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This opinion will be unpublished and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
A17-0936

State of Minnesota,
Respondent,

vs.

Nathan Kenneth Kmetz,
Appellant.

Filed May 14, 2018
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-15-4623

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Halbrooks, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the probable cause pr oviding the basis for the search warrant
for his apartment. Appellant also argues that the search warrant for his apartment did not

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provide a basis for law enforcement to arrest him three blocks away from his home and
that any evidence seized from him during his a rrest should be suppressed. Because there
was probable cause for the district court to issue the search warrant, and any admission at
trial of evidence seized from him was harmless beyond a reasonable doubt, we affirm.
FACTS
In early 2015, the Southwest Hennepin Drug Enforcement Taskforce sought a
search warrant for appellant Nathan Kmetz’s apartment. The search warrant application
and affidavit were based on the following information.
Police received information from a concerne d citizen that appellant was using and
selling methamphetamine out of his Hopkins apartment. The concerned citizen provided
appellant’s address and apartm ent number, and police verified it using the department of
motor vehicles’ website. After reviewing police records, the search warrant affiant located
an information report from 2010 that “an individual reported to police that [appellant] was
selling methamphetamine out of his apartment . . . .” The affiant also spoke to a “law
enforcement source that was familiar with Kmetz” who knew appellant’s address and that
appellant was currently in possession of three shotguns. The affiant spoke to yet another
law enforcement source who reported that appellant was “considered to be hostile towards
law enforcement.” The affiant learned that appellant’s criminal history included an arrest
in 2004 for drug possession and several driver’s license violations. Finally, the officers
used a narcotics detection dog that positively alerted at the door of appellant’s apartment,
indicating the presence of a drug odor.

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The district court issued the warrant, permitting officers to search appellant’s
apartment and “[a]ny person(s) currently occupying the resi dence . . . , any vehicles
associated with the residence, or the person(s) found therein.” The district court authorized
police to seize evidence of controlled substances, packaging equipment, mobile phones and
their contents, documents, firearms, and other evidence.
Police, after obtaining a search warrant fo r appellant’s apartment, waited outside the
building for appellant to leave. Appellant left in his car, a nd officers performed a traffic
stop a few blocks away and arrested appellant. Incident to the arre st, officers seized a
phone carried by appellant. Police also seized appellant’s keys, and used them to access
his apartment. Inside the ap artment, officers discovered baggies containing controlled
substances and two glass pipes.
At trial, the state introduced text me ssages from appellant’s cell phone. The text
messages showed appellant discussing the sale of a “teen” with another person. An officer
explained to the jury that “teen” is slang for an ounce of methamphetamine. Appellant did
not testify. The jury fou nd appellant guilty of a fifth- degree controlled substance
possession crime and appellant appealed.
D E C I S I O N
I. There was a substantial basis for the district court to conclude that probable
cause existed to search appellant’s apartment.

Appellant argues the search warrant appl ication and affidavit did not establish
probable cause to support the issuance of a s earch warrant for his apartment. The United
States and Minnesota Constitutions require that probable cause support a search warrant.

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U.S. Const. amend. IV; Minn. Const. art. I, § 10. When reviewing a district court’s
probable-cause determination made in connection with the i ssuance of a search warrant,
this court’s task is to dete rmine whether the issuing judge “had a substantial basis for
concluding that probable cause existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn.
2001). This court grants great deferen ce to an issuing court’s probable cause
determination. Id. The deference is not boundless, and this court may reverse if an issuing
court’s “probable-cause determination reflected an improper analysis of the totality of the
circumstances.” State v. Gabbert , 411 N.W.2d 209, 212 (Minn. App. 1987) (quotation
omitted). Likewise, this cour t may determine a search warra nt is void and suppress the
fruits of the search if “it is demonstrated by a preponderance of the evidence that the affiant
knowingly or with reckless disregard for th e truth included a false statement in the
affidavit.” State v. McGrath , 706 N.W.2d 532, 540 (Minn. App. 2005), review denied
(Minn. Feb. 22, 2006).
Appellant first argues the application an d affidavit did not show the concerned
citizen’s veracity, reliability, and basis of knowledge for the in formation. Appellant then
argues that other information in the warrant affidavit did not support a finding of probable
cause. Next, appellant argues that the warran tless dog sniff outside his apartment door is
unconstitutional and cannot be used to show probable cause. Finally, appellant argues that,
considering the totality of the circumstances, the warrant application and affidavit did not
establish probable cause, and the district c ourt’s decision to issue the warrant was not
harmless error.

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A. The Concerned Citizen
If a concerned citizen provides informati on, law enforcement is not required to
verify the person’s credibility and veracity through i ndependent corroboration. State v.
Davis, 732 N.W.2d 173, 1 82-83 (Minn. 2007); McGrath, 706 N.W.2d at 540. Courts
presume concerned citizens are believable and reliable because they do not seek immunity
from prosecution or leniency in sentencing, and therefore, unlike informants, they are
distinct from other people who pr ovide information to police. McGrath, 706 N.W.2d at
540. To qualify a concerned citizen as a source of information, a search warrant affidavit
should provide some details regarding the person that dem onstrates their credibility and
pure motive to cooperate with the investigation, though such information is not explicitly
required. See State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978) (stating in dicta that,
where a concerned citizen wishes to remain anonymous, it behooves law enforcement to
provide peripheral information establishing the informant’s status as a concerned citizen).
Concerned citizens are especially trustworthy because their identity is known to the police,
and, if the information provided is ultimately false, the person could face criminal charges
for providing false information to police.1 See Minn. Stat. § 609.505, subd. 1 (2016).
Appellant argues that the concerned citizen ’s information cannot be used to show
probable cause because the affiant did not provide info rmation showing the person’s
veracity, reliability, or basis of knowledge. But appellant’s argument is based on the

1 Appellant conflates concerned citizens and informants throughout his brief. Concerned
citizens and informants are distinct sources of information, and there are distinct legal
standards for evaluating information provided by each source when determining probable
cause.

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standard applied to confidential informants, which is quite different from the one we use
to analyze information provided by a conc erned citizen. A conf idential informant’s
information is not presumed to be reliable. When using information supplied by a
confidential informant to dete rmine whether probable cause supports the issuance of a
search warrant, the issuing judge considers the confidential informant’s veracity and basis
of knowledge when deciding how much weight to give the information. State v. Souto ,
578 N.W.2d 744, 747 (Minn. 1998). A concerned citizen’s information, on the other hand,
is presumed to be reliable and can support a probable-cause determination without showing
their veracity or basis of knowledge. McGrath, 706 N.W.2d at 540.
Here, the warrant affidavit does not include any information about the concerned
citizen. But an affiant is not required to provide additional info rmation to afford a
concerned citizen the presumption of veracity and reliability. Davis, 732 N.W.2d at 182-
83. The affiant stated that the concerned citi zen’s identity is known to him and that they
wished to remain anonymous. We presume th at the concerned citizen is reliable without
further information. McGrath, 706 N.W.2d at 540.
Next, appellant claims that the concerned citizen’s knowledge of appellant’s address
cannot on its own support a finding of probab le cause. Appellant is correct that easily
obtained facts and conditions, like a person’s a ddress, are by themselv es inadequate to
support a finding of probable cause. State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App.
1991). However, the concerned citizen’s know ledge of appellant’s address was not the
sole piece of information the district court used to find probable cause. The district court

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also relied on the concerned citizen’s information that drug activity occurred at the address,
appellant’s criminal history, and information provided by three informants.2
There was no conflicting evid ence to rebut the affiant’ s statements, and appellant
has not alleged that the information contained in the affidavit was knowingly false or made
with a reckless disregard for the truth. See McGrath, 706 N.W.2d at 541 (determining that
an affiant knowingly omitted a would-be concerned citizen’s criminal record from the
warrant affidavit). The district court did not err by relying on the concerned citizen’s
information when determining there was probable cause to search appellant’s apartment.
B. Appellant’s Criminal History
Appellant argues that appellant’s criminal record cannot support the district court’s
probable-cause determination. Caselaw clearly instructs otherwise. An issuing judge may
consider arrest and charge records when determining if probable cause exists, but probable
cause cannot be sustained on arrest records alone. See State v. McCloskey , 453 N.W.2d
700, 702, 704 (Minn. 1990) (holding that an eight-y ear-old DWI arrest, a probation
violation warrant, a warrant for expired pl ates, and a warrant for speeding constituted
“relatively minor trouble with the law [that] was perhaps of some slight probative value”
toward a probable-cause determination). The district court properly considered appellant’s
arrest and charge record as part of its probable-cause determination.

2 The district court did not rely heavily on the information provided by the three informants.

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C. The Dog Sniff
Appellant argues the warrantless dog sn iff outside his apartment door was
unconstitutional and could not be used to establish probable cause. See State v. Edstrom,
901 N.W.2d 455, 464 (M inn. App. 2017) (holding that a dog sniff at an apartment door
inside a secured building was unconstitutional), review granted (Minn. Nov. 14, 2017).
Edstrom was decided after the district court issued the search warrant but before this case
was heard. Appellant argues that this court should apply Edstrom to the present case as it
is currently good law. However, even if we disregard the positive alert from the dog sniff,
there is a substantial basis for the district court to determine there was probable cause.
Accordingly, we need not consider whether Edstrom should apply in this case or whether
the dog sniff itself was unconstitutional.
D. Probable Cause Exists
To determine whether the issuing judge had a substantial basis for finding probable
cause, we consider the tota lity of the circumstances. State v. Holiday, 749 N.W.2d 833,
839 (Minn. App. 2008). We are careful not to review each component of the warrant
affidavit in isolation and note that pieces of information that would not be substantial alone
can combine to provide probable cause. Id. The search warrant affidavit provided a
substantial basis for the judge to determine that probable cau se existed. The concerned
citizen’s information was corroborated by th e affiant’s independent investigation and
information provided by the th ree informants. Appellant’s criminal history provided
another component to assess whether proba ble cause existed to search appellant’s
apartment. Based on the foregoing informati on contained in the wa rrant affidavit, the

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district court had a substantial basis to dete rmine that probable caus e existed to issue the
search warrant for appellant’s apartment.
II. Admission of evidence obtained from appellant’s cell phone was harmless
error.

The United States and Minnesota Constitutio ns guarantee a person’s right to be free
from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Generally, evidence seized in violation of the Constituti on must be suppressed. State v.
Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007). “A constitutional error does not mandate
reversal and a new trial if we determine th at the error was harmless beyond a reasonable
doubt.” State v. Caulfield , 722 N.W.2d 304, 314 (Minn. 2006). Whether an error is
harmless “is not a matter of analyzing whether a jury would have convicted the defendant
without the error, but rather whether the error reasonably could have impacted . . . the jury’s
decision.” Id. (citation and quotations omitted).
Appellant argues police lacked probable cause to arrest him and that all evidence
resulting from his arrest, including data obt ained from his cell phone, should have been
suppressed. At trial, the state presented evidence of appellant’s text messages that showed
appellant discussing the sale of methamphetami ne with another person. The state also
introduced the drugs and drug pipes found in appellant’s bedroom. Appellant lived alone
in the apartment, so the presence of drugs in his living space is very strong evidence of his
possession of them. See, e.g., State v. Lorenz , 368 N.W.2d 284, 287-88 (Minn. 1985)
(holding that cocaine discovered in defendan t’s dresser in his bedroom in apartment he
shared with another was suffi cient to establish defendant’ s constructive possession of

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cocaine). At best, the text messages on appellant’s phone were cumulative of the
overwhelmingly incriminating drug evidence found in appellant’s apartment. The jury did
not need the text message ev idence to conclude appellant possessed the drugs, and the
erroneous admission of the text message evidence could not have reasonably impacted the
jury’s decision. Any error in admitting evidence obtained from appellant’s cell phone and
its data was harmless beyond a reasonable doubt.
Affirmed.