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This opinion will be unpublished and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
A18-1794

State of Minnesota,
Respondent,

vs.

David Barrientoz,
Appellant.

Filed September 30, 2019
Affirmed
Smith, Tracy M., Judge
Concurring specially, Florey, Judge

Kandiyohi County District Court
File No. 34-CR-17-651

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Pres iding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant David Barrientoz appeals from his convictions for first-degree possession
of a controlled substance and driving after su spension. He argues that the district court

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erred (1) by denying his suppression motion, which argued that a warrant allowing police
to search his vehicle for a second time, after an initial consented-to search failed to uncover
any contraband, was not supported by probable cause; and (2) by sentencing him for both
offenses. We affirm.
FACTS
In May 2017, a confidential informant (CI) told police that the CI had been regularly
purchasing a significant amount of methampheta mine from Barrientoz. The CI said that
Barrientoz got his methamphetamine from a farm near St. Cloud, that Barrientoz traveled
there once a day, and that he acquired one po und of methamphetamine at a time. The CI
also described Barrientoz’s vehicles and ga ve the police phone numbers for Barrientoz’s
two cell phones. Police obtained GPS-tracking warrants and began surveilling Barrientoz.
One afternoon in July 2017, police dete rmined from “ping information” from
Barrientoz’s cell phone that he was heading toward St. Cloud, and they began visual
surveillance. While Barrientoz was driving back from St. Cl oud, Deputy Swanson, an
officer who recognized Barrientoz and knew that his license was suspended, conducted a
traffic stop after seeing Barrientoz cross the fog line. After admitting that he had used
methamphetamine earlier that day but denying that there was any methamphetamine in his
car, Barrientoz gave Swanson permission to search the car. Swanson allowed a drug-
detection dog to perform a sniff, and the dog, sniffing the exterior of the car, alerted at the
front passenger door. Swanson then let the dog in to the car, where the dog alerted at the
front passenger seat. Swanson, with additiona l police assistance, co nducted a 20-minute
search of the car but did not find any contraband.

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Police seized the vehicle, towed it to a local law enforcement center, and applied for
a warrant to search the vehicle. The warran t application described the investigation,
beginning with the information from the CI a nd the cell-phone warrants and ending with
the traffic stop. The application noted that the dog had alerted twice and that Barrientoz’s
car had been fruitlessly searched; it also stated that a pen regi ster showed that Barrientoz
had sent or received 18 phone calls and text messages dur ing the stop. The application
sought permission “to conduct a more detail ed search” because th e affiant believed the
vehicle contained “illegal drugs currently hi dden where a roadside search may not find
them.” The district court issued the warrant. In a search based on the warrant, three plastic
bags, containing what lab tests later revealed to be at least 55 grams of methamphetamine,
were found in the passenger headrest of the car.
Barrientoz was charged with one count of first-degree possession of a controlled
substance and one count of driving after suspension. He moved to have all evidence
resulting from the stop suppressed, challenging four stages of the investigation: first, the
warrant for the cell phone tracking data; second , the stop itself; third, the dog sniff; and
fourth, the search warrant for the car. Follo wing a hearing at which the officer who
conducted the stop and the officer who drafted the warrant applications testified, the district
court denied Barrientoz’s suppression motion.
Pursuant to Minn. R. Crim . P. 26.01, subd. 4, Barri entoz stipulated to the
prosecution’s case to obtain appellate review of the suppression order, and the district court
found him guilty on both counts. The district court convicted Barrientoz and sentenced him

4
to 65 months’ imprisonment for possession of methamphetamine and to a concurrent 90-
day jail sentence for driving after suspension.
Barrientoz appeals.
D E C I S I O N
I. The district court did not err by de nying Barrientoz’s suppression motion.

On appeal, Barrientoz challenges only one aspect of the district court’s denial of his
suppression motion: he argues that the warran t for a second search of his car was not
supported by probable cause because there was “no new information in the warrant
application to show that drugs would be found in the second search.”
The United States and Minnesota Constitutions provide that no warrant shall issue
without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
“When reviewing a pretrial order on a motion to suppress, [appellate courts] review the
district court’s factual findings” for clear error and “review the district court’s legal
determinations, including a determination of probable cause, de novo.” State v. Milton, 821
N.W.2d 789, 798 (Minn. 2012). But when appella te courts review the decision to issue a
search warrant, the “only consideration is whether the issuing judge ‘had a substantial basis
for concluding that probable cause existed.’” State v. Fawcett, 884 N.W.2d 380, 384 (Minn.
2016) (quoting State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001)).
The Supreme Court has declined to precisely define probable cause, stating that it
is “not possible” to do so and describing probable cause as a “commonsense, nontechnical
conception[].” Ornelas v. United States , 517 U.S. 690, 695-96, 116 S. Ct. 1657, 1661
(1996). But a general standard exists: “A warrant is supported by probable cause if, on the

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totality of the circumstances, there is a fair probability that contraba nd or evidence of a
crime will be found in a particular place.” State v. Holland, 865 N.W.2d 666, 673 (Minn.
2015) (quotation omitted). In evaluating this probability, a court may “consider the type of
crime, the nature of the items sought, th e extent of the susp ect’s opportunity for
concealment, and the normal inferences as to where the suspect would keep the items.” Id.
(quotation omitted). While revi ew of the issuing judge’s decision “is limited to the
information presented in the warrant application and supporting affidavit,” Fawcett, 884
N.W.2d at 384-85, the “judge is entitled to draw common-sense and reasonable inferences
from the facts and circumstances set forth in an affidavit,” State v. Brennan, 674 N.W.2d
200, 204 (Minn. App. 2004) (quotation omitted), review denied (Minn. Apr. 20, 2004).
Barrientoz relies on two cases, State v. Fort and State v. Zanter, to argue that the
police were required to provide the judge who issued the warrant with “new” information—
that is, information beyond wh at they knew before conductin g the consented-to roadside
search—in order to esta blish probable cause. See State v. Fort , 768 N.W.2d 335, 342-43
(Minn. 2009) (holding that a warrant was supported by probable cause when the application
stated that police had new equipment that could allow them to find evidence, namely traces
of blood, that was not revealed by a previous search); State v. Zanter , 535 N.W.2d 624,
633-34 (Minn. 1995) (holding that a third wa rrant for the search of a home was not
supported by probable cause to the extent that the application failed to provide new
information suggesting that police would now find what was not found during the

6
execution of the previous two warrants). The state agrees that these cases provide the
proper framework within which to analyze the warrant in this case.1
“Once the police have engaged in an exhaus tive search of a particular place, they
cannot expect to re-search that area at a later date without providing the issuing judge with
new information sufficient to indicate that items sought, but not found, during prior
searches will now be found.” Zanter, 535 N.W.2d at 633; see also Fort, 768 N.W.2d at 342
(explaining that Zanter holds that “a warrant to search the same location for new evidence
is valid so long as there is new probable caus e”). The rule against consecutive searches is
an application of the principle that proba ble cause is a “commonsense, nontechnical”
determination of whether “there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Ornelas, 517 U.S. at 695-96, 116 S. Ct. at 1661;
Holland, 865 N.W.2d at 673 (quotation omitted). Once police have exhaustively searched
a place, there is not a fair probability that the object of their search will be found there—if
it was there, the police should have found it.
Consistent with this reasoning, to sear ch the place again, police must give the
issuing magistrate sufficient reason to believe that, despite the previous search, the object
of the search is there. One su ch reason is that the first search was not thorough enough to

1 We note that, in both Fort and Zanter, the search-warrant application at issue followed
an earlier warranted search, see Fort, 768 N.W.2d at 342; Zanter, 535 N.W.2d at 632-34,
whereas, here, it followed a consented-to sear ch. Nevertheless, those cases and this case
all involve a search followed by a warrant app lication for a search of the same location.
Given that factual similarity and, as we further describe in this opinion, the reasoning
underlying the supreme court’s decisions, we conclude that the analysis in Fort and Zanter
applies here.

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dispel probable cause. See Fort, 768 N.W.2d at 342-43 (holdi ng that subsequent search
was supported by probable cause because ev idence-gathering equipment was unavailable
during prior search). A second reason is that, even if the search was thorough, there is new
information, not known to the police at the time of the first search, reestablishing probable
cause. See Zanter , 535 N.W.2d at 634 (concluding that subsequent search was not
supported by probable cause when warrant a pplication did not contain sufficient new
information). Thus, police can obtain a warrant to conduct a second or subsequent search
of a place if they demonstrate to the issuing judge’s satisfac tion either (a) that the first
search was not “exhaustive” or (b) that new evidence establishes probable cause to believe
that police can now find what they were looking for. Id. at 633.
Here, the key issue is whether th e roadside search was exhaustive. 2 Barrientoz
makes two arguments for why it was exhaustive.
First, he argues that the warrant application does not contain information about the
limits of a roadside search. He contends that it was not enough for the warrant application
to state a belief that “Barrientoz’s vehicle contains illegal drugs currently hidden where a
roadside search may not find them.” Rather, he argues, the warrant should have explained
why a roadside search might not have been able to reveal the hiding place of the suspected
drugs.

2 The only new evidence in the application was the fact that Barrientoz had sent or received
18 text messages and phone calls during the stop—everything else was known to the
officers when they conducted the roadside search. Without more, that evidence does not
establish new probable cause.

8
It is true that appellate courts’ “consider ation [of probable cause ] is limited to the
information presented in the affidavit, rather than to the information actually possessed by
the police.” State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). But an issuing judge may
draw commonsense inferences from the warrant application. Brennan, 674 N.W.2d at 204.
And the issuing judge may “consider the type of crime, the nature of the items sought, the
extent of the suspect’s opportunity for concealment, and the normal inferences as to where
the suspect would keep the items.” Holland, 865 N.W.2d at 673 (quotation omitted).
Here, a number of facts would have allo wed the issuing judg e to infer from the
warrant application that the roadside search was not exhaustive. The application noted that
the stop was initiated on a highway at 5:30 in th e late afternoon. It stated that the drug-
sniffing dog alerted twice, indicating the presence of illegal drugs, and that the alerts were
“strong.” It sought authorization for “a more de tailed search of the vehicle” and stated a
belief that illegal drugs may have been “hid den where a roadside search [would] not find
them.” Further, the warrant gave an in-depth description of the facts suggesting that
Barrientoz was frequently transporting significant amounts of methamphetamine on public
highways.
From those facts, the judge could reasonably infer that the roadside search was not
exhaustive. It is reasonable to infer that a complete search of a car—which may permissibly
include any place the searched -for item could be hidden, United States v. Ross, 456 U.S.
798, 825, 102 S. Ct. 2157, 2173 (1982)—along the side of a highway, during a time of day
in which high traffic is to be expected, is unwise or even impossible. The issuing judge
could also have inferred that a person w ho was regularly transporting large amounts of

9
methamphetamine on public highways likely ha d both a strong motive and a significant
opportunity to thoroughly con ceal the drugs, making it even mo re likely that they would
be hidden in such a way as to defeat a roadside search. In sum, the fact that the first search
was a roadside search that failed to turn up any contraband, despite two strong alerts from
a drug-sniffing dog, meant that there continued to be a “fair probability ” that there were
drugs in the car that could be discovered by another search. See Holland, 865 N.W.2d at
673.
Second, Barrientoz argues that the officers did in fact conduct an exhaustive search
because squad video shows that the search lasted for 20 mi nutes and included officers
looking in the engine compartment and under the car. But our evaluation of probable cause
is limited to the four corner s of the warrant application. Souto, 578 N.W.2d at 747. Thus,
we cannot consider the squad video.3
In sum, the issuing magistrate could re asonably infer from the warrant application
that there continued to be probable cause that police would find methamphetamine in
Barrientoz’s car. The district court did not err in denying appellant’s suppression motion.

3 Barrientoz did not argue to the district court, and does not argue here, that the warrant’s
lack of a description of the search constituted a material om ission. We therefore do not
address whether excluding that informatio n could have been a material omission. See
Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978) (holding that a
court may declare a warrant void if it is ba sed on a reckless or deliberate material
misrepresentation); State v. Andersen, 784 N.W.2d 320, 327 (Minn. 2010) (indicating that
the Franks test applies equally to material omissions).

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II. The district court did not err by imposing separate sentences.

Barrientoz argues that he should not have received separate sentences for his
possession-of-controlled-substance offense and his driving-after-suspension offense
because the two offenses arose out of a single behavioral incident. See Minn. Stat.
§ 609.035 (2016). “Whether an offense is subj ect to multiple sentences under Minn. Stat.
§ 609.035 is a question of law, which [appellate courts] review de novo.” State v. Ferguson,
808 N.W.2d 586, 590 (Minn. 2012).
Whether multiple crimes, at least one of which is nonintentional, 4 are part of the
same behavioral incident depends on whether the offenses arise “out of a continuing and
uninterrupted course of conduc t, manifesting an indivisible state of mind or coincident
errors [in] judgment.” State v. Gibson , 478 N.W.2d 496, 497 (M inn. 1991) (quotation
omitted). Caselaw suggests that the ultimate que stion is whether there is some essential
relationship between the crimes. See State v. Kooiman , 185 N.W.2d 534, 536-37 (Minn.
1971) (holding that a defendant’s convictions for drunkenness and criminal negligence
were “independent of each other except for [an] approximate unity of time and the possible
effect of [defendant]’s drinking on the quality of his driving”); State v. Johnson , 141
N.W.2d 517, 525 (Minn. 1966) (stating that the test is whether there is “a substantial
relationship between the conduct constituting the violations”). As a recent opinion of this

4 Barrientoz’s driving-after-suspension offense did not require the state to prove intent. See
Minn. Stat § 171.241 (2016) (requiring the state to prove willful violation of the chapter
unless the violation is elsewhere declared to be a misdemeanor); Minn. Stat. § 171.24,
subd. 1 (2016) (declaring it a misdemeanor to drive after suspension, with no requirement
of willfulness).

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court phrased it, the question is whether each offense “can be explained without reference
to” the other. State v. Black, 919 N.W.2d 704, 713 (Minn. App. 2018).
Barrientoz fails to identify any essential connection between his two crimes. Though
they were discovered by the police at the same time and place, more than a unity of time
and place is required. See State v. Sailor, 257 N.W.2d 349, 352-53 (Minn. 1977). And no
other connection between the offenses is appa rent: Barrientoz’s decision to drive without
a license began the first time he drove after suspension and continued every time he drove
after that, while his possession of metham phetamine occurred only when he was in
possession of that drug. See State v. Meland, 616 N.W.2d 757, 759-60 (Minn. App. 2000)
(applying a comparable analysis to driving with expired tabs and driving while impaired).
Similarly, the fact that the methamphetamine was hidden in the car Barrientoz was driving
while his license was suspended does not crea te a substantial relationship between his
crimes, because each “can be explaine d without reference to” the other. See Black, 919
N.W.2d at 713. There is no n ecessary logical connection between the fact that Barrientoz
was driving on a suspended license and the fact that he had methamphetamine in the car at
the same time. Thus, the district court did no t err by concluding that the offenses did not
constitute a single behavioral incident.
Affirmed.

CS-1

FLOREY, Judge (concurring specially)
While I concur with the result in this ma tter, I write separately because I do not
believe that Fort and Zanter provide the proper framework for analyzing the warrant in
Issue I of the majority opinion as argued by appellant and conceded by the state.
Both Fort and Zanter address the propriety of issuing a search warrant for a
premises, previously searched with a warrant, when the late r warrant seeks the same or
similar items, and is based on the same or similar probable cause, as the prior warrant. See
Fort, 768 N.W.2d at 342-43; Zanter, 535 N.W.2d at 632-34. In Zanter, the supreme court
stressed, “In such situations, the issuing judge must take pa rticular care to separate the
information that supported previous warrants from the new information that supports the
current warrant application.” 535 N.W.2d at 633. The Zanter court concluded that “the
police failed to provide the issuing judge with sufficient new information that could have
led the judge to conclude that a fair probab ility existed that other enumerated items not
discovered during the two previous, exhaustive searches of the Zanter home would now be
discovered during a third search.” Id. at 634.
This case, which does not involve successive warrants, is distinguishable from Fort
and Zanter. The police conducted a roadside sear ch of appellant’s vehicle based on his
consent. Probable cause is not re quired for a valid consent search. State v. Harris , 590
N.W.2d 90, 102 (Minn. 1999). The issue in a consent search is whether, under the totality
of the circumstances, voluntary consent was gi ven, and appellant does not challenge his
voluntary consent. Id. Because a finding of probable cause was neither required nor
relevant for the consent search, and the issuing judge was, therefore, not presented with a

CS-2

case in which probable cause was prev iously exhausted, the holdings in Zanter and Fort
are not applicable. Analyzing this case under Fort and Zanter is an unnecessary extension
of those cases.
While I agree with the majority’s holding that the roadside consent search was not
exhaustive, and the issuing judge could reasonably infer the same from the search-warrant
application, I would conclude, under these facts, that the i ssuing judge could decide the
issue of probable cause based on what was c ontained in the warrant application without
having to consider what information was ava ilable to the police when they conducted the
roadside search.