A19-0714

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0414
A19-0714

Court of Appeals Lillehaug, J.

In re K.M.,
Petitioner,

K.M.,

Appellant,

vs. Filed: March 11, 2020
Office of Appellate Courts
Burnsville Police Department,

Respondent,

State of Minnesota,

Respondent,

John Does 1–4,

Appellants.
________________________

Andrew S. Birrell, Ian S. Birrell, Marc E. Betinsky, Birrell Law Firm, PLLC, Minneapolis,
Minnesota; and

Elizabeth R. Duel, Ryan P. Garry, Ryan Garry Attorney LLC, Minneapolis, Minnesota, for
appellant K.M.

Alina Schwartz, Campbell Knutson, P.A., Eagan, Minnesota, for respondent Burnsville
Police Department.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and
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Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Jean E. Burdorf,
John Patrick Monnens, Assistant County Attorney s, Minneapolis, Minnesota, for
respondent State of Minnesota.

Christopher W. Madel, Mack H. Reed, Stephen M. Premo, Madel PA, Minneapolis,
Minnesota, for appellants John Does 1–4.

Daniel J. Koewler, Ramsay Law Firm PLLC, Roseville, Minnesota, for amicus curiae
Minnesota Association of Criminal Defense Lawyers.

William Ward, Minnesota State Public Defender, Cathryn Middlebrook, Chief Appellate
Public Defender, Saint Paul, Minnesota, for amicus curiae Minnesota Board of Public
Defense.

Deborah Ellis, Eighth Circuit Amicus Committee, Saint Paul, Minnesota, for amicus curiae
National Association of Criminal Defense Lawyers.

Travis J. Smith, Murray County Attorney , Slayton, Minnesota, for amicus curiae
Minnesota County Attorneys Association.

Robin M. Wolpert, Sapientia Law Group PLLC, Minneapolis, Minnesota; and

Charles F. Webber, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota, for
amicus curiae Minnesota State Bar Association.

Mark J. Schneider, Gary K. Luloff, Jennifer J. Crancer, Chestnut Cambronne PA ,
Minneapolis, Minnesota, for amicus curiae Suburban Hennepin County Prosecutors
Association.
_____________________

S Y L L A B U S

1. The district court did not err in construing a motion for return of property
seized from an attorney’s law office in the course of a warranted search to be a petition for
return of seized property under Minnesota Statutes § 626.04 (2018).
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2. The district court did not abuse its discretion in denying an attorney’s petition
under Minnesota Statutes § 626.04, even though the district court should have required the
State to return to the attorney copies of all client files seized.
Affirmed.
O P I N I O N

LILLEHAUG, Justice.

This case concerns the seizure of client files from an attorney’s office, pursuant to
a warrant, when the attorney is the target of an ongoing criminal investigation. After the
search and seizure, the attorney filed a motion for the return of the seized property ,
including client files. The district court considered the motion to be a petition under
Minnesota Statutes § 626.04 (2018), by which a district court may order the return of
property seized by law enforcement to the property owner. The district court heard the
motion and, after conducting an ex parte hearing as authorized by the statute, denied the
petition on the ground that the property was being held in good faith as potential evidence
in an uncharged matter. The matter is no longer uncharged; while this appeal was pending,
the attorney was charged with theft by swindle.
We affirm the district court. We do so, however, without prejudice to any future
challenge to the lawfulness of the search and seizure.
FACTS
The petitioner in this proceeding is a practicing attorney—K.M. The underlying
law enforcement investigation arises out of K.M.’s representation of two clients in a
controlled-substances investigation—M.W. and J.S. M.W.’s and J.S.’s residence was
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searched pursuant to a warrant and substances were seized. They retained K.M. as their
attorney.
In December 2018, M.W. and J.S. reported to law enforcement some disturbing
allegations. Whether or not these allegations are true is not for us to decide now; we recite
them only to set the stage for our discussion of the ensuing search of K.M.’s home office
and the seizure of her client files.
During her representation, K.M. advised M.W. that the case agent and prosecuting
attorney in the controlled-substances investigation had proposed a deal by which M.W.
would not be charged. She told him that he had two options to avoid charges. He could
donate $35,000 to the police union and become a confidential informant. Or he could make
a larger donation—$50,000—without becoming an informant.
M.W. allegedly chose the second option, but said he could only pay $15,000. In
response, K.M. purported to make a telephone call to the case agent, out of M.W.’s earshot.
K.M. then told M.W. that the case agent had agreed to the $15,000 payment if made that
day with more money to follow. M.W. agreed to the case agent’s terms.
K.M. drove M.W. to his bank. M.W. withdrew $15,000 in a cashier check payable
to K.M., who directly deposited it into her bank account, and drove M.W. home. M.W.
assumed K.M. would pay the case agent.
Eventually, through another attorney retained b y M.W. and J.S., law enforcement
learned about, and began to investigate, the deal allegedly brokered by K.M. T he
Burnsville police applied for a warrant to search K.M.’s home, where she operated her law
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office. The search warrant application detailed the allegations M.W. had made against
K.M. and provided further support for them.
A judge in Washington County issued the requested warrant. It authorized named
police officers to enter K.M.’s home to search for, and seize, eight categories of items.
Relevant here, the warrant authorized the seizure of : “Computers such as laptops,
desktops, and or towers”; “Electronic devices which could contain or access files held
remotely”; and “Any files, invoices, or Documents associated with representation of M.W.
and J.S.”
On February 27, 2019 , the Burnsville police executed the warrant and seized a
personal computer, a computer tower, a laptop, two external hard drives, two thumb drives,
a paper document, and a paper file folder. According to K.M’s attorneys, the electronic
devices seized contain ed approximately 1,500 to 2,000 files about K.M.’s current and
former clients, including both civil and criminal matters.
On March 5, 2019, the Burnsville police applied for a second warrant, this time in
Dakota County, to perform searches of the electronic devices seized under the authority of
the first warrant. The application represented that law enforcement was “sensitive to the
fact that” K.M. is an attorney , and that “during the search” of her devices “other client
records may be encountered.” The application represented that the search would be
performed by the Dakota County Electronic Crimes Task Force, which would transmit to
other officers only data “pertaining to M.W. and J.S.”
The district court issued the second warrant as requested. The warrant authorized
not only the Electronic Crimes Task Force to search the devices, but also named Burnsville
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police officers and “any other authorized person.” They were authorized to search for four
categories of specified files and documents related to M.W. and J.S .1 The district court
sealed the application and the search warrant.
The same day the second warrant was issued, March 5, 2019, K.M. filed a pleading
in Dakota County District Court captioned “Motion for Return of Seized Property or Other
Relief.” The motion was not accompanied by a complaint, was not captioned as one for a
temporary restraining order or a temporary injunction, and was not supported by affidavits
or other sworn evidence.
In the motion, K.M. sought “relief from the search of the lawyer’s office and seizure
of perhaps a thousand client files.” K.M. requested an immediate hearing “given the
confidential nature of the records seized and the irreparable potential harm presented.” The
motion was based primarily on our decision in O’ Connor v. Johnson, 287 N.W.2d 400
(Minn. 1979) , and asserted that O’Connor stood for the proposition that a warrant
authorizing the search of an attorney’s office is unreasonable and invalid absent a showing
of criminal wrongdoing by the lawyer or a threat that the documents will be destroyed. The
motion observed that the holding of O’Connor was “in accord with” the Fourth and Sixth
Amendments to the U.S. Constitution, provisions of the Minnesota Constitution, the
attorney-client privilege under Minnesota Statutes § 595.02 (2018), and Minnesota Statutes

1 At oral argument, the State represented that, notwithstanding the breadth of the
warrant, only one IT person from the Electronic Crimes Task Force had searched the seized
devices. Using search terms, the IT person identified documents responsive to the warrant
and conveyed them to the investigating officers. The seized electronic devices remain in
the custody of the Electronic Crimes Task Force.
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ch. 626 (2018). K.M. requested: (1) that the court declare the search warrant2 invalid and
return the seized property; and (2) such other and further relief as may be appropriate.
The hearing on K.M’s motion was held three days later, on March 8, 2019. K.M.’s
counsel started the hearing by describing the execution of the warrant and what property
had been seized. He asserted that the warrant violated constitutional particularity
requirements, and stated that he was trying “to get this matter in front of the court as fast
as we can to try to initially, if you will, stop the bleeding.” He asked the court to order that
no one look at the seized information because the law does not permit it.
The court then asked K.M.’s counsel if he was asking for “basically a temporary
restraining order.” K.M.’s counsel responded, “Yes, I’ll take an order in any form.” The
judge said, “I’m just trying to understand what you’re requesting.” K.M.’s counsel
responded, “Well, you could call it a temporary restraining order. You could call it a writ
of prohibition request.”
In response, the assistant city attorney, representing the Burnsville police
department, advised the court that one of K.M.’s attorneys had made a written demand
under section 626.04 for return of the seized property. He further stated that the city was
waiving the timelines in that statute so that the matter could be heard on an expedited basis
as K.M. had requested. He asked the court for an ex parte hearing as authorized by

2 At the time of the motion and the subsequent hearing, law enforcement had provided
to K.M. only the first warrant. The second warrant and the applications for both warrants
were under seal.
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section 626.04 so that law enforcement could summarize the status of an ongoing
investigation.
Responding to the city, K.M.’s counsel objected to an ex parte hearing, and said: “I
believe that we have raised more than this statute as a reason for the requested relief . . . .”
He argued that it was unfair and a violation of due process for K.M.’s attorneys to be
excluded from the law enforcement summary.
The district court granted the city’s request and conducted some of the hearing
without K.M. or her counsel present. Ex parte, the investigating detective testified under
oath that K.M. was the target of a criminal investigation and summarized the evidence
collected to that point. The court received copies of the search warrant applications and
the warrants issued in Washington County and Dakota County.
After the ex parte portion of the hearing concluded, K.M.’s counsel asked the district
court to order that the Burnsville Police Department not look at the seized materials until
the court ruled on K.M.’s motion. The court declined, saying “I’m going to leave
everything as it is now.”
On March 11, the district court issued findings of fact and an order denying K.M.’s
motion. In response to K.M.’s argument that an ex parte hearing should not have been
held, the court cited section 626.04 and stated, “The court determined that the procedure
outlined in the statute was the best way for the court to get the information it needed to
make a decision on this matter.” Based on the testimony and exhibits received ex parte,
the court concluded that “the circumstances of this case [are] distinguishable from those in
O’Connor v. Johnson.” The court decided that “the seized property is being held in good
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faith as potential evidence in a matter that is uncharged at this time,” referring to
section 626.04(a)(1).
The district court did not address the issue of K.M.’s access to her client files. At
oral argument before us, counsel for K.M. and the State agreed that copies of K.M.’s files
from the seized electronic devices had been returned to her.
Two days after the district court denied relief, K.M. filed a petition for a writ of
prohibition in the court of appeals. K.M. argued that the seizure of confidential and
privileged file materials presents “immediate, irreparable harm both to [K.M.] and to her
current and former clients.” K.M. requested: (1) a writ of prohibition requiring the city to
return all seized property, including all client files, to K.M., and to destroy any and all
copies of all seized property; and (2) whatever further orders are necessary to uphold the
constitutional and statutory protections due to K.M. and her clients.
The court of appeals denied K.M.’s request for a writ of prohibition. K.M. v.
Burnsville Police Dep’t (In re K.M.), No. A19-0414, Order at 4 (Minn. App. filed Mar. 26,
2019). Construing K.M.’s motion in the district court to have been made under
section 626.04, the court of appeals decided that K.M. had not demonstrated that an appeal
from the district court’s order would be an inadequate remedy. Id. at 3–4.
K.M. sought, and we granted, review of the court of appeals’ decision denying a
writ of prohibition. K.M. also appealed the district court’s order to the court of appeals,
and we ordered accelerated review. See Minn. Stat. § 480.10, subd. 2(b) (2018). We
consolidated the matters for briefing, oral argument, and decision. We granted leave to
John Does 1–4, clients of K.M., to intervene as appellants. We granted leave to the State
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of Minnesota to intervene as a respondent. We also granted leave to numer ous
organizations to participate as amici curiae.
ANALYSIS
We have never articulated our scope of review of proceedings held under Minnesota
Statutes § 626.04. But there is useful guidance in decisions addressing motions to suppress
evidence. See, e.g., State v. deLottinville, 890 N.W.2d 116, 119 (Minn. 2017) (reviewing
factual findings for clear error and legal determinations de novo). Therefore, we will
review the district court’s factual findings for clear error and its legal conclusions de novo.
I.
K.M. contends that the district court erred in not granting her motion to return the
property that law enforcement seized. To determine whether the district court erred, we
must first determine the nature of the proceeding K.M. initiated in the district court. When
K.M. filed her motion, she had not yet been charged with a crime. There was no pending
civil action, and K.M. did not commence one by service of a summons and complaint.
See Minn. R. Civ. P. 3.01–.02.
In this procedural posture, K.M.’s motion signaled that she was seeking relief under
Minnesota Statutes § 626.04. To do so would be logical. Section 626.04 creates a remedy
for the return of property seized by law enforcement with or without warrant. The owner
may make a written request to the law enforcement agency for return of the property. Minn.
Stat. § 626.04(a). If the property is not returned within 48 hours, the owner may file a
petition for its return. Id. The district court must decide the petition after a hearing
“without jury trial and by a simple and informal procedure.” Id. Evidence at the hearing
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need not be admissible under the Minnesota Rules of Evidence. Id. On an ex parte basis,
law enforcement may “summarize the status and progress of an ongoing investigation that
led to the seizure.” Id. The court shall not order the return of the property if it finds any
one of four circumstances; one, relevant here, is that “the property is being held in good
faith as potential evidence in any matter, charged or uncharged[ .]” Minn. Stat.
§ 626.04(a)(1).
In this case, K.M.’s motion was styled as one “for return of seized property or other
relief.” Section 626.04 refers to requests and petitions “for return of the property.” Minn.
Stat. § 626.04(a). K.M. submitted no sworn evidence, indicating that she viewed the
procedure to be simple and informal. The motion cited chapter 626. And K.M.’s actions
leading up to filing the motion —making a written request for return of the property and
obtaining the city’s waiver of the time requirements in section 626.04—suggested that
K.M. was seeking relief under that statute.
Based on all of these facts and circumstances, it was reasonable for the district court
to construe K.M.’s motion as a petition under section 626.04, and then to decide the motion
based on that statute. To the extent that K.M. contends that she also asserted separate
constitutional claims, her motion did not make that clear. She relied on O’Connor, but
alleging that O’Connor was “in accord with” constitutional principles does not constitute
a plain statement of a constitutional claim. We cannot say that the district court erred in
failing to decide constitutional claims at this stage.
To be sure, we can well understand that K.M. wanted to proceed quickly—all of her
client files, apparently including attorney -client privileged communications and work
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product, had just been seized. Indeed, section 626.04 provides a speedy and informal
remedy, and the district court and the parties proceeded expeditiously. Now, with the
benefits of time and access to documents previously under seal, K.M. and her intervenor
clients have capably articulated and briefed multiple constitutional arguments. But these
arguments were not squarely before the district court in the expedited proceeding. Under
the circumstances, we cannot fault the district court for construing the motion as a petition
under section 626.04, hearing law enforcement testimony and receiving exhibits ex parte,
and deciding the motion expeditiously.
II.
With the nature of the district court proceeding firmly in mind, we consider whether
the district court erred in its application of section 626.04 to deny K.M. the return of her
seized property. The statute provides,
[T]he court shall not order the return if it finds that:
(1) the property is being held in good faith as potential evidence in any
matter, charged or uncharged;
(2) the property may be subject to forfeiture proceedings;
(3) the property is contraband or may contain contraband; or
(4) the property is subject to other lawful retention.

Minn. Stat. § 626.04(a).
Here, applying paragraph (1), the district court found that the seized files were being
held as potential evidence in a pending investigation. This finding is well-supported by
the evidence. In the ex parte portion of the hearing, the district court heard sworn testimony
and received exhibits about the ongoing criminal investigation of K.M. for theft by swindle.
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The property seized, including the electronic devices, was potential evidence in that
investigation.
The district court also did not clearly err in deciding that the property was being
held in good faith. The term “good faith” means “ ‘[a] state of mind consisting in (1)
honesty in belief or purpose [or] (2) faithfulness to one’s duty or obligation.’ ” J.E.B. v.
Danks, 785 N.W.2d 741, 749 (Minn. 2010) (first alteration in original) (quoting Good
Faith, Black’s Law Dictionary (9th ed. 2009) ). The district court had the opportunity to
hear the testimony of the investigating detective, to observe his demeanor, and to consider
the search warrants issued by two other district court judges. The district court’s finding
that the law enforcement officers were proceeding in good faith is not clearly erroneous.
Finally, the district court did not err in declining to order the immediate return of
the property on the authority of O’Connor. That case involved a search warrant for an
attorney’s office issued for the purpose of seizing a client’s business records as part of a
criminal investigation into the client’s activities. 287 N.W.2d at 401. We noted
specifically that there was “no claim of wrongdoing by the attorney [.]” Id. at 402.
Although we acknowledged the importance of protecting all clients’ confidences,
id. at 404, our holding that the warrant was unreasonable was carefully limited to the search
of an attorney’s office “when the attorney is not suspected of criminal wrongdoing and
there is no threat that the documents sought will be destroyed,” id. at 405.
In this case, by contrast, the warrant for the search of K.M.’s office was issued for
the purpose of seizing the attorney’s records as part of a criminal investigation into the
attorney’s activities. Certainly searches of offices of attorneys targeted in criminal
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investigations raise many concerns,3 and we share these concerns. We may have occasion
to announce guidelines for such warrants, including how client files—paper and
digital—may be searched. But the expedited proceeding in this case, with a petition under
section 626.04 based on only the first warrant, unsupported by affidavit or testimony, and
with a limited factual record, is not the appropriate occasion.
In the meantime, there are other avenues by which the important issues regarding
both search warrants may be litigated. K.M., the Doe intervenors, and amici have raised
constitutional and privilege issues that were not squarely presented to, or fully litigated in,
the district court. These issues include the breadth of the warrants, precisely who was
authorized to search and seize, and when, how, and by whom client files were actually
searched. Our decision today is without prejudice to those issues as they may be developed
in the pending criminal case. Nor does our decision prejudice potential civil claims. Today
we decide only a narrow issue under section 626.04.
Although we affirm the decision of the district court, we do so with a caveat. The
district court should have ordered that copies of the seized client files be immediately
returned to K.M. It is vital to any attorney that she have access to her files to fulfill her

3 As we recognized in State v. Poole, the privacy rights of a professional’s clients (in
that case, patients protected by the doctor-patient privilege) “are potentially subject to
invasion any time [warranted] searches” of the professional’s office are conducted.
499 N.W.2d 31, 35 (Minn. 1993). The Justice Manual, formerly known as the United
States Attorneys’ Manual, specifically directs that prosecutors maintain “close control”
over searches of “the premises of an attorney who is a subject of an investigation . . .
[b]ecause of the potential effects of this type of search on legitimate attorney -client
relationships . . . .” Dep’t of Justice, Justice Manual § 9-13.420 (Jan. 2020).
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professional responsibilities. This includes not just advising her clients in ongoing matters,
but also notifying clients that their open a nd closed files have been seized by law
enforcement so that those clients can take timely steps to protect their rights.
We understand from counsel that law enforcement eventually provided to K.M.
electronic copies of her files. Therefore, at this juncture, the issue is moot and no further
action is required. See Dean v. City of Winona, 868 N.W.2d 1, 9 (Minn. 2015).
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.