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This opinion will be unpublished and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
A19-0609

State of Minnesota,
Respondent,

vs.

Jeffrey Allen McCarthy,
Appellant.

Filed February 3, 2020
Reversed and remanded
Hooten, Judge

Otter Tail County District Court
File No. 56-CR-18-2648

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Jason Steffe n, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Bryan, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from final judgment, appellant argues that his conviction for
fifth-degree controlled-substance and paraphernalia crimes must be reversed because the

2
district court erred by directing the state to file a supplemental brief on the attenuation
doctrine, which neither party raised in their initial briefs on the defendant’ s suppression
motion, thereby violating his right to an impartial judge. Appellant also argues that ,
although the district court found that officers violated appellant’s Fourth Amendment rights
by unlawfully seizing him , the district court erred by failing to suppress evidence
discovered as a result of the unlawful seizure because the district court determined that a
subsequent discovery that appellant had a n arrest warrant attenuated the taint of the
unlawful seizure. We reverse and remand.
FACTS
Shortly before midnight on September 11, 2018, appellant Jeffrey McCarthy was
observed walking across the parking lot of a grocery store by Deputy Aaron Sprout of the
Otter Tail County S heriff’s Office. Deputy Sprout was parked in his marked squad car
next to the marked squad car of Officer Jared Bachelder of the Perham Police Department.
When Deputy Sprout saw McCarthy, he recalled that the week prior, a young male fled on
foot from him several blocks from the grocery store. The young man was wearing a hooded
sweatshirt with the hood up “so [Deputy Sprout] didn’t get a good look at him.” Despite
this, Deputy Sprout believed that the “male walking through the parking lot looked
somewhat similar to the male who fled” from him the week before. A primary similarity
appeared to be that McCarthy, just like the male who fled the week prior, was carrying a
backpack. The male from the week p rior, who looked to be about 16 to 18 years old to
Deputy Sprout, had dropped the backpack while fleeing, and the backpack was placed in
police custody. A search of the backpack revealed marijuana.

3
Deputy Sprout approached McCarthy on foot, while Officer Bachelder waited for a
moment and then drove his squad car across the parking lot to meet them , in case “it was
the same person [who fled] and they decided to run again.” Deputy Sprout asked to speak
with McCarthy, and McCarthy agreed. The deputy asked him for identification, and
McCarthy gave him his state-issued identification card. McCarthy told Deputy Sprout that
he had just gotten off work and was walking towards a vending machine to buy a beverage
because h e was thirsty. Deputy Sprout took McCarthy’s identification to Officer
Bachelder’s squad car to run a check, while Officer Bachelder stayed near McCarthy.
Deputy Sprout discovered that McCarthy had a warrant for his arrest.
Deputy Sprout placed McCarthy under arrest and searched him. Inside McCarthy’s
backpack, officers found a glass vial containing a white crystalline substance that field
tested positive for methamphetamine, 1.9 grams of a “green leafy substance ” that field
tested positive for marijuana, and a glass pipe.
The state charged McCarthy with fifth-degree possession of a controlled substance
under Minn. Stat. § 152.025, subd. 2(1) (2018), possession of a small amount of marijuana
under Minn. Stat. § 152.027, subd. 4(a) (2018), and possession of drug paraphernalia under
Minn. Stat. § 152.092(a) (2018).
McCarthy filed a motion to suppress all e vidence obtained from the stop. The
district court held a contested omnibus hearing in October 2018. Both parties submitted
briefs following th e hearing. The state argued that no seizure occurred and the district
court should therefore deny McCarthy’s motion to suppress. In response to the state’s sole
argument that there was no seizure, the district court ordered the state to submit an informal

4
brief addressing the following questions: “First, may the Court consider the application of
the attenuation doctrine if the State does not raise this issue as part of regular arguments or
submissions?” and “Second, if the answer to the first question is yes, does the attenuation
doctrine preclude suppression of the fruits of the unlawful stop of Defendant?”
Following brief submissions by both the state and McCarthy, the district court
issued an order denying McCarthy’s motion to suppress in part. The district court granted
McCarthy’s motion to suppress the statements he made to officers prior to his arrest, but
denied his motion to suppress the physical evidence derived from the search of his person.
A stipulated facts trial was held in December 2018. See Minn. R. Crim. P. 26.01,
subd. 4. The district court found McCarthy guilty of fifth-degree possession of a controlled
substance and possession of drug paraphernalia. He was later sentenced to 13 months in
prison, stayed for five years. McCarthy appeals.
D E C I S I O N
I. The district court did not fail to be impartial by ordering the state to file
supplemental briefing on an issue not raised by either party.

McCarthy argues that his conviction must be reversed because the district court
failed to be impartial by ordering the state to file a supplemental brief on the attenuation
doctrine when neither party raised the issue to the district court.
A. The district court judge was impartial.
Whether a district court deprived a party of the r ight to an impartial judge is a
constitutional question that we review de novo. State v. Dorsey , 701 N.W.2d 238, 249
(Minn. 2005). “Although the right to a trial before an impartial judge is not specifically

5
enumerated in the Constitution, this principle has long been recognized by the United
States Supreme Court.” Id. Judges must “avoid the appearance of impropriety and should
act to assure that parties have no reason to think their case is not being fairly judged” in
order to maintain public trust in the judiciary. Pederson v. State, 649 N.W.2d 161, 164 –
65 (Minn. 2002). “A judge’s conduct must be fair to both sides, and a judge should refrain
from remarks which might injure either of the parties to the litigation.” Dorsey, 701
N.W.2d at 250 (quotations omitted).
McCarthy does not cite to any caselaw regarding the district court’s authority to
order supplemental briefing on an issue not raised by the parties. Rather, McCarthy argues
that this case is similar to Dorsey, a case in which the supreme court granted a new trial
because the district court judge failed to be impartial.
In State v. Dorsey, the district court questioned the veracity of a factual statement
made by Dorsey’s key witness, investigated the fact independently, and revealed the results
of the investigation in open court. Dorsey, 701 N.W.2d at 249. The supreme court ruled
that the district court dep rived Dorsey of the right to an impartial judge and fact finder
because: (1) the judge’s comments indicated that she did not believe the testimony of the
witness based on facts not in evidence, and (2) the judge independently investigated a fact
not in the record. Id. at 250. Similarly, McCarthy asserts that the district court “direct[ed]
the State to make an argument she felt would be more persuasive than the one it had already
made,” giving the state “the opportunity to prevail on a dispositive motion i t would
otherwise have lost.”

6
But this case is easily distinguishable from Dorsey. Most importantly, the nature of
the district court’s conduct in these cases is inherently different, and the conduct in Dorsey
naturally lends itself to partiality. In Dorsey, the district court made findings of fact based
on evidence not in the record and instead based its findings on facts investigated by court
staff upon her request. Id. at 243. The district court disregarded its duty “to make factual
determinations solely on the basis of evidence in the record.” Id. at 250; see also Johnson
v. Hillstrom, 33 N.W. 547, 548 (Minn. 1887) (providing that the finder of fact must only
rely upon facts in evidence). Instead, t he district court judge investigated those fact s,
violating her duty to be a n impartial arbiter, and stepped into the role of “an investigator
for the prosecution.” Dorsey, 701 N.W.2d at 250.
In this case, the district court requested supplemental briefing on a legal issue, not
a factual dispute. The district court did not make factual findings based on evidence not in
the record and did not play the role of an investigator for the state. Instead, t he district
court recognized its “duty to apply the law accurately and [its] duty to the fair and orderly
administration of justice” when it ordered supplemental briefing. Additionally, the judge
specifically requested that the parties address whether or not the district court had authority
to consider a legal matter not raised by the parties. Based on these differences, Dorsey
does not support McCarthy’s argument that the district court judge was partial.
B. The district court had authority to address a legal issue not raised by the parties.
The state argues that the district court judge was impartial because the district
court’s conduct in ordering suppleme ntal briefing was proper. The state first cites to the
authority of appellate courts to address and decide an issue not raised below. See McKenzie

7
v. State, 872 N.W.2d 865, 872 (Minn. 2015) (noting that an appellate court may decide an
issue not determined by the district court under certain circumstances) . Relying on Minn.
R. Crim. P. 11.02 regarding omnibus hearings, the state then argues that the district court
was required to address all issues at the hearing, even those not raised by the parties, in
order to “promote a fair and expeditious trial.” Minn. R. Crim. P. 11.02 cmt.
While appellate courts may order supplemental briefing on an issue not raised
below, see, e.g., State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004), neither this court
nor the supreme court has specifically addressed whether a district court may order
supplemental briefing on a matter not raised by the parties. Despite this, the state’s
argument that the district court must address all necessary issues at the omnibus hearing is
persuasive. As the comments to the rules of criminal procedure state, “[t] he court must
also on its initiative under Rule 11.02 ascertain and hear any other issues that can be heard
and disposed of before trial and any other matters that would promote a fair and expeditious
trial.” Minn. R. Crim. P. 11.02 cmt. And in some cases, we have ordered a district court
to reopen an omnibus hearing when the district court sua sponte raised an issue but did not
give the parties an opportunity to be heard on the issue. See, e.g., State v. Menth, No. A05-
1547, 2006 WL 1984730, at *3 (Minn. App. July 18, 2006). Because the district court
considered whether an exception to the exclusionary rule was dispositive, and the parties
had an opportunity to be heard on the issue, the district court’s order for supplemental
briefing was not improper.
After receiving supplemental briefing, the district court addresse d McCarthy’s
assertion that the judge was not impartial by raising an objection based on the attenuation

8
doctrine that the state failed to make on its own. See State v. Schlienz , 774 N.W.2d 361,
367 (Minn. 2009) (providing that a judge “should not act as counsel for a party by raising
objections which the party should make”). The district court concluded that it did not make
an objection that the state should have made, but “raised a legal question about the
argument Defendant himself has made.” The dist rict court noted that, in this state and
others, district courts have applied exceptions to the exclusionary rule even when a party
has not raised that exception. See, e.g., State v. Sherman, No. A13-0080, 2014 WL 349643,
at *4 n.3 (Minn. App. Feb. 3, 2014), review denied (Minn. Apr. 15, 2014) (noting that the
district court sua sponte raised the inevitable discovery doctrine and ruled in the state’s
favor).
Other states have addressed the issue of whether a district court may sua sponte raise
the inevitable discovery doctrine. See Guthrie v. Weber, 767 N.W.2d 539, 547 (S.D. 2009)
(reviewing other jurisdictions). Although the attenuation doctrine is a separate exception
to the exclusionary rule, it is one of the three exceptions that involves “the cau sal
relationship between the unconstitutional act and the discovery of evidence.” Utah v.
Strieff, 136 S. Ct. 2056, 2061 (2016) ( identifying the three doctrines: independent source,
inevitable discovery, and attenuation). Some courts have held that a cou rt’s sua sponte
ruling is proper when it appears that no additional evidence could be offered to defeat the
theory of an exception . See People v. Clark , 857 P.2d 1099, 1125 –26 ( Cal. 1993),
disapproved on other grounds , People v. Doolin , 198 P.3d 11 ( Cal. 2009); State v.
Dickinson, 184 P.3d 305, 309–10 (Mont. 2008). Other jurisdictions have held that a court
may sua sponte raise an issue only when both parties are given an opportunity to be heard

9
on the issue.1 United States v. Sinkler, 267 Fed. Appx. 171, 174 (3d Cir. 2008); People v.
Hicks, 539 N.E.2d 756, 762 (Ill. App. Ct. 1989); State v. Badgett, 512 A.2d 160, 171 n.10
(Conn. 1986).
In this case, the district court concluded that it had discretion to raise the attenuation
doctrine and gave the parties an opportunity to address the issue before making its ruling.
The district court’s conduct in ordering supplemental briefing on a legal matter not raised
by the parties was proper, especially in light of the parties’ opportunity to address the issue
before the district court made its ruling. Therefore, the district court did not violate
McCarthy’s right to an impartial judge.
II. The district court err ed by failing to suppress the physical evidence found
as a result of the illegal stop.

McCarthy argues that the district court erred by applying the attenuation doctrine to
his case, thereby admitting the physical evidence found as a result of the search of his
backpack incident to his arrest. The state no longer argues that the stop was legal, but
asserts that the district court properly applied the attenuation doctrine to discovery of
evidence as a result of the illegal stop. “When reviewing a district court’s pretrial order on
a motion to suppress evidence, we review the district court’s factual findin gs under a
clearly erroneous standard and the district court’s legal determinations de novo.” State v.
Diede, 795 N.W.2d 836, 849 (Minn. 2011).

1 The Minnesota Supreme Court has applied a similar standard when a district court sua
sponte raises the limitation periods in Minn. Stat. § 590.01, subd. 4(a) and (c). Weitzel v.
State, 883 N.W.2d 553, 560 (Minn. 2016) (“Before ruling on the issue, however, the court
must give notice to the parties and afford them the opportunity to be heard.”).

10
The district court concluded that the present case was factually similar to the United
States Supreme Court’ s decision in Strieff.2 In Strieff, police received an anonymous tip
that there was drug activity at a particular residence. 136 S. Ct. at 2059. For about a week,
an officer conducted intermittent surveillance of the residence and observed visitors to the
home leaving minutes after arriving. Id. One day, the officer observed Strieff leaving the
home, detained him, and asked for his identification. Id. at 2060. The officer discovered
that Strieff had an outstanding warrant f or a traffic violation and arrested him. Id. When
the officer searched Strieff incident to his arrest, he found a baggie of methamphetamine
and drug paraphernalia on his person . Id. The state charged Strieff with possession of
methamphetamine and drug paraphernalia. Id.

2 Since the United States Supreme Court’s decision in Strieff in 2016, at least one state
supreme court has declined to follow Strieff based on greater protections afforded by its
state constitution than the federal constitution. The Washington Supreme Court held that
the Strieff decision “clearly conflicts with our state exclusionary rule by admitting illegally
seized evidence and allowing t he State to benefit from the unconstitutional actions of its
officers.” State v. Mayfield , 434 P.3d 58, 72 (Wash. 2019). Other state courts have
distinguished Strieff in similar circumstances. The Kansas Court of Appeals has held that,
while the existen ce of an outstanding warrant should not be minimized, “it is not
controlling . . . just because it appeared to be controlling in Strieff.” State v. Manwarren,
440 P.3d 606, 617–18 (Kan. Ct. App. 2019). The Kentucky Court of Appeals noted that
the United States Supreme Court “did not intend to conflate the definition of flagrant
conduct with that of intentional conduct” in Strieff and concluded that, even when the
officers did not have bad faith or ill motive, their conduct was purposeful and flagrant.
Commonwealth v. Garrett, 585 S.W.3d 780, 797 (Ky. Ct. App. 2019). Although we need
not reach the issue of whether the Minnesota Constitution affords greater protection than
the Fourth Amendment as applied in Strieff, we note that Minnesota courts have declined
to follow United States Supreme Court decisions when there is “a sharp departure from our
traditional understanding of the protections from unreasonable seizures.” State v.
Askerooth, 681 N.W.2d 353, 362 (Minn. 2004).

11
The United States Supreme Court granted certiorari to “resolve [the] disagreement
about how the attenuation doctrine applies where an unconstitutional detention leads to the
discovery of a valid arrest warrant.” Id. The Supreme Court recognized that there are three
exceptions to the exclusionary rule that involve “the causal relationship between the
unconstitutional act and the discovery of evidence”—the independent source doctrine, the
inevitable discovery doctrine, and the attenua tion doctrine. Id. at 2061. The Supreme
Court defined the attenuation doctrine as: “ Evidence is admissible when the connection
between unconstitutional police conduct and the evidence is remote or has been interrupted
by some int ervening circumstance, so that the interest protected by the constitutional
guarantee that has been violated would not be served by suppression of the evidence
obtained.” Id. (quotation omitted).
The Supreme Court then discussed whether the attenuation doctrine applies to a case
in which the intervening circumstance relied on by the state is the “discovery of a valid,
pre-existing, and untainted arrest warrant.” Id. To make this determination, the Supreme
Court applied the three factors articulated in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254
(1975): (1) “the temporal proximity between the unconstitutional conduct and the
discovery of the evidence to determine how closely the discovery of [the] evidence
followed the unconstitutional search”; (2) “the presence of intervening circumstances”; and
(3) “the purpose and flagrancy of the official misconduct. ” Strieff, 136 S. Ct. at 2061–62
(quotations omitted).
Regarding the first factor, the Su preme Court held that the discovery of the drugs,
which occurred only minutes after the illegal stop, favored suppression. Id. at 2062. But

12
the Supreme Court held that the second factor strongly favored admission because “the
warrant was valid, it predated [the officer]’s investigation, and it was entirely unconnected
with the stop.” Id. The Supreme Court stated that “once [the officer] discovered the
warrant, he had an obligation to arrest Strieff.” Id. Regarding the third factor, the Supreme
Court held that it strongly favored admission because the totality of the circumstances
showed that the officer was at most negligent by assuming that Strieff had o nly recently
entered the home to do a drug transaction. Id. at 2063. Even though the officer’s “decision
to initiate the stop was mistaken, his conduct thereafter was lawful.” Id. For these reasons,
the Supreme Court held that the evidence was admissible because “the unlawful stop was
sufficiently attenuated by the pre-existing arrest warrant.” Id.
When applying the Brown factors to this present case, we hold that the facts are
distinguishable from those in Strieff. 3 As the Supreme Court held in Strieff, the first factor,
temporal proximity, fav ors suppression of the evidence. This factor favors suppression
“unless substantial time elapses between an unlawful act and when the evidence is
obtained.” Strieff, 136 S. Ct. at 2062 (quotation omitted). In this case, approximately two
to five minutes passed from the time Deputy Sprout first approached McCarthy to when he
learned of the arrest warrant for McCarthy, his subsequent arrest of McCarthy, and the
discovery of the drugs and the drug paraphernalia on his person. Just like in Strieff, since

3 The Brown factors are similar to the factors we often use when determining whether
evidence is the fruit of the poisonous tree. State v. Olson , 634 N.W.2 d 224, 229 (Minn.
App. 2001). The factors considered include “(1) the purpose and flagra ncy of the
misconduct; (2) the presence of intervening circumstances; (3) whether it is likely that the
evidence would have been obtained in the absence of the illegality; and (4) the temporal
proximity of the illegality and the evidence alleged to be the fruit of the illegality.” Id.

13
only minutes passed after the illegal stop and the discovery of the drugs, the short time
interval favors suppression.
The second factor, the presence of intervening circumstances, favors admitting the
evidence. In Strieff, the Supreme Court held that because : (1) the warrant was v alid, (2)
the warrant predated the officer’s investigation, and (3) the warrant was entirely unrelated
to the stop, the warrant was an intervening circumstance. Id. In this case, there is nothing
in the record to show that the warran t for McCarthy’s arrest was invalid, that the warrant
did not predate the investigation, or was in any way related to the stop. This factor favors
admitting the evidence found on McCarthy’s person.
The third factor, the purpose and flagrancy of the misconduct, supports suppression
of the evidence . In Strieff, the Supreme Court held that the officer’s misconduct was
neither purposeful nor flagrant, but simply negligent. Id. at 2063. The Supreme Court
found that the officer made two good-faith mistakes: (1) the officer did not see when Strieff
arrived and therefore did not have confirmation that he was a short -term visitor who may
have been buying drugs, and (2) the officer should have asked Strieff to speak with him,
instead of demanding him to do so. Id. The Supreme Cou rt considered these mistakes
“errors in judgment” that did not rise to the level of a purposeful or flagrant violation of
Strieff’s constitutional rights. Id.
In this case, the deputy’s misconduct was flagrant and purposeful. Deputy Sprout ,
who was armed and in uniform, approached McCarthy and asked to speak with him based
on the deputy’s belief that he looked “somewhat similar” to a young male who fled from
the officer the previous week. But, as Deputy Sprout admitted, he was 50 feet away from

14
the young male who fled and “didn’t get a good look at him” because he was wearing a
hooded sweatshirt with the hood pulled up . Despite this, because McCarthy was wearing
a backpack, the deputy “decided that [he] would like to speak to [McCarthy],” presumably
because the deputy believed McCarthy may have had drugs. Deputy Sprout therefore
stopped McCarthy based on a “mere whim, hunch, or idle curiosity.” State v. Davis, 910
N.W.2d 50, 54 (Minn. App. 2018). Exiting a suspected drug house as occurred in Strieff
provides a much stronger basis for believing someone may be participating in a crime than
wearing a backpack and somehow looking “somewhat similar” to another person who the
officer could not describe with any particularity and whose physical characteristi cs the
officer admittedly did not get the opportunity to see.
The deputy in this case was not engaged in an active investigation of a particular
residence or location like the officer in Strieff. Additionally, there was no corroborating
evidence in McCarthy’s case, unlike the week-long surveillance of the residence present in
Strieff that revealed that visitors often left shortly after arriving and were frequent enough
to raise the suspicion that the occupants of the home were dealing drugs. Id. at 2059. The
only indication to Deputy Sprout that McCarthy was suspicious was that he was walking
in the same general area as a person who fled from the deputy a week prior, who looked
“somewhat similar” to him, and who was wearing a backpack like McCarthy.
The state concedes the stop was baseless . The deputy stopped McC arthy for
wearing a backpack, b ut the young male who fled from Deputy Sprout had discarded his
backpack, and the backpack was in police custody . And once Deputy Sprout saw on his
identification card that McCarthy was nearly 26, when the person who fled was 16 to 18

15
years old, Deputy Sprout no longer had a reason to continue the investigative detention by
requiring McCarthy to wait, along with Deputy Bachelder while Deputy Sprout went to the
squad car and ran a check on McCarthy’s identification card. State v. Johnson, 645 N.W.2d
505, 509 (Minn. App. 2002) (holding that when an officer walks away with a person’s
identification card, a reasonable person would not feel free to leave a nd that person is
effectively seized). Based on this record, Deputy Sprout’s conduct was not simply
negligent, like in Strieff. His conduct was purposeful and flagrant and favors suppression
of the evidence.
Because two of the three Brown factors favor suppression, the district court erred
by admitting the evidence found on McCarthy. We reverse and remand for the district
court to vacate its pretrial motion to admit the evidence found on McCarthy’s person.
Reversed and remanded.