State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0711

State of Minnesota,
Respondent,

vs.

Steven Wayne Haney,
Appellant.

Filed May 13, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-22955

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Nicole Cornale, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ha lbrooks, Judge;
and Larkin, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Steven Wayne Haney appeals his convictions on two cou nts of first-
degree controlled-substance crime. He challenges the district c ourt’s denial of his motion
to suppress evidence that was obtained during the execution of two search warrants,

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arguing that warrants were invalid because they were based on a tip from a confidential
reliable informant (CRI) who ha d performed a prior unconstituti onal search. Haney also
challenges the district court’s denial of his motion to compel discovery of information
regarding the CRI, and the cour t’s limitation of questioning re garding the CRI at the
suppression hearing, asserting a due-process right to the infor mation. Because the district
court did not clearly err in finding that the CRI was not acting as an agent of the government
when the CRI saw the drug activity in Haney’s house that was the substance of the tip, and
because the district court did no t abuse its discretion in limi ting Haney’s access to
information regarding the CRI, we affirm.
FACTS
In July 2016, police received information from a CRI that Haney w a s s e l l i n g
methamphetamine out of his house. The police sought search warr ants based on that
information: one for Haney’s house, the other for Haney himself. The affidavits supporting
the warrant applications were identical and contained the following two paragraphs about
the informant’s tip:
Your affiant has been . . . conducting an investigation
involving the address of 2735 Marshall St NE and [Haney] for
the distribution of controlled substances to wit,
methamphetamine. This investigation began after your affiant
and assisting investigators received information from a
confidential reliable informant (CRI hereinafter) who stated
that [Haney] was possessing and distributing
methamphetamine from the aforementioned address which is a
single family dwelling located in northeast Minneapolis.
. . . .

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Within the past 24hrs, the CRI that is assisting your
affiant and Officer Collins with t his investigation was at the
residence of 2735 Marshall St NE where the CRI observed a
large quantity of crystal methamphetamine at the location. The
CRI indicated that there were several parties who were coming
and going from the address, purchasing methamphetamine
from [Haney]. The CRI indicated that while at the residence
they observed several narcotic transactions between [Haney]
and the buyers.
The affidavits also described the police’s confirmation that Haney lived at the address and
Haney’s previous convictions for controlled-substance crimes.
Search warrants were issued and executed. Police searched Haney outside of his
house, finding methamphetamine and cash. Based on this evidence, and certain statements
that he made in an interview with police after his arrest, Hane y was charged with two
counts of first-degree controlled-substance crime.
Haney moved to suppress the evidence obtained by the search and interview. He
contended that, when the CRI observed the drug activity, the CR I was acting as an agent
of the state and thus had conducted a warrantless search in vio lation of Haney’s Fourth
Amendment rights. He argued that the search warrants were not p roperly issued and the
evidence derived from the warranted searches—that is, both the physical evidence and his
statements to the police—was inadmissible. Haney also moved to compel disclosure of the
CRI’s identity and details of the CRI’s relationship with polic e in order to prove his
contention that the CRI had engag ed in an illegal search while acting as an agent of the
government. The district court denied Haney’s motion to compel discovery but granted his
request for a hearing on the claimed warrantless entry of Haney ’s house by the CRI. The

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court stated in its order that it deemed “it appropriate for there to be a hearing on the nature
and facts surrounding the CRI’s entry into [Haney’s] residence.”
At the hearing, held before a different district court judge, H aney was permitted to
question two police officers about the basis for the warrant. T he district court interpreted
the first judge’s order as limiting the scope of the hearing to “the day in question, the day
that the CRI entered the home, [and] whether the CRI was workin g off potential charges
or earning money to enter and pr ovide information.” The court r uled that further, more
specific questions could be asked depending on whether the init ial inquiry suggested that
the CRI’s relationship with police and the CRI’s identity could be relevant.
The officers testified that the y had not told the CRI to search Haney’s house or to
investigate Haney, that they were not aware that the CRI planned to investigate Haney, that
they did not know how the CRI observed what the CRI reported, t hat the CRI was likely
to be paid if the information was “reliable and relevant and . . . [led] to recovery of
evidence,” and that the CRI was in fact compensated in this cas e. Additionally, while the
police had “known about the address,” the officers’ testimony indicated that there had not
been an investigation into Han ey’s address until after the CRI provided the information.
While Haney was not permitted to inquire into the length and na ture of the prior
relationship between the CRI and the police during the first day of the hearing, the district
court permitted some questions on the topic in the second day. Through his questioning of
the officers, Haney learned that the CRI had previously been pa id based on entries of
residences and had worked with o ther officers. He also learned that the officers did not

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know how many times the CRI had provided information. Haney did not ask whether the
officers knew details about the CRI’s past entries of residences.
Based on the testimony at the hearing, the district court found that the CRI was not
acting as an agent of the state because the evidence did not show that the officers knew of
or acquiesced in the CRI’s conduct with respect to Haney’s resi dence and did not show
t h a t t h e p o l i c e w e r e “ i n a s t a t e o f ‘ o n g o i n g a c q u i e s c e n c e . ’ ” B ecause the district court
concluded that information from the CRI did not need to be excluded from the affidavit, it
ruled that the warrant was supported by probable cause and that the fruits of the warrant
were therefore admissible. Haney’s motion to suppress was denied.
Following a court trial, Haney was convicted on both counts, an d this appeal
follows.
D E C I S I O N
I. The district court did not clearly err in finding that the C R I w a s a c t i n g i n
private capacity.
Haney argues that the district court clearly erred in finding t hat the CRI acted as a
private citizen when obtaining the information that he or she then reported to the police.
The Fourth Amendment prohibits unreasonable searches. U.S. Cons t. amend. IV;
see also Minn. Const. art. 1, § 10 (prohibiting unreasonable searches and seizures). But the
Fourth Amendment restricts only state action; it does not prohi bit unreasonable searches
by private individuals. U.S. v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984).
The exclusionary rule therefore does not prohibit the state fro m using evidence obtained
through a private search. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961)

6
(applying the exclusionary rule, which makes evidence obtained in violation of the Fourth
Amendment inadmissible, to the states). However, if a seemingly private person performs
a search while acting as an agent of the government, the Fourth Amendment and
exclusionary rule then apply. State v. Buswell , 460 N.W.2d 614, 618 (Minn. 1990). If
probable cause for a search warrant depends on information obta ined through an illegal
search, the evidence obtained thr ough the search warrant is ina dmissible unless an
exception to the exclusionary rule applies. See Murray v. United States, 487 U.S. 533, 542,
108 S. Ct. 2529, 2536 (1988) (stating that evidence based on a warrant would not be
admissible if law enforcement sought the warrant because of a p rior illegal entry or “if
information obtained during that entry was presented to the Mag istrate and affected his
decision to issue the warrant”); State v. Lieberg , 553 N.W.2d 51, 55 (Minn. App. 1996)
(“The exclusionary rule generally requires the suppression of evidence acquired as a direct
or indirect result of an unlawful search.”).
Whether a private person acted as an agent of the government is a question of fact
for the district court. State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003). The question
is to be resolved “on a case-by- c a s e b a s i s a f t e r c o n s i d e r a t i o n of all the facts and
circumstances relative to the search.” Buswell, 460 N.W.2d at 618. But two factors are
critical. The first is “whether the government knew of and acqu iesced in the search.” Id.
The second is “whether the sear ch was conducted to assist law e nforcement efforts or to
further the private party’s own ends.” Id. Both factors must be satisfied for a search by a
private person to be government search. If the government did not know of or acquiesce in
a search, it will be considered a private search, regardless of the person’s motive. See id. at

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620 (holding that a search was p rivate because there was “no si gnificant government
involvement in [the] searches,” without analyzing the second fa ctor). A district court’s
finding as to whether a search was private is reviewed for clear error. Id. at 618.
Here, the district court found that law enforcement did not sen d the CRI to search
Haney’s house, was not aware that the CRI was going to be in Haney’s residence, and had
no prior financial agreement with the CRI with respect to Haney ’s residence. Based on
these facts, the district court found that “law enforcement did not know of or acquiesce to
the entry of the CRI into [Haney’s] residence.”
Haney argues that the district court clearly erred in not finding that law enforcement
acquiesced in the search, notwithstanding law enforcement’s lack of advance knowledge,
because the CRI had “an active relationship” with law enforceme nt, had informed for the
police in the past, and had been financially rewarded for that information. He contends that,
by paying the CRI in the past and by not telling the CRI not to search houses, law
enforcement effectively acquiesced in the CRI’s search of Haney’s house. He also contends
that the district court clearly erred by not recognizing that fact.
Haney relies on U.S. v. Walther, 652 F.2d 788, 792 (9th Cir. 1981). The Minnesota
Supreme Court drew from Walther the two critical criteria that help inform whether a
search by a private person is a government search. See Buswell, 460 N.W.2d at 618 (finding
the Walther criteria “helpful” in that they direct the trial court to focus on the significance
and impact of the government involvement in the search). In Walther, the district court
found that an airline employee was a government agent when open ing a package called a
“Speed Pak” because the employee had previously been a Drug Enf orcement Agency

8
(DEA) informant, had received rewards for other searches in the past, had a known pattern
of opening Speed Paks without being discouraged from doing so, and reasonably expected
a reward if the search turned up evidence. Walther, 652 F.2d at 792-93. The Ninth Circuit
affirmed both the district court’s finding that the DEA acquies ced in and encouraged the
informant to search Speed Paks and its conclusion that the search at issue was therefore not
a private search. Id. at 793.
Assuming, without deciding, that Walther’s theory of constructive knowledge and
acquiescence applies,1 Walther does not compel the finding demanded by Haney on this
record. In Walther, the Ninth Circuit upheld a district court’s finding of acquiescence based
on the government’s knowledge of a “particular pattern of searc h activity dealing with a
specific category of cargo” and its implicit encouragement of t hat activity. Walther, 652
F.2d at 793. The court “emphasize[d] the narrowness” of its hol ding, id., and specifically
distinguished the outcome in Walther from cases where an informant had merely been paid
for providing information in the past, without a specific pattern of searches, id. at 793 n.2.
Here, while there was evidence that the CRI had, in the past, provided information related

1 This court is not bound by the decisions of any federal court other than the United States
Supreme Court, even on questions of federal constitutional inte rpretation. Citizens for a
Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 20 (Minn. App. 2003)
(“We are not, however, bound by any other federal courts’ opini on . . . .”); Northpointe
Plaza v. City of Rochester, 457 N.W.2d 398, 403 (Minn. App. 1990) (holding that this court
was not bound by a federal district court’s interpretation of the United States Constitution),
aff’d, 465 N.W.2d 686 (Minn. 1991). Walther therefore does not bind this court—Buswell
and Jorgensen do. And neither of those cases describes the sort of constructive knowledge
and acquiescence that was determinative in Walther. See generally Jorgensen, 660 N.W.2d
127; Buswell, 460 N.W.2d 614.

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to “entries of residences,” tha t single line of testimony did n ot clearly establish that the
CRI’s conduct was part of a specific pattern. Thus, the district court did not clearly err by
finding that the state did not know of or acquiesce in this sea rch. Because the first critical
factor was not found to exist, the district court did not clear ly err in finding that the CRI
was a private actor. The district court therefore did not err b y denying appellant’s
suppression motion.
II. The district court did not a buse its discretion by limiting the scope of Haney’s
inquiry into the CRI’s identity and relationship to law enforcement.
Haney argues that the district c ourt abused its discretion by l imiting his discovery
of information that may have demonstrated the government’s acqu iescence in the CRI’s
search. Haney contends that he should have been permitted to learn the CRI’s identity and
should have been allowed to learn more about the CRI’s relation ship with police. He
challenges both the denial of his motion to compel discovery an d the limits placed on his
questioning of the officers at the hearing. Both issues are rev iewed under an abuse-of-
discretion standard. State v. Underdahl , 767 N.W.2d 677, 684 (Minn. 2009) (“A district
court judge has wide discretion to issue discovery orders, and normally an order will not
be overturned without clear abuse of that discretion.” (quotati on omitted)); State v.
Rambahal, 751 N.W.2d 84, 90 (Minn. 2008) (“[Appellate courts] review a district court
order regarding disclosure of a confidential informant’s identi ty for an abuse of
discretion.”).
An “established evidentiary privilege” protects against the disclosure of the identity
of confidential informants. State v. Luciow , 240 N.W.2d 833, 839 (Minn. 1976). This

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privilege protects “the public i nterest in effective law enforc ement” by encouraging
citizens to provide information to police with some reassurance that they will not be
identified to the perpetrators of the reported crime. Roviaro v. United States, 353 U.S. 53,
59, 77 S. Ct. 623, 627 (1957). The privilege extends not only to the identity of the informant
but also to information that w ill tend to reveal the identity o f the informant. Id. at 60, 77
S. Ct. at 627.
The privilege, however, must give way if “there is a reasonable probability that the
informant’s testimony [is] necessary to a fair trial.” Syrovatka v. State, 278 N.W.2d 558,
562 (Minn. 1979). Thus, where a defendant is challenging the validity of a search warrant,
“he is entitled to some form of disclosure of an informant’s identity if he can establish that
such disclosure is necessary to complete his evidentiary attack on the supporting affidavit.”
Luciow, 240 N.W.2d at 839. To establis h that disclosure is necessary, the defendant must
make a prima facie factual showin g of need, more than mere spec ulation. Id. (requiring a
prima facie showing); see State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982) (holding that
disclosure of the informant’s id entity was not necessary where the defendant’s theory of
why disclosure was necessary dep ended on “mere speculation”); Syrovatka, 278 N.W.2d
at 562 (“[C]ourts should not require in camera disclosure solely on the basis of speculation
by the defendant that the informant’s testimony might be helpful.”).
Haney sought disclosure of the identity of the CRI and information that might tend
to reveal the identity of the CR I (for example, a signed contra ct, if one existed). Haney
could have been entitle d to identifying inf ormation if he had m ade a prima facie factual
showing that the evidence was necessary to ensure a fair trial. See Luciow, 240 N.W.2d at

11
839. Haney does not argue that he made such a showing, instead contending that he had a
due-process right to the information because of the possibility that it might tend to establish
that the CRI was an agent of the government. But because Haney sought identifying
information based on what he asserted it might show—rather than what a prima facie
showing established that it was likely to show—his argument dep ended on “mere
speculation.” See Ford, 322 N.W.2d at 614 (requiring more than “mere speculation” to
compel disclosure of identifying information). Thus, Haney did not make the requisite
showing and was not entitled to o vercome the informant privileg e. The district court did
not abuse its discretion by denying him access to identifying information.
Haney also argues that he was improperly barred from acquiring information that
would not tend to reveal the identity of the informant and was therefore not privileged. At
the hearing, the district court initially allowed only a narrow inquiry, making further
inquiry contingent on the initial answers. But, ultimately, Haney was allowed to ask about
the substance of the agreement under which the CRI was working, learning that the CRI
was working for financial compensation and was not working on a deal to avoid
prosecution. The testifying police officer explained the terms of payment when a CRI is
working for monetary reward. And, a f t e r l e a r n i n g t h a t t h e C R I ’ s past information had
involved “entries of residences”—the single line of testimony that most strongly supported
his theory—Haney did not further attempt to clarify whether the re was a pattern. Haney
has not identified nonprivileged information that he was not al lowed to ask about at the
hearing. Thus, if Haney failed to discover nonprivileged information that could have shown

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a violation of his Fourth Amendme nt rights, it was because Hane y failed to ask about it
and not because the court ruled it to be outside the scope of the hearing.
In sum, Haney did not make the necessary showing to overcome th e state’s
informant privilege and he was not prevented from discovering nonprivileged information.
He therefore has not shown that the district court abused its d iscretion by denying his
motion to compel discovery or by limiting his inquiry at the hearing.
Affirmed.