. As mentioned,
the state does not contest Ancke’s appeal regarding prosecutorial misconduct. We have an
independent duty, however, to consider the merits of all issues raised in Ancke’s brief,

1 The parties stipulated to Ancke’s previous conviction of a crime of violence.
4
despite the state’s concession. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn.
1990).
First, we consider the objected-to errors and conclude that more than one instance
of misconduct occurred because the prosecuting attorney repeatedly elicited evidence that
was inadmissible under Minn. R. Evid. 404(b), referred to an uncalled witness, placed a
bible on the counsel table in view of the jury for half of a day , and called attention to
Ancke’s decision not to testify . Second, we consider the unobjected-to error and reject
Ancke’s claim that the district court committed plain error when it allowed expert
testimony about the “majority DNA profile.” Lastly, we consider the prejudicial effect of
the prosecuting attorney’s misconduct and conclude that its cumulative effect warrants a
new trial.
A. Objected-to Prosecutorial Misconduct

A prosecutor commits misconduct if she materially undermines the fairness of the
trial by violating clear or established standards of conduct. State v. Fields, 730 N.W.2d
777, 782 (Minn. 2007). This court will reverse a district court’s determination regarding
alleged prosecutorial misconduct “only when the misconduct, considered in the context of
the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right
to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).
1. The prosecuting attorney elicited testimony on Ancke’s prior bad
acts.

Ancke argues that the prosecuting attorney committed prosecutorial misconduct by
referring to Ancke’s prior bad acts. The supreme court has held that “attempting to elicit
5
or actually eliciting clearly inadmissible evidence may constitute misconduct.2 Fields, 730
N.W.2d at 782; see also State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994) (determining
that eliciting inadmissible evidence was prosecutorial misconduct).
Generally, evidence of “another crime, wrong, or act is not admissible to prove the
character of a person in order to show action in conformity therewith.” Minn. R. Evid.
404(b). Evidence of previous bad acts may be admissible for other purposes, “such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. But in a criminal prosecution, the prior crime or wrong is not
admissible unless (1) the prosecutor provides notice of intent to admit the evidence; (2) the
prosecutor indicates what the evidence will be offered to prove; ( 3) the other crime or
wrong is proven by clear and convincing evidence; (4) the evidence is relevant to the
prosecutor’s case; and (5) the district court determines the probative value of the evidence
is not outweighed by its potential for unfair prejudice to the defendant. See id.; see also
Minn. R. Crim. P. 7.02, subd. 1 (requiring notice to defendant in writing of any crime,

2 In Fields, a prosecutor cross-examined the defendant about a prior, unrelated theft charge.
730 N.W.2d at 780. On appeal to this court, we held that the prosecutor committed
misconduct by referring to the theft because the prosecutor did not comply with the
applicable notice requirements under Minn. R. Evid. 404(b). Id. at 781-82 (summarizing
the court of appeals decision). The supreme court reversed, not because this court erred in
its analysis of the prosecutor’s failure to abide by rule 404(b)’s notice requirements, but
because this court failed to properly analyze the state’s argument under Minn. R. Evid.
608(b), which allows evidence of specific instances of conduct to impeach witnesses’
character for truthfulness. Id. The supreme court noted that while failure to abide by notice
requirements under rule 608(b) will not necessarily preclude the admission of evidence,
failure to abide by notice requirements under rule 404(b) will preclude admission. Id. at
784. Because Ancke did not testify, rule 608(b) does not apply . We conclude, however,
that it was prosecutorial misconduct to attempt to introduce this evidence without following
rule 404(b)’s notice protocols.
6
wrong, or act that may be offered at trial under Minn. R. Evid. 404(b)). Evidence of prior
crimes or wrongs is not admissible unless the prosecution provides the required notice. See
State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 172-73 (1965). But no notice is
required if the prior crime or wrong arose “out of the same occurrence or episode as the
charged offense.” Minn. R. Crim. P. 7.02, subd. 1(c).
Ancke contends that on three separate occasions, the prosecuting attorney alluded
to or elicited testimony about the arrest warrant that led the deputies to search for him.
There was no record evidence regarding the crime for which the warrant was issued. While
Ancke’s attorney objected each time the prosecution referred to the arrest warrant, the
district court held off-the-record bench conferences after each objection; thus, it is not clear
if the district court sustained or overruled Ancke’s objections. On none of these occasions,
however, did the district court issue a curative instruction.
Referencing Ancke’s arrest warrant was an attempt to introduce a previous crime or
bad act. But this evidence was not clearly inadmissible, and so the prosecuting attorney did
not commit misconduct on this basis. The discussion regarding Ancke’s warrants could
have fallen under an exception to rule 404(b), because evidence of an independent crime
or bad act may be admissible if excluding that evidence “would present an incoherent or
incomplete story of the charged crime.” State v. Hollins, 765 N.W.2d 125, 132 (Minn. App.
2009). Here, the arrest warrant explained why the deputies responded to a tip that Ancke
was at the hotel; thus, the evidence was not clearly inadmissible. Accordingly, the
prosecutor did not commit prosecutorial misconduct by eliciting clearly inadmissible
testimony about Ancke’s arrest warrant.
7
Ancke also challenges two instances in which the prosecutor elicited testimony
about Ancke’s possession of drugs, a crime for which he was never charged. First, during
direct examination, the prosecutor asked Pederson, “After you arrested [Ancke], what did
you f ind on his person?” The deputy responded, “[a] clear baggie with a green leafy
substance like marijuana.” After Ancke’s counsel objected, the district court held a bench
conference off the record; accordingly , it is not clear if the district court sustained or
overruled Ancke’s objection. Following the bench conference, the district court did not
give a curative instruction. Then, during direct examination of Smestad, the prosecutor
entered into the following exchange:
PROSECUTION: When you first started the interview with
Mr. Ancke, when did you ask him about the van?
DEPUTY: Early on in the interview. He said that they were
traveling around in the van.
PROSECUTION: Okay and that looks like it’s page 2 of his
transcript I just had you review, correct?
DEPUTY: Correct.
PROSECUTION: Okay. I want you to look through pages 3,
4, and then 5 where on line 18 he talks about the van again.
Tell me when you are done. Are you finished?
DEPUTY: Yes.
PROSECUTION: Okay. After you initially discussed the van,
and to the point where he responds on page 5, where in the van;
are you consistently talking about the van?
DEPUTY: Yes. Because we—I found some narcotics in the
van.

(Emphasis added.) The prosecutor asked for this response to be stricken, 3 and the court
instructed the jury to disregard the deputy’s comment.

3 The prosecutor asked for the deputy’s response to be stricken, and so Ancke’s attorney
did not object to this exchange. Under other circumstances, we would analy ze this
comment under the plain-error standard of review, but because we determine the collective
8
Here, the prosecutor elicited clearly inadmissible Spreigl evidence that was
unrelated to the firearm possession charge the state had filed against Ancke. There is no
indication in the record that the prosecutor provided notice under rule 404(b). Moreover,
before trial, Ancke moved to exclude photos depicting the marijuana and paraphernalia
that the deputies found in the hotel room. The district court granted the motion and barred
the state from introducing the photos. Based on this ruling, the prosecuting attorney was
required to prepare the state’s witnesses by notifying them of the court’s ruling and
instructing them not to refer to Ancke’s drug possession.4 State v. McNeil, 658 N.W.2d
228, 232 (Minn. App. 2003) (“Minnesota law is crystal clear” that the prosecutor “has an
absolute duty to prepare its witnesses to ensure that they are aware of the limits of
permissible testimony.”).
Yet, the prosecuting attorney elicited testimony about Ancke’s drug possession. On
this basis, the prosecuting attorney committed misconduct. And, while the district court

impact of the trial errors deprived Ancke of his right to a fair trial, and because the
references to Ancke’s drug possession also likely would amount to plain error, we discuss
the drug possession references together for ease of analysis. See State v. Richardson, 514
N.W.2d 573, 579 (Minn. App. 1994) (analyzing objected-to and unobjected-to errors
together because the collective effect of the errors “constitute[d] plain error”).

4 During trial, the prosecuting attorney argued to the judge that she instructed the state’s
witnesses not to refer to Ancke “as a felon in possession,” or to mention Ancke’s prior
convictions. The prosecuting attorney did not, however, assert that she instructed the state’s
witnesses not to refer to Ancke’s possession of drugs.

9
gave a curative instruction for one of the references to Ancke’s drug possession, this does
not affect our conclusion that the prosecutor engaged in misconduct.5
2. The prosecuting attorney referred to an uncalled witness.

During trial, the following exchange occurred while the defense cross-examined
Smestad:
DEFENSE: And you asked A mberray Trinka if she brought
[personal belongings] into the room?
DEPUTY: I don’t recall if I asked her that or not.
DEFENSE: And specifically, you asked her how she could
have missed seeing the gun if she brought that stuff in the
room?
PROSECUTOR: Objection, hearsay.
DEFENSE: The question is the question, Your Honor. Hearsay
is only statements. It’s his question.
PROSECUTOR: He’s offering it for the truth of the matter
asserted. He could have called her to testify and he did not.

(Emphasis added.)
Ancke contends that the prosecutor committed prejudicial misconduct by referring
to an uncalled witness —Trinka. Ancke did not immediately object to this exchange. But
shortly after the exchange, and once the jury was excused for lunch, Ancke moved for a
mistrial based on this alleged misconduct and the other misconduct that had occurred at
trial. The judge denied the motion and issued no curative instruction specifically on the
basis of the prosecuting attorney’s reference to an uncalled witness.

5 Ancke also alleges the prosecutor elicited evidence of Ancke’s prior bad acts when the
prosecutor asked Smestad, “[d]id you submit charges for each person that was involved?”
To which the deputy replied, “[a]s far as the gun aspect of it?” While it is possible to infer
from the deputy’s comment that the police could have charged Ancke with other criminal
offenses, this exchange is not sufficiently clear to amount to prosecutorial misconduct.

10
Prosecutors generally may not refer to uncalled witnesses. See State v. Shupe, 293
Minn. 395, 396-97, 196 N.W.2d 127, 128 (1972). When Ancke’s counsel referred to Trinka
while questioning Smestad, he did so to establish reasonable doubt about whether Ancke
possessed the firearm. The prosecuting attorney’s hearsay objection may have had some
merit. The prosecuting attorney’s comment about the whereabouts of an uncalled witness,
however, was clearly improper. Also, the comment attempted to shift the burden of proof
to the defense to prove reasonable doubt. See Richardson, 514 N.W.2d at 578. This was
prosecutorial misconduct. See Shupe, 293 Minn. at 396-97, 196 N.W.2d at 128.
3. The prosecuting attorney displayed a bible.

For half a day at trial, and in full view of the jury, the prosecutor displayed a bible
on the counsel table. While the jury deliberated, Ancke’s attorney moved for a mistrial
based on the presence of the bible, as well as the other instances of misconduct that
occurred at trial. 6 The district court had already instructed the prosecuting attorney to
remove the bible, but otherwise denied the motion and did not provide any curative
instruction to the jury with regard to the bible.
The supreme court has held that references to religious authority in closing
argument are “highly prejudicial” and constitute prosecutorial misconduct. See State v.
Wangberg, 272 Minn. 204, 206-07, 136 N.W.2d 853, 855 (1965). Similarly, a witness’s
beliefs or opinions on religious matters is generally inadmissible evidence. Minn. R. Evid.
610 (“Evidence of the beliefs or opinions of a witness on matters of religion is not

6 Ancke’s brief to this court alleges this error was unobjected to, but the record reflects
otherwise.
11
admissible for the purpose of showing that by reason of their nature the witness’ credibility
is impaired or enhanced.”). Based on our review of the record, there was no reason for the
prosecuting attorney to display the bible to the jury. Thus, we conclude that the prosecutor
violated a clear standard of conduct and committed prosecutorial misconduct.
4. The prosecuting attorney referred to Ancke’s right to remain
silent.

At trial, the following exchange occurred during cross-examination of Smestad:
DEFENSE: Now, when you were speaking with my client, you
asked him if he would be willing to provide a DNA test?
SMESTED: Voluntarily, yes.
DEFENSE: And he did?
SMESTED: Correct.
DEFENSE: And you asked if he would be willing to—
PROSECUTION: Objection, this is hearsay.
DEFENSE: This is legally operative evidence. My client
agreed to do this thing and then he did it.
PROSECUTION: This basically removes the defendant from
taking the stand if he asks—

(Emphasis added.) The defense interrupted the state by stating, “[w]ell, Your Honor, may
we approach?” The district court held an off-the-record conference at the bench, during
which it appears that the defense objected to the prosecuting attorney’s comment. On the
record, the district court instructed the jury to “disregard any testimony as to whether or
not the defendant does or does not take the stand. Of course, the defendant does not have
to prove his innocence in the trial. The burden is on the state.”
Generally, prosecutors may not allude “in argument to the defendant’s exercise of
the right not to testify.” State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). An indirect
reference to a “defendant’s choice not to testify” is misconduct if it “(1) manifest[s] the
12
prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) [is] such
that the jury would naturally have understood [it] as a comment on the defendant’s failure
to testify.” Zornes v. State, 880 N.W.2d 363, 372 (Minn. 2016).
Here, the jury “would naturally have understood” the prosecutor’s comments as
calling attention to Ancke’s decision not to testify. See id. For this reason, the prosecutor
engaged in prosecutorial misconduct.
B. Unobjected-to Error : the State’s Expert Testimony was Properly
Received.

Ancke did not object to another alleged error at trial. Accordingly, this court reviews
these claims under the plain-error test. See Minn. R. Crim. P. 31.02; State v. Sontoya, 788
N.W.2d 868, 872 (Minn. 2010). Under the plain-error test, “the defendant has the burden
of proving (1) an error, (2) that is plain, and (3) affects substantial rights.” Sontoya, 788
N.W.2d at 872. A plain error is one that is “clear or obvious.” Id.
Ancke alleges that the district court plainly erred by allowing expert testimony that
“improperly opined on the ultimate question of possession” by testifying that a majority
DNA profile—such as Ancke’s DNA on the weapon in this case—could not be present on
the weapon through a secondary transfer of DNA. A secondary transfer of DNA occurs
when a person’s DNA is transferred to an object by way of an intermediary.7

7 For example, a secondary transfer occurs when Person A transfers DNA to Person B by
shaking hands, Person B touches an object, and Person A’s DNA is transferred to the
object.

13
This argument lacks merit because Ancke cannot show admission of the evidence
was error, much less plain error. 8 The supreme court has stated that “[o]pinion testimony
is not objectionable merely because it embraces an ultimate issue to be decided by the
jury.” Sontoya, 788 N.W.2d at 872. Instead, the trial court must evaluate the testimony to
determine if “the expert is qualified to express the opinion, and whether the opinion is
helpful.” Id.; see also Minn. R. Evid. 702 (allowing expert testimony if expert is qualified
and testimony “will assist the trier of fact”). While the state’s expert testimony may have
functionally embraced the ultimate issue at trial, Ancke does not contend that the expert
was unqualified or that the opinion was unhelpful to the jury.
Instead, Ancke argues that admission of the expert testimony was error because it
addressed an “issue of fact and law.” See State v. Chambers, 507 N.W.2d 237, 238-39
(Minn. 1993) (holding that expert testimony as to defendant’s intent was mixed question
of law and fact). But the cases Ancke cites to support his position involve expert testimony
about the defendant’s mens rea. See id.; State v. Provost, 490 N.W.2d 93, 101-02 (Minn.
1992). In contrast, the expert in this case testified regarding physical evidence, specifically,
how and when DNA is transferred to an object. The expert did not testify about Ancke’s
subjective motivations. Chambers specifically held that experts may testify regarding

8 Ancke also moved for a new trial in a posttrial motion, alleging that he did not receive
proper notice that this expert would provide this testimony. The district court rejected his
motion. In his appellate brief fact section, Ancke alleges that he did not receive proper
notice of the testimony, but does not appear to argue for a new trial on the basis of
insufficient notice. If an argument is not supported by argument or authorities, it is deemed
waived and will not be considered on appeal unless prejudicial error is obvious. State v.
Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).
14
physical evidence and observable patterns, such as “the number and extent of the wounds,
the amount of bleeding, whether the wounds were caused by a knife or a blunt instrument,
whether a gunshot wound is a contact wound, [and] whether the wounds could or could not
have been the result of an accident.” 507 N.W.2d at 239. Because the challenged expert
testimony referred to physical evidence, we conclude that admitting the expert’s testimony
was not error.
C. Cumulative Effect of the Errors

We “are mindful that the constitution guarantees a fair trial—not a perfect or error-
free trial.” State v. Mayhorn, 720 N.W.2d 776, 792 (Minn. 2006). While prosecutorial
misconduct at Ancke’s trial was frequent, we must determine if it was sufficiently serious
to warrant a new trial. We employ two distinct standards for evaluating objected-to
prosecutorial misconduct. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). If the
misconduct was “less serious,” then “the standard is whether the misconduct likely played
a substantial part in influencing the jury to convict.” Id. (quotation omitted). “If the
misconduct was serious,” a defendant is entitled to a new trial unless “the misconduct is
harmless beyond a reasonable doubt,” which is the case “if the verdict rendered was surely
unattributable to the error.” Id. To determine whether prosecutorial misconduct was
harmless beyond a reasonable doubt, courts evaluate “how the improper evidence was
presented, whether the State emphasized it, whether it was highly persuasive, and whether
the defendant countered it.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016).
Additionally, “[t]he strength of the other evidence supporting the verdict is also a factor in
15
the analysis, but it is not dispositive” and prejudicial misconduct “can be cured by proper
instructions to the jury.” Id.
First, we determine that on sev eral occasions the prosecutor’s misconduct
undermined Ancke’s right to a fair trial. These occasions include the prosecuting attorney’s
references to Ancke’s prior bad acts. The supreme court has stated that “[q]uestions by a
prosecutor calculated to elicit or insinuate inadmissible and highly prejudicial character
evidence and which are asked in the face of a clear trial court prohibition are not tolerable.”
State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994). On this basis, we conclude that the
prosecuting attorney’s references to Ancke’s bad acts were “serious” misconduct and were
not “harmless beyond a reasonable doubt.” Powers, 654 N.W.2d at 678. The references
were repeated, persuasive, and likely not assuaged by the single curative instruction. See
State v. Reardon, 245 Minn. 509, 513, 73 N.W.2d 192, 194-95 (1955) (stating a curative
instruction may not always assuage prejudice that improper remarks may cause).
Also, the prosecuting attorney’s display of a bible at the counsel table for “half a
day,” in view of the jury, undermined Ancke’s right to a fair trial. Minnesota courts have
not determined which standard of review applies to religious references for impermissible
purposes. But given the highly prejudicial effect religious references may have an d the
absence of any justification for this misconduct, we apply the harmless-error- beyond-a-
reasonable-doubt standard of review. See Wangberg, 727 Minn. at 206-07, 136 N.W.2d at
855. While the prosecuting attorney did not comment or otherwise draw attention to the
bible, the attorney prominently displayed the bible in the jury’s view for “half a day.”
16
Additionally, no curative instruction was given. We determine this misconduct was not
harmless beyond a reasonable doubt.
We also consider whether the remaining objected-to errors require reversal. The
prosecuting attorney’s reference to an uncalled witness did not, by itself, undermine
Ancke’s right to a fair trial. The supreme court has stated that referring to an uncalled
witness is “less serious” misconduct and has applied the lower standard of review. See
State v. Parker, 417 N.W.2d 643, 647-48 (Minn. 1988); State v. Caron, 300 Minn. 123,
127-28, 218 N.W.2d 197, 200-01 (1974), abrogated on other grounds by Ramey, 721
N.W.2d at 297-99. Given that the prosecuting attorney only briefly mentioned Ancke’s
decision to not call Trinka, it is unlikely that this misconduct played a substantial role in
the jury’s decision to find Ancke guilty.
Next, we conclude that the prosecuting attorney’s reference to Ancke’s decision not
to testify was not reversible error on its own. The supreme court has held that referring to
the defendant’s right not to testify is “per se reversible error if the comments are extensive,
the comments stress to the jury that an inference of guilt from silence is a basis f or
conviction, and evidence exists that could have supported acquittal.” Zornes, 880 N.W.2d
at 372. Other references, not rising to this level of seriousness, receive harmless-error
review. Id. We determine the reference to Ancke’s decision not to testify did not rise to the
level of per se reversible error because the comment was not extensive, it did not stress an
inference of guilt, and the evidence against Ancke was strong. Further, the error was likely
harmless beyond a reasonable doubt, given the context of the statement and the strength of
the state’s case.
17
Lastly, we consider the collective impact of the prosecutorial misconduct. The
supreme court has held that the effect of multiple errors, even ones that by themselves
would not warrant reversal, may accumulate so as to deny a defendant a fair trial. See State
v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979). The supreme court has also held that
a defendant’s right to a fair trial may be undermined by cumulative errors regardless of the
strength of the state’s evidence. See Mayhorn, 720 N.W.2d at 791-92 (“[E]ven the strongest
evidence of guilt does not eliminate a defendant’s right to a fair trial.”). Here, prosecutorial
misconduct was frequent and serious. The prosecuting attorney disregarded clear standards
of professional conduct, as well as statutory and constitutional safeguards designed to
protect a defendant’s right to a fair trial. Given the circumstances, we cannot be certain
Ancke received the fair trial to which he was entitled, regardless of the strength of the
evidence against him. As a result, we reverse Ancke’s conviction and remand to the district
court because the circumstances warrant a new trial . We recognize the prosecuting
authority retains discretion regarding whether to pursue a new trial.
II. The district court correctly determined that the handgun was not the product
of an illegal search.

The United States Constitution protects against unreasonable searches and seizures.
U.S. Const. amend. IV; see also State v. Stavish, 868 N.W.2d 670, 674-75 (Minn. 2015).
A search is presumptively unreasonable when police do not have a warrant. Stavish, 868
N.W.2d at 675. A warrantless search is reasonable only if it falls within an exception to the
warrant requirement. Id. Evidence obtained through an illegal search may be excluded. See
State v. Lindquist, 869 N.W.2d 863, 868-69 (Minn. 2015).
18
“When reviewing a pretrial order on a motion to suppress evidence, we review the
district court’s factual findings under a clearly erroneous standard and its legal
determinations de novo.” State v. deLottinville, 890 N.W.2d 116, 119 (Minn. 2017).
Factual determinations are not clearly erroneous “if there is reasonable evidence to support
them.” State v. Dahn, 516 N.W.2d 539, 544 (Minn. 1994).
Before trial, Ancke moved to suppress the handgun as the product of an illegal
search, but the district court denied his motion.9 On appeal, Ancke argues that the district
court erred for two reasons. First, Ancke argues that the deputies violated his Fourth
Amendment rights by entering the hotel room without a warrant. Second, he contends that
the deputies violated his Fourth A mendment rights by searching the room and nightstand
drawer because they did not have a warrant to do so and no exception to the warrant
requirement applied. We consider these arguments in turn.
A. The entry into the hotel room did not violate Ancke’s Fourth
Amendment rights.

When the deputies entered the hotel room, they did so uninvited and without a
search warrant, 10 although they did have arrest warrants for Ancke and Trinka. In
deLottinville, the supreme court held that officers did not violate the Fourth Amendment

9 Preliminarily, the district court found Ancke was a social guest in the room with “standing
to raise” Fourth Amendment claims. See In re Welfare of B.R.K., 658 N.W.2d 565, 576
(Minn. 2003) (recognizing the reasonable privacy interest of “short-term social guest[s]”).

10 The record of the omnibus hearing does not include evidence that the deputies did not
have a search w arrant. Because Ancke challenged the entry as an illegal search, and the
state presented no evidence of a warrant, we accept that no search warrant permitted entry.

19
by entering a third party’s house to arrest a guest for whom the officers had an arrest
warrant, despite not having a search warrant to enter and search the house. 890 N.W.2d at
120. The district court in this case applied deLottinville to hold that the deputies did not
need a search warrant to enter the hotel room because they had arrest warrants for Ancke
and Trinka. We agree with the district court’s conclusion.
Ancke argues that deLottinville is distinguishable because the officers saw
deLottinville through a window in the house before they entered. Id. at 119. Ancke asks us
to limit the supreme court’s holding to this precise factual scenario. But nothing in
deLottinville suggests that the case is limited to instances when the police see the subject
of an arrest warrant before entering a third-party’s house. The United States Supreme Court
has held that police do not need a search warrant to enter the home of someone for whom
they have an arrest warrant. See Payton v. New York, 445 U.S. 573, 602-03, 100 S. Ct.
1371, 1388 (1980). And deLottinville applied Payton to conclude that “the subject of an
arrest warrant enjoys no greater protection as a guest in another’s home” than in his own
home.11 deLottinville, 890 N.W.2d at 120.
No Minnesota precedent establishes what standard of belief police must possess to
enter a third-party’s home to arrest a guest subject to an arrest warrant; the two obvious

11 Moreover, deLottinville pointed out that a majority of the federal circuits have held that
officers do not need a search warrant to enter a third-party’s home to arrest the subject of
an arrest warrant. 890 N.W.2d at 120-21. In several of the federal cases the supreme court
cited as persuasive, the police did not see the suspect in the third party’s home. See, e.g.,
United States v. Bohannon, 824 F.3d 242, 245-46 (2d Cir. 2016); United States v. Jackson,
576 F.3d 465, 467 (7th Cir. 2009).

20
alternatives are reasonable belief and probable cause. Federal circuits have addressed this
question and determined the police must have “reason to believe the suspect is within,” but
disagree about the definition of “reason to believe.” 12 Jackson, 576 F.3d at 469. Some
federal courts have held that a reason to believe is a lesser standard than probable cause,
while others hold that the two standards are the same. Id.
We do not need to decide this issue, however, because the deputies in Ancke’s case
had probable cause—the higher potential standard—to enter the hotel room and arrest
Ancke. Probable cause exists when “the objective facts are such that under the
circumstances a person of ordinary care and prudence (would) entertain an honest and
strong suspicion that a [specified fact exists].” State v. Camp, 590 N.W.2d 115, 118 (Minn.
1999) (quotation omitted). Here, the district court found that the deputies had received
information “‘from the street’ that the van [that Ancke] was driving was located at the
motel” and that the deputies “confirmed with the hotel owner that [Ancke] was present in
room 222.” The record supports these findings. Based on these findings of fact, we
conclude that a person of ordinary care would entertain a strong suspicion that Ancke was
in the hotel room.
Accordingly, the deputies did not violate Ancke’s Fourth Amendment rights by
entering the hotel room without a search warrant.

12 Federal courts derived the “reason to believe” standard from the United States Supreme
Court’s decision in Payton, which held that officers must have “reason to believe the
suspect is within” his home in order for an arrest warrant to be sufficient justification for
entering a suspect’s home when no search warrant has been issued. Jackson, 576 F.3d at
469 (quoting Payton, 445 U.S. at 602-03, 100 S. Ct. at 1388).
21
B. The deputies’ search of the room and nightstand drawer did not violate
Ancke’s Fourth Amendment rights.

Once the deputies were in the hotel room and had arrested Trinka, she asked them
to “gather her belongings.” As the deputies did so, they opened the nightstand drawer and
found the handgun which later provided the basis for Ancke’s conviction. The district court
found that Trinka had authority to consent to a search of the hotel room and did so when
she asked the deputies to collect her belongings. On appeal, Ancke contends that the district
court erred, arguing that Trinka lacked authority to consent and that Trinka did not consent
to the search.
Consent is an exception to the warrant requirement. In re Welfare of D.A.G., 484
N.W.2d 787, 789 (Minn. 1992). Further, “a third party having common authority over
premises or effects ma y consent to a search even though the [other] person . . . does not
consent.” Id. This court has held that a third party may consent to a search of the premises
by “generally having joint access or control for most purposes” and that co-tenants “have
assumed the risk that one of their number might permit the common area to be searched.”
State v. Thomas, 598 N.W.2d 389, 392 (Minn. App. 1999) (quoting United States v.
Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993 n.7 (1974)), review denied (Minn.
Sept. 28, 1999).
First, we consider whether Trinka had authority to consent to a search of the hotel
room. In Thomas, this court determined that a visitor in another person’s hotel room had
authority to consent to a search of the room because the visitor had appeared with the
registered room guest, requested a room change, possessed a key to the room, and told
22
police she was “staying in the room.” 598 N.W.2d at 392. Here, the district court found
that Ancke and Trinka “were free to enter the room at will.” Also, the district court found
that Ancke and Trinka stayed overnight in the room and “had their belongings inside the
room.” The record supports the district court’s conclusion that Trinka had authority to
consent to a search of the hotel room.
Second, we consider whether Trinka had authority to consent to a search of the
nightstand where the deputies found the firearm. It is true that consent to search may be
limited, and specific places may be outside the scope of the consent if one person had a
greater claim to privacy than the person giving consent. For example, in Thomas, a visitor
in another person’s hotel room did not have the authority to consent to a search of the
registered guest’s locked safe because the registered guest possessed the only key to the
safe. Id. Here, however, the record supports the district court’s determination that Trinka
had the same expectation of privacy in the nightstand drawer as Ancke since they were
both guests in the room.
Third, we consider whether Trinka consented to the search of the room, including
the nightstand. While Trinka did not explicitly tell the deputies they could search the room
or the nightstand, she asked them to “gather her belongings” and did not specify which
belongings. Consent to a search may be implied. See State v. Powell, 357 N.W.2d 146,
148-49 (Minn. App. 1984) (holding mother consented to search by inviting police officer
into house to “speak with” son), review denied (Minn. Jan. 15, 1985). Here, the deputies
could not have gathered Trinka’s belongings without searching the room , including the
nightstand.
23
In sum, the deputies’ entry of the hotel room was supported by a valid warrant for
the arrest of its occupants, and the deputies’ subsequent search of the nightstand fell under
the consent exception to the warrant requirement. Thus, the district court correctly
determined there was no violation of Ancke’s Fourth Amendment rights and denied the
motion to suppress evidence.
Affirmed in part, reversed in part, and remanded.