State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-0761

Court of Appeals Chutich, J.

State of Minnesota,

Appellant,

vs. Filed: April 8, 2020
Office of Appellate Courts
Tyler James Dexter,

Respondent.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant Anoka County
Attorney, Anoka, Minnesota, for appellant.

Mark D. Kelly, Mark D. Kelly Criminal Defense LLC, Saint Paul, Minne sota, for
respondent.

Adam E. Petras, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for amicus
curiae Minnesota County Attorneys Association.
________________________

S Y L L A B U S
1. The State’s common law privilege to protect the identity of an informant does
not apply to a request for the disclosure of non-identifying information about the informant.
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2. When a defendant makes a request, the State must disclose non -identifying
information about an informant that satisfies the requirements of M innesota Rule of
Criminal Procedure 9.01.
3. If the State asserts that the requested information about an informant, when
viewed as a whole, will tend to reveal the identity of the informant, the district court must
review the information in camera and fashio n an order that limits the disclosure to
information that does not tend to reveal the identity of the informant.
Affirmed.
O P I N I O N
CHUTICH, Justice.
This case considers when the State must disclose non-identifying information about
a confidential reliable informant’s relationship with police and the informant’s
information-gathering activities. Relying on the observations of a confidential reliable
informant, appellant State of Minnesota obtained a warr ant to search the home of
respondent Tyler James Dexter. During the search, police found firearms and several
pounds of marijuana. The State charged Dexter with drug possession and sale crimes.
Dexter filed discovery and suppression motions, seeking info rmation about the
informant’s relationship with police and means of entry into Dexter’s home . The district
court denied Dexter’s motions. Specifically, the court relied on the State’s common law
privilege to withhold the identity of a n informant and concluded that Dexter was not
entitled to discover the informant’s identity or any other information about the info rmant.
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The court ultimately convicted Dexter of fifth-degree sale of a controlled substance . See
Minn. Stat. § 152.025, subd. 1(1) (2018).
On appeal, t he court of appeals held that the State’s privilege did not apply t o
non-identifying information and that Dexter’s specific request satisfied the requirements
of Minnesota Rule of Criminal Procedure 9.01. Accordingly, the court reversed the denial
of Dexter’s request for non-identifying information and remanded to the district court with
instructions to carefully fashion an order that only discloses non -identifying information.
Because the State’s common law privilege does not protect non -identifying information,
Dexter’s specific request satisfies the requirements of Rule 9.01, and the court of appeals’
remand instructions protect the informant’s identity, we affirm.
FACTS
In February 2017, Officer Jesse Standal filed a search warrant application to search
Dexter’s home and person. We quote the pertinent part of the warrant application in detail:
Your affiant was recently contacted by a Confidential Reliable
Informant, CRI hereinafter, who indicated having knowledge of a party by
the name of TYLER DEXTER who is involved in the distribution of
controlled substances. Specifically, the CRI indicated that TYLER
DEXTER is involved in the distribution of large quantities of marijuana and
is commonly in possession of several pounds of marijuana at a time and also
has several firearms commonly stored near the marijuana. The CRI indicated
having previously observed han dguns and rifles at the address and in the
possession of TYLER DEXTER. . . . [S]everal other adults may also reside
at the address but . . . the CRI has only observed TYLER DEXTER to
distribute marijuana and possess firearms at the address, most commonly
within the garage. This CR I has previously provided your affiant with
information that was found to be accurate and reliable which has resulted in
the recovery of large quantities of controlled substances as well as firearms.

. . . .

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Within the past 72 hours your affiant was contacted by the CRI. The
CRI told your affiant that they (the CRI) had been at TYLER DEXTER’S
home address and had observed several pounds of what the CRI believed to
be marijuana and also observed what the CRI believed to be an as sault rifle
present at the address.

The district court issued a search warrant based on the facts alleged in the
application. Upon searching Dexter’s home, police found several pounds of marijuana,
marijuana wax, narcotics, firearms, and other items. Th e State charged Dexter with
fifth-degree sale of a controlled substance.1 Minn. Stat. § 152.025, subd. 1(1).
Dexter then filed two discovery motions in which he sought to know the actual
identity of the informant, the contours of the relationship between the police officers and
the informant, and the informant’s information-gathering activities. According to Dexter,
the non-identifying information was relevant to whether t he informant was acting as an
agent of the police and if so, whether the informant entered Dexter’s home in violation of
the Fourth Amendment of the United States Constitution. The State asserted its common
law privilege to withhold the identity of an inf ormant. Concluding that Dexter failed to
establish the prima facie showing required to overcome the State’s privilege, the district
court denied Dexter’s requests for disclosure.
Dexter then moved to suppress the evidence obtained during the search of his home,
relying upon the same grounds as in his first two discovery motions. The district court also

1 The State also charged Dexter with fifth -degree possession of a controlled
substance. Minn. Stat. § 152.025, subd. 2(1) (2018). This additional charge does not
impact the issue on appeal.
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denied this motion, finding that the issues that Dexter raised had already been decided by
the court’s first order denying his discovery motions.
The parties then agreed to a stipulated-facts trial under Minnesota Rule of Criminal
Procedure 26.01, subdivision 3. The court found Dexter guilty of fifth -degree sale of a
controlled substance. See Minn. Stat. § 152.025, subd. 1(1).
Dexter appealed, arguing that the district court committed reversible error when it
denied his pretrial requests for disclosure. The court of appeals acknowledged the State’s
common law privilege to withhold the identity of a n informant . State v. Dexter ,
929 N.W.2d 455, 460 (Minn. App. 2019) (citing State v. Rambahal , 751 N.W.2d 84, 90
(Minn. 2008)). Because Dexter failed to establish the prima facie showing required to
overcome the State’s common law privilege, the court of appeals concluded that the district
court properly denied Dexter’s request for disclosure of the identity of the informant. Id.
But regarding Dexter’s request for disclosure of non -identifying information, the court of
appeals concluded that the district court’s reliance on the common law privilege to
withhold the identity of an informant was misplaced because the privilege did not apply to
non-identifying information. Id. at 461.
The court of appeals also concluded that , under the unique facts of this case, the
non-identifying information that Dexter requested “relate[d] to the case” under Minnesota
Rule of Criminal Procedure 9.01. Id. at 460; see also Minn. R. Crim. P. 9.01, subd. 1 (“The
prosecutor must, at the defense’s request . . . allow access . . . to all matters within the
prosecutor’s possession or control that relate to the case, except as provided in Rule 9.01,
subd. 3 . . . .”). The court observed that the warrant application alleged that the informant
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provided the police reliable information in past cases and had witnessed the criminal
conduct while inside D exter’s home, without describing the precise nature of the
informant’s relationship with police or the manner in which the informant entered Dexter’s
home.2 Dexter, 929 N.W.2d at 461.
Accordingly, the court of appeals reversed and remanded to the district court to
carefully “fashion the appropriate, limited order for disclosure.” Id. The court also
instructed the district court “to allow Dexter the opportunity to file a new motion to
suppress, if he chooses to do so, after the state complies with the disclosure order.” Id.
We granted the State’s petition for review.
ANALYSIS
The State makes three main arguments on appeal . First, it argues that the court of
appeals erred when it concluded that the common law privilege to withhold the identity of
an informant does not apply to disclosure of non-identifying information. Second, it claims
that Dexter’s request to disclose non-identifying information was properly denied because
it was based on mere speculation. Third, the State asserts that, even if individual items of
non-identifying information are unprotected by the privilege, requiring disclosure of this
information risks enabling a defendant to piece together the informant’s actual identity,

2 One judge dissented from this part of the opinion on the grounds that Dexter failed
to preserve the question of whether the informant entered Dexter’s home without consent
and that disclosing t he manner in which the informant entered the home would allow
Dexter to identify the informant. Dexter, 929 N.W.2d at 462–66 (Johnson, J., concurring
in part, dissenting in part).
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thereby completely undermining the purpose of the privilege. We consider each argument
in turn.
I.
The applicability of a privilege is a question of law that we review de novo. State
v. Expose , 872 N.W.2d 252, 257 (Minn. 2015). Here, we must determine whether the
State’s common law privilege to withhold the identity of an informant extends to
withholding non-identifying information about the informant.
The State has a common law privilege3 that allows it “to withhold from disclosure
the identity of persons who furnish information ” to law enforcement officers. Roviaro v.
United States, 353 U.S. 53, 59 (1957). The purpose of the privilege is to protect “the public
interest in effective law enforcement.” Id. The privilege recognizes that, by preserving the
anonymity of citizens who report crimes to police, these persons are encouraged to perform
the duty of reporting. Id.
When defendants seek to discover the actual identity of an informant, the privilege
applies, and they must “establish that such disclosure is necessary to complete [an]
evidentiary attack on the supporting affidavit.” State v. Luciow, 240 N.W.2d 833, 839
(Minn. 1976). In those cases, we balance “the defendant’s right to prepare a defense and
the public’s interest in effective law enforcement.” State v. Rambahal, 751 N.W.2d 84, 90
(Minn. 2008).

3 Some decisions refer to this privilege as the “informer’s privilege.” As the United
States Supreme Court clarified in Roviaro v. United States, however, this privilege is best
described as one that is granted to the government. 353 U.S. 53, 59 (1957).
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Unlike our prior decisions on this privilege, however, Dexter seeks information
other than the actual identity of the informant. 4 This request therefore requires us to
consider the scope of the privilege as it relates to non-identifying information.
The scope of the privilege is “limited by its underlying purpose.” Roviaro, 353 U.S.
at 60. That is, when “the disclosure of the contents of a communication will not tend to
reveal the identity of an informer, the contents are not privileged.” Id. (emphasis added).
Because the privilege does not apply to information that does not “tend to reveal” the
identity of an informant, id., we hold that the court of appeals properly concluded that the
State’s common law privilege does not apply to non-identifying information.5
II.
Next, we consider whether the court of appeals erred in concluding that the
non-identifying information that Dexter requests “relate [s] to the case” as required by
Minnesota Rule of Criminal Procedure 9.01. The State argues that Dexter’s request was

4 Dexter argues that the district court erred in denying his motion for disclosure of the
actual identity of the informant. But the district court denied this request , the court of
appeals affirmed that decision, and Dexter did not file a cross-petition for review of this
issue. Accordingly, Dexter has forfeited this argument, and we need not consider it here .
See State v. Hunn, 911 N.W.2d 816, 821 (Minn. 2018).

5 The State asserts that “[t]he appropriate time to disclose informant information, both
identifying and non-identifying, is after a defendant has met his threshold burden” and the
court has offered procedural protections, citing to McCray v. Illinois, 386 U.S. 303 (1967)
and State v. Luciow, 240 N.W.2d 833 (Minn. 1976). But those cases discussed disclosure
of the actual identity of an informant.
Because we conclude that the privilege does not apply to non -identifying
information, it follows that the prima facie showing required for the disclosure of the
identity of an informant , see Luciow, 240 N.W.2d at 839, does not apply to a request for
disclosure of non-identifying information about the informant.
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based on mere speculation and that Dexter failed to “create any record showing a need for
the information.” We disagree.
Rule 9.01 serves as a broad disclosure rule for prosecutors. Upon the request of a
defendant, the rule requires a prosecutor to disclose information that “relate[s] to the case”
and is within the possession and control of the prosecutor. Minn. R. Crim. P. 9.01, subd. 1.
We must therefore consider whether the non -identifying information requested by Dexter
satisfied this requirement of Rule 9.01.
Specifically, Dexter sought the following information:
(1) how long . . . the [informant] has work [ed] for law enforcement
(2) whether or not a written contract to cooperate was signed by the
government and the informant (3) what kind of consid eration was received
by the [informant] (4) whether or not any law enforcement officer
communicated with and encouraged the [informant] to conduct surveillance
of [Dexter] or others (5) the manner in which the [informant] was alleged to
have made observations in the residence of [Dexter].

For the reasons that follow, we conclude that this information “relate[s] to the case” under
Rule 9.01.
The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend. IV.
But the Fourth Amendment applies only to state action; it does not apply to searches by
private persons. United States v. Jacobsen , 466 U.S. 109, 113 (1984). The State may
therefore use evidence obtained through a private search. See Mapp v. Ohio, 367 U.S. 643,
655 (1961).
But if a private person acts as an agent of the State when conducting a search, then
the Fourth Amendment applies. State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990). A
search conducted without a warrant is per se unreasonable and “subject to only a few
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specifically established and well delineated exceptions,” one of which is consent. State v.
Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (citations omitted) (internal quotation marks
omitted). When information obtained through an illegal search serves as pro bable cause
for a search warrant, the evidence gathered in executing the search warrant is inadmissible
under the exclusionary rule. Cf. Segura v. United States, 468 U.S. 796, 815 (1984) (stating
that suppression of evidence is justified if the evidence i s “the product of illegal
government activity”) (citation omitted) (internal quotation marks omitted).
To determine whether a person acted as a government agent, the court must, on a
case-by-case basis, consider “all the facts and circumstances relative to the search.”
Buswell, 460 N.W.2d at 618. “It is only when the government takes some type of initiative
or steps to promote the search, that a private citizen is deemed to be an agent or instrument
of the government.” Id. at 619. This determination is a question of fact for the district
court. State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003).
The warrant application here alleged that the informant had provided the police
reliable information in past cases and that the informant witnessed the criminal conduct
while inside Dexter’s home. Notably, the application did not describe the precise nature
of the informant’s relationship with the police or the manner in which the informant entered
Dexter’s home.
Because the Fourth Amendment applies to a search when a private person act s as
an instrument or agent of the police, Dexter’s request for non-identifying information was
not based on mere speculation. Instead, it was based on a warrant application that alleged
a “past relationship” and “home entry,” but failed to describe the nature of the relationship
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or the form of entry. And, of course, a home is a place where Fourth Amendment rights
are at their zenith. See, e.g., State v. deLottinville , 890 N.W.2d 116, 120 (Minn. 2017).
Under the unique facts of this case, we conclude that the non -identifying information that
Dexter requests “relate[s] to the case”6 under Rule 9.01 because it is necessary to resolve
a material issue: whether the informant acted as a police agent and, if so, whether the
informant entered Dexter’s home in violation of the Fourth Amendment.
III.
Finally, we consider the State’s concerns about the scope of the court of appeals’
remand instructions. The State warns that the seemingly straight forward remand
instructions will create “a slippery slope with no end in sight.” According to t he State, if
it must disclose various items of non-identifying information, a defendant may be able to
piece together the informant’s identity, creating a “threatening and dangerous” scenario for
confidential informants. It also cautions that information that might be non-identifying in
one case might be identifying in another. Because the remand instructions fail to explain
how, and by whom, the line between identifying and non-identifying information is drawn,
the State contends that the instructions are flawed.

6 We recognize that not all cases will concern information about the informant that
“relate[s] to the case.” Our conclusion is limited to the facts present ed here: a warrant
application that alleged that the informant provided the police reliable information in past
cases and had witnessed the criminal conduct while inside the defendant’s home, without
describing the precise nature of the informant’s relation ship with police or the manner in
which the informant entered the defendant’s home.
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The State’s legitimate concerns are alleviated by available procedural protections
that can prevent disclosure of an informant’s actual identity. 7 In cases when the State
contends that the identity of an informant may become apparent through disclosure of
certain non-identifying information, a district court should conduct an in camera review of
the information and fashion a limited order for disclosure that protects the identity of the
informant. This procedure is currently used to determine whether the actual identity of an
informant must be disclosed. See, e.g., State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982).
We believe that this in camera review would be effective in enabling the court to craft an
order allowing disclosure of non-identifying information in a way that protects an
informant’s identity.
On remand, if the State asserts that the i ndividual pieces of non-identifying
information requested by Dexter, when viewed as a whole, will tend to reveal the identity
of the informant, the district court should conduct an in camera review of the information
to determine whether and how it should be disclosed to Dexter. But if the State does not
so contend, the district court should order disclosure by whatever process is reasonable
under the specific facts of the case. This process might include a contested omnibus
hearing at which the police officer testifies about the nature of any agency relationship
between the informant and police . Given the procedural protections that exist to prevent

7 We also note that certain disclosure concerns may be entirely avoided if the police
include in the warrant application information about whether the police had knowledge of
the informant’s actions or whether the defendant consented to the informant’s entry into
the home. Moreover, police investigative work corroborating the informant’s tip before
officers seek a warrant may further diminish the need for disclosure.
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disclosures that may tend to reveal an informant’s identity, we conclude that the court of
appeals’ remand instructions are adequate and appropriate.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.