Barry McReynolds, 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This opinion will be unpublished and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
A17-1214

Barry McReynolds,
Appellant,

vs.

West St. Paul Police Department,
Respondent.

Filed May 21, 2018
Affirmed
Florey, Judge

Dakota County District Court
File No. 19WS-CV-17-571

Barry McReynolds, St. Paul, Minnesota (pro se appellant)

Bridget McCauley Nason, To netta T. Dove, LeVander, Gillen & Miller, P.A., South
St. Paul, Minnesota (for respondent)

Considered and decided by Florey, Pres iding Judge; Larkin, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges the denial of his petition under Minn. Stat. § 626.04 (2016) for
the return of property seized following his arrest. He asserts that the property was obtained
via an unlawful search and seizure. We affirm.

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FACTS
On April 29, 2017, law enforcement received a report of an alleged sexual assault,
and appellant Barry McReynolds was identified as a suspect. Subsequently, appellant was
arrested, and his cellphone was seized. After the arrest, police obtained a search warrant
and collected appellant’s DNA via buccal swab. Police later obtained a search warrant to
search the cellphone.
Appellant petitioned the distri ct court for the return of his cellphone and DNA
pursuant to Minn. Stat. § 626.04, which provides a statutory means for obtaining the return
of seized property. On May 19, 2017, the parties appeared for a hearing on appellant’s
petition. Respondent West St. Paul Police De partment called a designee of the custodian
of appellant’s property and requested an ex parte hearing to inform the district court of the
status of the investigations related to appellant’s property. An ex parte hearing was held.
The district court received testimony and in formation indicating that appellant is a
suspect in a sexual-assault case and a seco nd unrelated case. Search warrants were
obtained to take appellant’s DNA and search his cellphone fo r evidence related to those
cases. The DNA sample was sent to the Bureau of Criminal Apprehension, along with a
sexual-assault-examination kit, which had been completed on the alleged victim. Data was
extracted from the cellphone. Charges had not yet been filed. Copies of the search warrants
were received by the district court and placed under seal.
On May 24, 2017, the distri ct court denied appellant’s petition. The court found
that the property was being held in good faith as potential evidence. The court further
ordered that appellant pay $322 in costs. This appeal followed.
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D E C I S I O N
Minnesota Statutes section 626.04(a) states that any property seized with or without
a warrant “shall be safely kept by direction of the court as long as necessary for the purpose
of being produced as evidence on any trial,” but “[i]f the owner of the property makes a
written request to the seizing o fficer’s agency for return of the property, and the property
has not been returned within 48 hours of the request,” excluding weekends and certain
holidays, “the person whose property has been seized may file a petition for the return of
the property.”
At an informal hearing, the district cour t must “allow if requested, or on its own
motion may require, the custodian or the custodian’s designee to summarize the status and
progress of an ongoing investigation that le d to the seizure,” and “[a]ny such summary
shall be done ex parte and only the custodian, the custodian’s designee, and their attorneys
may be present with the court and court staff.” Minn. Stat. § 626.04(a). After the hearing,
the district court shall not order the return of the property if “(1) the property is being held
in good faith as potential evidence in any ma tter, charged or uncharge d; (2) the property
may be subject to forfeiture proceedings; (3) the property is contraband or may contain
contraband; or (4) the property is subject to other lawful retention.” Id.
We generally review a district court’s findings of fact for clear error and conclusions
of law de novo. See Rasmussen v. Tw o Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn.
2013). Statutory interpretation is a question of law that is reviewed de novo. Homart Dev.
Co. v. County of Hennepin , 538 N.W.2d 907, 911 (Minn. 1 995). Here, the district court
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found that the property was be ing held in good faith as pot ential evidence. The record
supports the district court’s finding.
Appellant asserts that officers did not have probable cause to seize his cellphone or
search his vehicle. The dist rict court did not address the lawfulness of the search and
seizure of appellant’s property. We conclude that the distri ct court properly disregarded
appellant’s argument.1
Section 626.04 primarily concerns whether property is being legitimately retained;
it does not expressly permit a challenge to the constitutionality of a search and seizure. “A
statute does not give rise to a civil cause of action unless the language of the statute is
explicit or it can be determined by clear implication.” Becker v. Mayo Found., 737 N.W.2d
200, 207 (Minn. 2007); see also Bruegger v. Faribault Cty. Sheriff’s Dep’t, 497 N.W.2d
260, 262 (Minn.1993) (concluding that principles of judicial restraint preclude judicial
creation of additional causes of action outside those evident in a statute’s express or implied
terms). Another statute, Minn. Stat. § 626.21 (2016), permits a person harmed by an
unlawful search and seizure to move for a return of the property based on the
unconstitutionality of the underl ying search and seizure. Because Minn. Stat. § 626.04
does not permit a challenge to the constitutionality of a search and seizure, the district court
did not err by disregarding that issue.2

1 Appellant brought this action using a form petition, which specifically listed section
626.04 as the basis for the action. See Minn. Stat. § 626.04 (“The court administrator shall
provide a form for use as a pe tition under this section.”). Th e form gave no notice of a
constitutional claim.
2 As for the district court’s award of costs, Minnesota Statutes section 626.04(b) states that
if a petition seeking the return of seized property is denied, the district court “may award
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Moreover, for purposes of this appeal, the record surrounding appellant’s arrest and
the search of his vehicle is too limited for any meaningful review. “When an appellant acts
as attorney pro se, appellate courts are dispos ed to disregard defects in the brief, but that
does not relieve appellants of the necessity of providing an adequate record and preserving
it in a way that will permit review.” Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361,
363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). For this additional reason,
we affirm the district court’s decision.
Lastly, appellant argues that his property should be returned because he has never
been charged with a crime. Section 626.04(a)(1) permits the retention of potential evidence
held in good faith, rega rdless of whether criminal charges have been filed. We therefore
conclude that appellant’s argument is unavailing.
Affirmed.

reasonable costs and attorney fees.” See Minn. R. Civ. P. 54.04(a) (“Costs and
disbursements shall be allowed as provided by law.”). We generally review a district
court’s decision to award costs for an abuse of discretion. Dukowitz v. Hannon Sec. Servs.,
841 N.W.2d 147, 155 (Minn. 2014). The record indicates that respondent expended $322
in filing fees for the filing of a certificate of representation. The award of $322 in costs
was both permitted and reasonable.