State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1434

State of Minnesota,
Respondent,

vs.

Frankie Dylan Dircks,
Appellant.

Filed June 22, 2020
Affirmed; motion denied
Bjorkman, Jud ge

Crow Wing County District Court
File No. 18-CR-18-4587

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Bratvold, Judge .

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his theft conviction, arguing that the search of his apartment
was invalid because the warrant was issued on unlawfully obtained information. We
affirm.
FACTS
On November 2, 2018, Baxter Police Officer Timothy Carroll received an incident
report, a video recording, and a photograph from an asset-protection manager at a local
Wal-Mart. The incident report states that an unidentified man stole approximately $2,000
in merchandise, including a drone, on the mornings of October 30 and 31, 2018. The report
describes the suspect’s car, including its license-plate number . The video recording is
security footage of the suspect committing the thefts; the photograph is a still image of the
suspect taken from the security footage.
After a records search for the suspect’s car failed to find a match , Officer Carroll
obtained the assistance of Crow Wing County Sheriff’s Deputy Phil Stanley. They found
a car registered to appellant Frankie Dylan Dircks that matched the physical description of
the suspect’s car and had a license-plate number that differed by one letter.1 Officer Carroll
also found Dircks’s driver’s license photo.
The two o fficers went to Dircks’s apartment building the next day , observing his
car in the parking lot . Dircks answered the door to his unit and Officer Carroll

1 The license-plate number provided in the incident report ends with a “T .” Dircks’s car’s
license-plate number ends with a “Y.”

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“immediately recognized him” as the suspect from the surveillance footage. Dircks told
the officers he did not want to speak to them. The officers decided to “secure the residence”
while they obtained a search warrant and ordered Dircks out of the apartment. Dircks did
not comply and tried to shut the door. Deputy Stanley removed Dircks from the apartment
and Officer Carroll secured him in the hallway.
One officer then asked Dircks if he wanted to lock his apartment. Dircks responded
that he did and told the officer where the keys were located. Deputy Stanley entered the
apartment. He could not quickly find the items Dircks requested, so Officer Carroll went
in to assist and saw a drone on an open shelf that was the same brand as the one stolen from
Wal-Mart. The officers eventually retrieved the items that Dircks requested. They then
placed Dircks into the squad car and searched a community trash bin, where they found
Wal-Mart bags and an empty box for a drone of the same brand that was reported stolen.
The same day, Officer Carroll applied for a search warrant. The warrant applicatio n
describes the above events and references the drone the officers observed in Dircks’s
apartment. A district court judge issued the warrant and officers executed it that afternoon.
The officers found many of the stolen items.
Respondent State of Minnesota charged Dircks with felony the ft. Dircks moved to
suppress the evidence obtained during the search and to dismiss the charge. Among other
things, Dircks argued that the warrant is invalid because it was issued based on what Officer
Carroll saw during his unauthorized entry into the apartment. The district court held a n
evidentiary hearing, during which Officer Carroll testified to the above facts . The district

4
court also received into evidence Officer Carroll’s dash-cam footage,2 which contained an
audio recording of the officers’ interactions with Dircks at the door of his apartment. The
district court denied Dirck s’s motion. The court found, among other facts, that Dircks
asked Officer Carroll to enter his apartment at the time of the arrest to retrieve his personal
items.
A two-day jury tr ial took place in May 2019. The state presented testimony from
five witnesses, including Wal -Mart’s asset -protection manager and Officer Carroll. The
jury found Dircks guilty and the district court sentenced him to 21 months’ imprisonment.
Dircks appeals.
D E C I S I O N
I. Dircks’s motion to strike fails because the challenged document was filed with
and cited by the district court.
The appellate record consists of the “documents filed in the trial court, the exhib its,
and the transcript of the proceedings, if any.” Minn. R. Civ. App. P. 110.01. “An appellate
court may not base its decision on matters outside the record on appeal . . . .” Thiele v.
Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). We may strike documents submitted by the
parties that are outside the appellate record. Fabio v. Bellomo , 489 N.W.2d 241, 246
(Minn. App. 1992), aff’d on other grounds, 504 N.W.2d 758 (Minn. 1993).
Dircks moves to strike Wal-Mart’s incident report from the state’s addendum along
with all references to it in the state’s brief, arguing that it is not part of the district court

2 Officer Carroll wore a body microphone that was synced with the dash camera in his
squad car.

5
record. This argument is unavailing. The incident report was part of a packet of exhibits
received without objection at the omnibus hearing, and the district court cited and relied
on the report in its suppression order. Accordingly, th e incident report is part of the record
before this court. Dircks’s motion to strike is denied.
II. Officer Carroll’s observation of the drone in Dircks’s apartment was properly
included in the warrant applicat ion because he was lawfully present in the
apartment when he saw the drone in plain view.
Dircks argues that the evidence obtained during the warrantless search of his home
should have been suppressed because (1) the officers’ entry into his apartment at t he time
of his arrest was unlawful and (2) there was no probable cause to issue the search warrant
without the information the officers gained during the unlawful entry.
We note at the outset that the district court did not expressly decide the first issue in
its suppression order. We generally do not consider matters that were not decided by the
district court. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996). But we may do so
if it would not unfairly surprise a party to the appeal. Id. That is the situation here. Dircks
moved the district court to suppress “all evidence obtained as a result of the illegal entry
into [his] home.” The court did not expressly decide that issue, but it made a relevant
factual determination that Dircks aske d the officers to enter his apartment to retrieve his
keys and other personal items. And the district court did not exclude Officer Carroll’s
observation of the drone in Dircks’s apartment from its probable -cause analysis. Notably,
the state does not challenge our ability to review the validity of the officers ’ entry into the
apartment and both parties briefed the issue. On this record, we will address the issue.

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When reviewing a suppression order, we examine the district court’s factual
findings for clear error, State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009), and defer to
the district court’s credibility determinations, State v. Dickerson , 481 N.W.2d 840, 843
(Minn. 1992). But w e review the court’s l egal determinations de novo. Ortega, 770
N.W.2d at 149.
The United States and Minnesota Constitutions protect against “unreasonab le
searches and seizures” and provide that search warrants may be issued only upon a showing
of 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 probability that contraband or
evidence of a crime will be found.’” State v. Yarbrough , 841 N.W.2d 619, 622 (Minn.
2014) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
Evidence obtained as a result of an unreasonable search may not be considered in
determining probable cause and must be excluded from warrant applications. See State v.
Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996).
Dircks contends t hat Officer Carroll’s entry into his apartment at the time of his
arrest was unlawful because he did not consent and there were no exigent circumstances .
The state does not cite either of these exceptions to the warrant requirement, instead
arguing that the entry into the apartment was justified and the officer’s observation of the
drone inside the apartment was properly included in the warrant application under State v.
Jenkins, 782 N.W.2d 211 (Minn. 2010) . The state’s argument is persuasive.
The “ plain view doctrine” provides that no Fourth Amendment violation occurs
where a police officer sees or seizes “what clearly is incriminating evidence or contraband

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when it is discovered in a place where the officer has a right to be.” State v. Griffin, 336
N.W.2d 519, 522 (Minn. 1983) (quotation omitted). Jenkins applied the plain view
doctrine in the context of an arrest in the defendant’s home. Officers arrested Jenkins in
his home on a n outstanding warrant. Jenkins, 782 N.W.2d at 223. Before he was taken
away, Jenkins asked the arresting officers if he could enter his bedroom to retrieve a coat
and shoes. Id. The officers accompanied him, and saw cell phones and a gun in plain view.
Id. Jenkins argued that references to these items should have been excl uded from the
subsequent search-warrant application because the officers “were not lawfully in his room
when those items were first discovered.” Id. at 222. The district court found that Jenkins
asked for his personal items and, “based on that request[,] the officers were lawfully in
Jenkins’ room when they observed the cell phones and gun ,” which were “ in plain sight. ”
Id. at 223. Our supreme court discerned no clear error in the district court’s factual findin gs
and held that “an officer may lawfully accompany an arrestee into his room after an arrest
outside the room in order for the arrestee to retrieve items such as a coat and shoes.” Id.
(citing Griffin, 336 N.W.2d at 523 -24).
We see no meaningful difference between Jenkins and this case. The district court
found that (1) Dircks asked Deputy Stanley “to get his keys, phone, and cigarettes to take
with him”; (2) Deputy Stanley could not immediately locate those items and Officer Carroll
went in to help find the m; and (3) Deputy Carroll “observed a drone in plain view on a
shelf in [Dircks’s ] bedroom.” The evidence supports these finding s. Officer Carroll
testified that Dircks asked for his personal items and that he “went in the apartment with
Dircks to assist with looking f or those items.” The audio recording reflects that Dircks

8
asked the officers to retrieve his shoes from the apartment, permitted the officers to enter
the apartment to find his keys, and then told the officers where the items were located. It
is undisputed that Officer Carroll saw the drone in plain view while in an area to which
Dircks directed him. To the extent Dircks argues that the dash -cam audio conflicts with
Officer Carroll’s testimony, we defer to the district court’s factual findings after weig hing
the evidence. See Dickerson, 481 N.W.2d at 843. On this record, the district court did not
clearly err in finding that Dircks asked the officers to enter his apartment to collect his
personal items and that Officer Carroll saw the drone on an open shelf while doing so .
As in Jenkins, the record establishes that Officer Carroll was lawfully present in
Dircks’s apartment when he observed the drone in plain sight . Accordingly, his
observation of the drone was properly included in the warrant application. See Jenkins,
782 N.W.2d at 223. Because we conclude that the search warrant is valid, we need not
consider Dircks’s alternative argument that a “sanitized” warrant application would not
have established probable cause.
Affirmed; motion denied .