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This opinion will be unpublished and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
A18-1954

State of Minnesota,
Respondent,

vs.

Anthony James Harrell,
Appellant.

Filed September 3, 2019
Affirmed in part and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-18-6118

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Ryan C. Young, Special Assistant Public Defender, Fredrickson & Byron, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s order denying his motion to suppress
evidence obtained pursuant to a search warrant, arguing that the search-warrant application
contained misrepresentations and omissions that compromised the state’s showing of
probable cause, as well as its justi fication for an unannounced entry. We affirm, in part,
the district court’s determination that there was probable cause for the warrant, but we
remand for findings and an express ruling regarding appellant’s challenge to the
unannounced entry.
FACTS
Respondent State of Minnesota charged appellant Anthony James Harrell with
possession of a firearm by a prohibited person and fifth -degree controlled -substance
possession. The complaint alleged that officers executed a search warrant at a single -
family home in Minneapolis and recovered a 9mm Springfield XD handgun with a loaded
magazine, $5,300 in cash, and over 1,000 grams of marijuana. Harrell was present during
the search and admitted that the handgun, cash, and nearly 800 grams of the marijuana
belonged to him.
Harrell moved to suppress the evidence obtained during the search, asserting that
the “warrant was defective and lacked probable cause.” Harrell also moved for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), asserting that there
were material misrepresentations in the underlying search-warrant application. The district

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court granted Harrell’s request for a Franks hearing, and the search-warrant affiant, Officer
Aaron Collins of the Minneapolis Police Department, testified at the hearing.
After the h earing, Harrell submitted a memorandum in support of his motion to
suppress. He argued two grounds for suppression: the warrant wa s not supported by
probable cause once “false and o mitted information is corrected ” and the search-warrant
application “[did] not include reasonable articulable suspicion for an unannounced entry.”
The district court denied Harrell’s motion to suppress . The district court’s written order
explains that although the search -warrant application contained misrepresentations,
“probable cause to search exists even when the misrepresented facts are set to the side,”
and thus “the misrepresentations in this case were not material.” The district court did not
address Harrell’s challenge to the unannounced entry.
Harrell stipulated to the prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4,
to obtain review of the district court’s suppression ruling. Harre ll’s “waiver of rights and
agreement regarding rule 26.01, subd. 4” described the dispositive pretrial ruling as
“deni[al of Harrell’s] motion to suppress based on bad search warrant.” The district court
found Harrell guilty as charged, entered judgments of conviction on both offenses, and
sentenced him to serve a 60-month prison term for the firearm-possession offense. Harrell
appeals, challenging the denial of his motion to suppress and resulting convictions.
D E C I S I O N
Harrell contends that the search warrant in this case contained material
misrepresentations and omissions that were intentional or reckless and that suppression
was therefore appropriate. In Franks, the United States Supreme Court explained that

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where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s
request. In the event that at that hearing the allegation of
perjury or reckless disregard is established by the defendant by
a preponderance of the evidence, and, with the affidavit’s false
material set to one side, the affidavit’s remaining content is
insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the
affidavit.

438 U.S. at 155-56, 98 S. Ct. at 2676; see also State v. Doyle, 336 N.W.2d 247, 250 (Minn.
1983) (“[I]f it is established that the affiant deliberately falsified or recklessly disregarded
the truth in his affidavit, then the [district] court should set aside the false statements (or
supply the omissions) and decide whether the affidavit still establishes probable cause.”
(footnote omitted)).
When a defendant seeks to invalidate a search warrant based on misrepresentations
or omissions in a search-warrant application, the defendant must show that (1) the affiant
deliberately falsified or recklessly disregarded the truth in his affidavit, and (2) the
statement or omission was material to the probable-cause determination. State v. Andersen,
784 N.W.2d 320, 327 (Minn. 2010). “A misrepresentation or omission is material if, when
the misrepresentation is set aside or the omission supplied, probable cause to issue the
search warrant no longer exists.” Id. But e ven if a misrepresentation or omission is
material, this court will not grant relief unless the affiant deliberately falsified or recklessly

5
disregarded the truth. See State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (“[I]nnocent
or negligent misrepresentations will not invalidate a warrant.”).
This court reviews a district court’s finding regarding whether the affiant
deliberately falsified or recklessly disregarded the truth in the search -warrant affidavit for
clear error. Andersen, 784 N.W.2d at 327. But we review a district court’s determination
regarding whether the alleged misrepresentations or omissions were material de novo.1 Id.
Misrepresentations and Omissions
We begin by determining whether there were misrepresentations and omissions in
the underlying search-warrant application. The information in the application was based
on a tip provided by a cooperating defendant (CD). 2 The relevant portions of the
application are as follows:
Your affiant and assisting investigator Sergeant Jeff
Carter, are conducting a criminal inquiry involving the address
of 2805 Oliver Ave N and the resident [D.B.] . . . for the
distribution of controlled substances to wit, marijuana and the
illegal possession of firearms and ammunition. . . .

This investigation began after your affiant received
information from a cooperating defendant (CD hereinafter)
who indicated that [D.B.] was possessing and distributing large
quantities of high grade marijuana from 2805 Oliver Ave N.
The CD further indicated that [D.B.] has been obser ved in
possession of a handgun. Your affiant is aware that [D.B.] is a
convicted felon who is prohibited from possessing firearms
and ammunition. Your affiant positively identified [D.B.]
utilizing a photograph provided by the Minnesota Bureau of
Criminal Apprehension. During a check of the CLEAR
database provided by Thomson Reuters, your affiant found that

1 Because our review of the district court’s materiality determination is de novo, we do not
address Harrell’s arguments assigning error to the district court’s analysis of that issue.
2 A cooperating defendant is an individual whose information has not yet proved reliable.

6
in 2016 [D.B.] had a utility for 2805 Oliver Ave N listed to
him.
After receiving this information your affiant conducted
a controlled buy of marijuana from [D.B.] while at 2805 Oliver
Ave N. This controlled buy took place within the past 72hrs.
Prior to the buy your affiant and Sgt. Carter met with the CD
who was supplied with a quantity of pre -recorded MPD buy
money and checked for contraband, nothing was found. Your
affiant and Sergeant Carter watched as the CD arrived at 2805
Oliver Ave N and entered into the residence. After a period of
time the CD exited the residence and met with your affiant.
The CD handed your affiant a quantity of high grade marijuana
which the CD indicated was purchased from [D.B.] while
inside 2805 Oliver Ave N. The marijuana field tested positive
for the presence of tetrahydrocannabinol.

A criminal history check of [D.B.] revealed that he has
been charged with or convicted of the following offenses:
Loitering with intent to buy/sell narcotics 2000, possession of
marijuana in a motor vehicle 2002, loiter with intent to buy/sell
narcotics 2002, 5 th degree controlled substance crime 2002,
5th degree controlled substance crime 2003, prohibited person
in possession of a firearm 2004 and controlled substance crime
5th degree 2013.

(Emphasis added.)
The district court found, and the state agrees, that the warrant application
misidentified the suspect-resident of 2805 Oliver Avenue North as D.B. The district court
found that “all of the information about [D.B.] was misrepresented by Officer Collins, even
if done unintentionally.” “[T]he CD identified the target as a ‘white male with red hair,’
[and] not as [D.B.]” and “[D.B.] was developed as a suspect only after [Officer Collins]
conducted his own independent research of possi ble tenants at [2805 Oliver Avenue
North].” The district court’s findings explain that
Officer Collins obtained a photograph of [D.B.] from
the Minnesota Department of Driver and Vehicle Services

7
(DVS). The photograph was a driver’s license photograph that
displayed only the front of [D.B.’s] face and his shoulders.
Officer Collins showed the photograph to the CD and asked
whether the photograph displayed the person selling drugs in
2805 Oliver Avenue North. The CD indicated that it did. This
was the manner in which [D.B.] was identified as the suspected
drug dealer.

The record indicates , and the parties agree, that the CD’s photo identification
occurred after the controlled buy. The district court found that “[t]he CD did not provide
[D.B.’s] name, as the warrant affidavit suggested, and [D.B.] could not have possibly been
the person selling drugs out of 2805 Oliver Avenue North because he was incarcerated in
a federal prison at that time.”
Although the parties agree that the warrant application misr epresents that the
suspect-resident was D.B., t he parties disagree regarding how to cu re the
misrepresentation. Because that determination ultimately impacts materiality, we consider
it de novo. See Andersen, 784 N.W.2d at 327 (adopting federal courts’ reasoning that “the
issue of materiality presents a mixed question of law that is revie wed under the de novo
standard”).
Harrell argues that we should set aside all statements in the application regarding
D.B., including statements that “[D.B.] was possessing and distributing large quantities of
high grade marijuana from 2805 Oliver Ave N,” that “[D.B.] is in possession of a firearm,”
and that “[D.B.] utilizes this firearm as a means of protection for his controlled substance
sales.” The state counters that “the district court was not required to ignore that the house
[was] under investigat ion for ‘marijuana and the illegal possession of firearms and
ammunition’ and that [the] house had a ‘resident’ who was actually doing the distribution

8
and possession.” The state argues that “[i]nstead, the district court was simply required to
‘set aside’ that D.B. was the specific ‘resident,’ along with other D.B.-specific information
(like his criminal history).” Harrell responds that the state’s approach is impermissible
because it adds the state’s “own generic phrases—‘resident,’ ‘suspect’ or ‘person’” in place
of specific language identifying D.B. in the search -warrant application. For the reasons
that follow, the state has the better argument.
The search-warrant application describes “the address of 2805 Oliver Ave N and
the resident [D.B.]” and refers to D.B. as “the resident of 2805 Oliver Ave N.” (Emphasis
added.) Although the warrant application misrepresented that D.B. was the resident drug-
dealer at 2805 Oliver Avenue North, it did not misrepresent the allegation that the resident
was selling large quantities of high-grade marijuana at that location. Indeed, Harrell does
not argue that Officer Co llins misrepresented any information regarding the suspect -
resident’s alleged illegal activities; the misrepresentations regard ed only the suspect -
resident’s identity. We therefore set aside only the information that identifies the suspect-
resident as D.B. and describes D.B.’s criminal history , and not the i nformation that
describes the suspect-resident’s activities.
Harrell argues that this court “must also add material omissions .” See Doyle, 336
N.W.2d at 250 (stating that if the affiant deliberately falsified or recklessly disregarded the
truth in his affidavit, then the district court should “supply the omissions ” and decide
whether the affidavit still establishes probable cause ). Harrell argues that two omissions
“[bear] on the trust and veracity” of the CD: “the fact that he similarly faced drug -related
charges and what those charges were” and that “following the controlled -buy, the

9
cooperating defendant was shown a photograph of [D.B.] and identified [D.B.] as the
individual who he purchased the drugs from.”
Harrell does not point to any record evidence suggesting that the CD faced drug -
related charges. We therefore fail to see how the lack of such information in the search -
warrant application could be considered a material omission. But the fact that the CD
misidentified the resident drug-dealer as D.B. was a relevant omission. As the district court
noted, “Officer Collins presented information in the search warrant in a misleading way,”
promoting “an inference that the informant (the CD) is credible and that the information
[the CD] provided in this case was true.”
Having identified the information that must be set aside to cure the
misrepresentation regarding the suspect-resident’s identification as D.B., as well as the
related omission that must be supplied, we turn to Harrell’s challenges to the search
warrant.
Probable Cause
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects” against “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Police generall y must
obtain a valid search warrant issued by a neutral and detached magistrate before conducting
a search. State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014). To be valid, a search
warrant must be supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. “Probable cause exists if the judge issuing a warrant determines that ‘there is a fair

10
probability that contraband or evidence of a crime will be found.’” Yarbrough, 841
N.W.2d at 622 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit before him, including the “veracity”
and “basis of knowledge” of pe rsons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. at
238, 103 S. Ct. at 2332).
When a search -warrant application includes information from an informant, the
supporting affidavit “must provide the magistrate with adequate information from which
[the magistrate] can personally assess the informant’s credibility.” State v. Siegfried, 274
N.W.2d 113, 114 (Minn. 1978). This court has articulated six factors that are relevant
when assessing the reliability of a confidential, but not anonymous, informant. State v.
Ross, 676 N.W.2d 301, 304 (Minn. App. 2004), review denied (Minn. June 15, 2004). Two
are relevant here: “an informant’s reliability can be established if the police can corroborate
the information” and “in narcotics cases, ‘controlled purchase’ is a term of art that indicates
reliability.” Id.
The district court explained that it was
troubled by Officer Collins’ cursory research into a database
that he is not trained to use, his suggestive method of having
the CD identify [D.B.] as a suspect, and the manner in which
he presented this information to the Court . Officer C ollins
presented information in the se arch w arrant in a misleading
way, suggesting that the CD provided a specific name fo r the
alleged suspect and that Officer Collins corroborated the
information using investigatory databases. This manner of

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corroboration promotes an inference th at the informant (the
CD) is credible and that the informati on [the CD] provided in
this case was true.

But the district court concluded that despite those “serious concerns, . . . the
representations about [D.B.] were ultimately i mmaterial to probable cause to search 2805
Oliver Avenue North.” The district court did not make a n express finding regarding
whether the misrepresentation and omission were deliberate or reckless , but it was
unnecessary to do so giv en its determination that the misrepresentation regardin g the
suspect-resident’s identity was immaterial. See Andersen, 784 N.W.2d at 327 (stating that
to obtain relief, a defendant must show that the affiant deliberately falsified or recklessly
disregarded the truth in his affidavit and that the statement or omission was material to the
probable-cause determination).
We reach the same conclusion regarding materiality. The CD’s controlled buy of
high-grade marijuana from a person at 2805 Oliver Avenue North corroborates the CD’s
tip that a resident at that location was distributing large quantities of high-grade marijuana,
and it establishes the CD’s reliability regarding those activities. The identity of the suspect-
resident is largely irrelevant. O nce the misrepresentation and the omission regarding the
suspect-resident’s identity are accounted for, the totality of the remaining circumstances—
the CD’s tip, which was co rroborated by the controlled buy—establish probable cause to
search 2805 Oliver Avenue North for evidence of drug-sale activities.
In sum, the misrepresentation and omission stemming from the misidentification of
the suspect-resident as D.B. were not material to the probable-cause determination.

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Unannounced Entry
Under early common law, courts adopted a “knock and announce” requirement
applicable to the execution of search warrants. Wilson v. Arkansas, 514 U.S. 927, 931-33,
115 S. Ct. 1914, 1916 -17 (1995). The purpose of the knock -and-announce requirement
primarily was to prevent property damage; the common law required that occupants be
given an opportunity to comply with a search warrant and to allow the executing officers
to enter without brea king down their door. Id. at 931-32, 115 S. Ct. at 1916 -17. The
common law recognized that forcible entry without an announcement would pena lize
someone who “‘did not know of the process, of which, if he had notice, [presumably] would
[have] obey[ed] it.’” Hudson v. Michigan, 547 U.S. 586, 594, 126 S. Ct. 2159, 2165 (2006)
(quoting Wilson, 514 U.S. at 931-32, 115 S. Ct. at 1917).
A reasonableness inquiry under the Fourth Amendment includes consideration of
the necessity of an unannounced entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn.
2000). The police must “ inform the issuing magistrate of the circumstances that they
believe justify the unannounced entry and to obtain specific advance authorization for an
unannounced entry.” Id. “To substantiate the need for a no-knock warrant an officer must
establish more than that drugs are involved.” Id. The “police must have a reasonable
suspicion that knocking and announcing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the effective investigation of the crime
by, for example, allowing the destruction of evidence.” Id. (quotation omitted). The
standard is “reasonable suspicion,” and “[i]n other contexts [the supreme court] has defined
reasonable suspicion as something more than an unarticulated hunch, . . . the officer must

13
be able to point to something that objectively supports the suspicion at issue.” Id. The
showing required for reasonable suspicion justifying a no-knock warrant is “not high.” Id.
(quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1422 (1997)).
“Given the constitutional dimension to the method of entry into a residence,
evidence should be suppressed when the circumstances do not warrant an unannounced
entry.”3 Id. When the material facts are undisputed, this court “independently determine[s]
whether evidence obtained during a search conducted with a no -knock warrant should be
suppressed.” State v. Goodwin , 686 N.W.2d 40, 43 (Minn. App. 2004) (citing Wasson,
615 N.W.2d at 320), review denied (Minn. Dec. 14, 2004).4
As support for an unannounced entry in this case, the warrant application stated:
An unannounced entry is necessary to prevent the loss,
destruction, or removal of the objects of the searc h, or to
protect the safety of the searches or the public because, [t]he
cooperating defendant in this case indicated that the target of
this investigation, [D.B.] is in possession of a firearm. The
cooperator further went on to indicate that [D.B.] utili zes this
firearm as a means of protection for his controlled substance
sales. [D.B.] has been convicted of prohibited person in
possession of a firearm in the past. Your affiant knows that an
unannounced entry allows officers executing the search
warrant the element of surprise while making entry to the

3 We note that the United States Supreme Court more recently held that the exclusionary
rule does not apply to violations of the knock -and-announce requirement. Hudson, 547
U.S. at 594, 599, 126 S. Ct. at 2165, 2168. We are not aware of any Minnesota precedent
rejecting Hudson. See State v. Jackson , 742 N.W.2d 163, 165, 178 -80 (Minn. 2007)
(distinguishing the unannounced search in Hudson from the invalid nighttime search in
Jackson and declining to address as unnecessary an argument that Minnesota should reject
Hudson on state constitutional grounds). Because we remand Harrell’s challenge to the
unannounced entry for further proceedings, we do not consider the effect of Hudson.
4 This court’s decision in Goodwin predates the Supreme Court’s holding, in Hudson, that
the exclusionary rule does not apply to violations of the knock-and-announce requirement.
See Hudson, 547 U.S. at 594, 599, 126 S. Ct. at 2165, 2168.

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residence. This element of surprise allows the target of the
investigation and other person(s) less time to arm themselves.
This makes the entry safer for officer s, person(s) inside of the
residence, and the general public.

Harrell contends that once the misrepresentation and omission regarding the
suspect-resident’s identi ty are accounted for , the search -warrant application does not
provide justification for an unannounced entry. 5 Harrell argues that “[t]he only allegation
contained in the warrant application that establishes knocking may be dangerous relates to
[D.B.], not [him],” noting that the “search warrant application states that [D.B.], not [him],
has been observed in possession of a handgun an d that [D.B.], not [him], is a convicted
felon who is prohibited from possessing firearms and ammunition.” Harrell also notes that
the search-warrant affidavit includes D.B.’s criminal history, which does not apply to him.
Once again, to obtain relief, Harrell must show that Officer Collins deliberately
falsified or recklessly disregarded the truth in his affidavit and that the false statement or

5 We question whether Harrell’s challenge to the unannounced, or no -knock, entry
provision is properly before this court. Once again, this is an appeal from a proceeding
under Minn. R. Crim. P. 26.01, subd. 4. That rule provides, “When the parties agree that
the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling
makes a contested trial unnecessary, the [procedure in rule 26.01, subd. 4] must be used to
preserve the issue for appellate review.” Minn. R. Crim. P. 26.01, subd. 4(a) (emphasis
added). In this case, the district court did not expressly rule on Harrell’s challenge to the
unannounced entry. However, the parties did not raise or address this procedural issue in
their briefing, and at oral a rgument, the state argued that it is “appropriate to address” the
unannounced entry “in the interests of justice.” Given this unique procedural posture, we
will address the issue. But our willingness to do so in this case does not mean that we will
do so in the future. The language of 26.01, subd. 4, limiting its application to the district
court’s “ruling on a specified pretrial issue” is clear and easily complied wi th. If a
defendant wants to proceed under rule 26.01, subd. 4, and the district court has not
expressly ruled on the relevant pretrial issue, the defendant should request a ruling from
the district court.

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omission was material. See Andersen, 784 N.W.2d at 327 ; Moore, 438 N.W.2d at 105
(“[I]nnocent or negligent misrepresentations will not invalidate a warrant.”). If we were to
determine, under our de novo standard of review, that the misrepresentation and omission
in this case are material regarding the warrant’s unannounced-entry provision, we could
not complete the analysis because we are wi thout a factual finding regarding whether the
misrepresentations and omission were deliberate or reckless. 6 We cannot determine
whether the misrepresentation and omission were deliberate or reckless because that is a
factual determination and we are not a fact -finding court. See Andersen, 784 N.W.2d at
327 (adopting federal court s’ reasoning that “ the issue of whether an affiant deliberately
made statements that were false or in reckless disregard of the truth involves a fact-based
question”); State v. Colvin, 645 N.W.2d 449, 453 (Minn. 2002) (“Appellate courts have no
. . . business finding facts . . . .”).
Because the district court’s findings regarding the first part of the Franks test are
inadequate to enable effecti ve appellate review of Harrell’s challenge to the warrant’s
unannounced-entry provision, a remand is appropriate. See State v. Wicklund, 201 N.W.2d
147, 147 (Minn. 1972) (remanding for findings where district court failed to make factual
findings justifying suppression order); see also State v. Licari , 659 N.W.2d 243, 255 -56
(Minn. 2003) (remanding to allow district court to conduct hearing and make findings of
fact regarding issues it did not reach). We therefore remand this case to the district court

6 The district court found that “all of the inform ation about [D.B.] was misrepresented by
Officer Collins, even if done unintentionally,” which may suggest that the district court
found that the misrepresentation was not deliberate. But the district court’s order does not
indicate whether it also found that the misrepresentation was not reckless.

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for findings regarding whether the misrepresentation and omission described herein were
deliberate or reckless. In addition to such findings, the district court should expressly rule
on Harrell’s challenge to the unannounced entry.
In conclusion, we affirm the district court’s determination that there was probable
cause for the search warrant despite the misrepresentation and omission stemming from
the search-warrant application’s misidentification of the suspect -resident as D.B. But we
remand the district court’s implied rejection of Harrell’s challenge to the unannounced
entry for further proceedings consistent with this opinion.
Affirmed in part and remanded.