State of Minnesota, Appellant,

This opinion will be unpublished and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
A19-1594

State of Minnesota,
Appellant,

vs.

Angela Joy Derstine,
Respondent.

Filed February 10, 2020
Reversed and remanded
Smith, John, Judge*

Clay County District Court
File No. 14-CR-19-2297

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

Brian J. Melton, Clay County Attorney, Tara B. Nagel, Assistant County Attorney,
Moorhead, Minnesota (for appellant)

Brian P. Toay, Wold Johnson P.C., Fargo, North Dakota (for respondent)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We reverse the district court’s order suppressing evidenc e and dismissing charges
against respondent, Angela Joy Derstine, because : 1) the district court erred in applying
the protections of the “Good Samaritan Law ,” Minn. Stat. § 604A.05 (2018); and 2) the
information in the search warrant established a substantial basis to suppo rt the issuing
judge’s probable cause determination. We remand for further proceedings.
FACTS
The state charged respondent Angela Joy Derstine with fifth-degree drug possession
under Minn. Stat. § 152.025, subd. 2(1) (2018). The complaint alleged that law
enforcement executed a search warrant at a mobile home (the residence) and found
Derstine and S.K. there. Law enforcement found “numerous bags of methamphetamine
packaged for sale, cash, drug paraphernalia [and] marijuana.” The total weight of the
methamphetamine, which was found in S.K.’s bedroom, was 132.8 grams. There were
eight tablets of a schedule IV controlled substance (Clonazepam) in Derstine’s purse, and
Derstine admitted to police that she had been regularly purchasing methamphetamine from
S.K. The state charged Derstine with possession of the Clonazepam.
Derstine filed a motion to suppress the fruits of the search conducted pursuant to the
warrant referenced in the complaint and to dismiss the charge against her. Derstine argued
that the circumstances described in the warrant application did not establish probable cause
to search the residence. She also argued that some information in the warrant affidavit —
specifically, information relating to an April 2019 medical call related to a drug overdose—

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should not have been included because it falls within the immunity protection outlined in
Minn. Stat. § 604A.05. Derstine maintained that if that information were properly excised
from the warrant affidavit, the affidavi t would not establish probable cause . The state
argued that it was not improper for law enforcement to use the information and that the
affidavit established probable cause to search the residence.
The warrant affidavit included information about suspected drug activity of persons
connected to the residence, and a search of garbage set out for collection near the residence
that revealed drug paraphernalia with drug residue , and the suspected drug activity of a
third person who had arranged to deliver methamphetamine to a police informant. At the
time that the person had agreed to deliver methamphetamine to the police informant, a third
person was driving a vehicle that had been seen outside the residence, but the third person
was arrested before any transaction took place.
The information that Derstine alleged to be improperly included in the warrant
affidavit concerned a previous incident at the re sidence in April 2019 when police had
responded to the residence regarding a drug overdose. The victim admitted to overdosing
on narcotics. S.K. told police that the victim uses methamphetamine daily. Police learned
that the owner of the residence allowed S.K. to live there. Police observed “in plain view
on a shelf inside the [residence] a clear plastic coin sized zipseal bag with a small white
crystal consistent with methamphetamine.” The warrant applicant did not specify whether
the substance was ever chemically tested.
The district court granted Derstine’s motion to suppress and dismiss. The di strict
court concluded that Minn. Stat. § 604A.05 precluded law enforcement from including

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information about the April 2019 incident in their search warrant affidavit. Setting aside
this information, the district court determined that the affidavit lacked information to
establish probable cause for the search , and it consequently suppressed the evidence and
dismissed the charge against Derstine.
D E C I S I O N
The state argues that the district court erred in concluding that Minn. Stat. § 604A.05
precluded law enforcement from including the information about the April 2019 overdose
in the warrant affidavit that led to the search and charges against Derstine. The state also
argues that the district court erred in determining that the warrant affidavit failed to
establish probable cause.
As a preliminary matter, in an appeal by the state of a pretrial order, this court will
reverse only if the state “demonstrates clearly and equivocally that the district court erred
in its judgment and, unless reversed , the error will have a critical impact on the outcome
of the trial.” State v. Trei , 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed
(Minn. June 22, 2001). “Dismissal of a complaint satisfies the critical impact requirement.”
Id. Because the district court suppressed the evidence that formed the basis of the charge
against Derstine and then dismissed the charge for lack of probable cause, this appeal meets
the critical impact test. See State v. Mike , 919 N.W.2d 103, 107 (Minn. App. 2018)
(indicating that the critical impact requirement was met where the district court suppressed
critical evidence and then dismissed the complaint for lack of probable cause), review
denied (Minn. Aug. 20, 2019).

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I. The district court erred in determining that the i nformation learned in the
overdose incident was improperly included in the warrant affidavit.

The state first argues that the district court erred in determining that Minn. Stat.
§ 604A.05 precluded law enforcement from using the information learned through the
April 2019 overdose incident in applying for a warrant to search the residence, and erred
in determining that the validity of the warrant should be analyzed without consideration of
the information at issue. We must interpret Minn. Stat. § 604A.05. We interpret a statute
de novo. Dupey v. State, 868 N.W.2d 36, 39 (Minn. 2015). An appellate court’s goal in
interpreting a statute is to “ascertain and effectuate the intention of the legislature.” Id.
(quoting Minn. Stat. § 645.16 (2014)). “The first step is to examine the language of the
statute to determine if it is ambiguous.” Id. “If the statutory language is unambiguous, we
must enforce the plain meaning of the statute and not explore the spirit or purpose of the
law.” Id. “But if the statutory language is ambiguous, we may look beyond th e language
of the statute to ascertain the Legislature’s intent.” Id.
At issue in this appeal are subdivisions one and four of section 604A.05:
Subdivision 1. Person seeking medical assistance;
immunity from prosecution. A person acting in good faith
who seeks medical assistance for another person who is
experiencing a drug -related overdose may not be charged or
prosecuted for the possession, sharing, or use of a controlled
substance under section 152.023, subdivision 2, clauses (4) and
(6), 152.024, or 125.025, or possession of drug paraphernalia.
A person qualifies for the immunities provided in this
subdivision only if:

(1) the evidence for the charge or prosecution
was obtained as a result of the person’s seeking
medical assistance for another person; and

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(2) the person seeks medical assistance for
another person who is in need of medical
assistance for an immediate health or safety
concern, provided that the person who seeks the
medical assistance is the first person to seek the
assistance, provi des a name and contact
information, remains on the scene until
assistance arrives or is provided, and cooperates
with the authorities.

Good faith does not include seeking medical
assistance during the course of the execution of
an arrest warrant or search warrant or a lawful
search.

. . . .

Subd. 4. Effect on other criminal prosecutions.

(a) The act of providing first aid or other medical assistance to
someone who is experiencing a drug -related overdose may be
used as a mitigating factor in a criminal prosecution for which
immunity is not provided.

(b) Nothing in this section shall:

(1) be construed to bar the admissibility of any
evidence obtained in connection with the
investigation and prosecution of other crimes or
violations committed by a person who otherwise
qualifies for limited immunity under this section;

(2) preclude prosecution of a person on the basis
of evidence obtained from an independent
source;

(3) be construed to limit, modify, or remove any
immunity from liability currentl y available to
public entities, public employees by law, or
prosecutors; or

(4) prevent probation officers from conducting
drug testing of persons on pretrial release,

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probation, furlough, supervised release, or
parole.

The parties offer competing interpretations of section 604A.05. The state contends
that the statute is unambiguous and does not preclude law enforcement from using
information learned while responding to an overdose -emergency call to obtain a search
warrant. The state also maintains that the immunity provided by section 604A.05 does not
extend to Derstine because she was not a “person seeking medical assistance,” as she was
not involved in the overdose incident. Derstine argues that because the statute provides
that the immunity prevents the person seeking medical assistance from being “charged or
prosecuted” for certain crimes, that the legislature intended to prevent law enforcement
from using information gained in an overdose -emergency call in any investigation.
We hold that the statute is unambiguous regarding the scope of immunity related to
information learned in a drug -related overdose incident . Section 604A.05 provides
immunity only to “[a] person acting in good faith who seeks medical assistance for another
person who is expe riencing a drug -related overdose.” The statute also protects only that
specific person against certain specified charges if the “evidence for the charge or
prosecution was obtained as a result of the person’s seeking medical assistance for another
person.” Minn. Stat. § 604A.05, subd. 1. Notably, the immunity protects against charges
or prosecution only for the “possession, sharing, or use of a controlled substance under
section 152.023, subdivision 2, clauses (4) and (6), 152.024, or 152.025, or possess ion of
drug paraphernalia.” Id. The statute does not afford immunity for any other crimes, and it
allows charges and prosecution—even against the person seeking medical assistance—for

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first-degree controlled-substance crime under Minn. Stat. § 152.021 (2018), second-degree
controlled-substance crime under Minn. Stat. § 152.022 (2018), and any degree of
controlled-substance sale so long as the charges or prosecution are not for “sharing” a
controlled substance. Thus, the statute grants immunity only to a specific person against
being charged or prosecuted for specific crimes—provided that the evidence supporting
the charge was obtained “as a result of” the overdose call . The statute does not prevent
law enforcement officers from investigating other crimes based on information they learn
in the overdose incident that triggers this immunity.
Derstine argues that the word “prosecution” is broad enough to include any form of
investigation and that, consequently, the statute precludes law enforcement from using the
information to obtain a search warrant aimed at discovering evidence of a crime. Thus,
she argues, law enforcement violated the statute’s grant of immunity to S.K. by seeking a
warrant to search the residence based on the suspected methamphetamine observed during
the overdose incident. We are not persuaded. The statute leaves open the possibility that
even the person entitled to immunity may be charged with a controlled-substance crime for
substances discovered during the overdose incident. Mor eover, the statute specifically
indicates that it should not “be construed to bar the admissibility of any evidence obtained
in connection with the investigation and prosecution of other crimes or violations
committed by a person who otherwise qualifies fo r limited immunity under this section .”
Minn. Stat. § 604A.05, subd. 4(b)(1) (emphasis added). Given that the legislature used the
words “investigation” and “prosecution” in the statute, we conclude that the term
“prosecuted” used in the phrase “charged or prosecuted” is not so broad as to preclude

9
officers from relying on their observations during an overdose incident in investigating
other crimes. See Dereje v. State , 837 N.W.2d 714, 720 (Minn. 2013) ( indicating that
“when different words are used in t he same context, we assume that the words have
different meanings”).
Because Minn. Stat. § 604A.05 does not preclude law enforcement from using
information learned in an overdose -related call to investigate other crimes, we conclude
that the district cour t erred when it determined that the warrant affidavit improperly
incorporated the overdose-incident information.
II. The district court erred by suppressing evidence obtained through the
execution of the warrant and by dismissing the charge against Derstine.

The state next argues that the district court erred in concluding that the warrant
affidavit did not establish probable cause . In evaluating the warrant affidavit, the district
court excised the information stemming from the overdose incident and concluded that the
remaining information was insufficient to support the issuing judge’s probable cause
determination. Because we have concluded that it was error to excise the information, we
review the warrant in its entirety to determine probable cause. Even so, Derstine maintains
that the warrant affidavit, even including the information relating to the overdose incident,
was insufficient to support probable cause.
The United States and the Minnesota Constitutions both 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. Law enforcement
generally must obtain a valid search warrant before conducting a search. State v .

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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 has been defined variously as the objective facts that under the circumstances would
cause a person of ordinary care and prudence to entertain an honest and strong suspicion
that a crime has been committed.” State v. Ward, 580 N.W.2d 67, 70 (Minn. App. 1998)
(quotations omitted). Probable cause exists where an affidavit filed with the court
demonstrates that “there is a fair 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)); see also State v. Holiday , 749 N.W.2d 833, 839 (Minn. App.
2008).
In reviewing the issuance of a warrant, appellate courts afford great deference to an
issuing judge’s probable -cause determination. State v. Rochefort , 631 N.W.2d 802, 804
(Minn. 2001). We review an issuing judge’s decision to issue a warrant “only to consider
whether the issuing judge had a substantial basis for concluding that probable cause
existed.” Id. Whether probable cause exists depends on the “totality of the circumstances.”
State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). “In reviewing the
sufficiency of an affidavit under the totality of the circumstances test, courts must be
careful not to review each component of t he affidavit in isolation.” State v. Wiley ,
366 N.W.2d 265, 268 (Minn. 1985). “Marginal or doubtful cases should be resolved by
the preference for warrants.” State v. Papadakis, 643 N.W.2d 349, 355 (Minn. App. 2002).
Here, the warrant affidavit included the following information: (1) law enforcement
suspected that the owner of the residence was supplying methamphetamine; (2) another

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person who was a “ known source for large amounts of methamphetamine” was “set to
deliver” methamphetamine to a police infor mant; (3) he was seen driving a silver vehicle
at the time that he was purportedly going to deliver the methamphetamine; (3) the same
silver vehicle was observed parked outside the residence; (4) this person was arrested after
attempting to flee in the silver vehicle and then on foot; (5) law enforcement searched five
garbage bags placed outside near the residence for regular trash collection; (6) in one of
the bags, law enforcement found methamphetamine residue on a small plastic box and on
a small plastic bag that is commonly used to package and distribute controlled substances,
tubes of marijuana vapor product, and paraphernalia used to inject controlled substances;
(7) in another bag, law enforcement found a receipt with the owner of the residence’s name
printed on it; (8) in other bags, law enforcement found items of mail addressed to S.K. at
various North Dakota addresses and an item of mail addressed to another woman at a
nearby address; (9) law enforcement had seen someone who was consistent in appear ance
with this other woman at the residence with S.K.; (10) law enforcement responded to a
drug-overdose call at the residence in which the overdose victim admitted to overdosing
on a controlled substance; and (11) while responding to the overdose call, police observed
a clear plastic bag that contained a small white crystal that was consistent with
methamphetamine.
We conclude that the affidavit is sufficient to establish a substantial basis from
which the issuing judge could find probable cause. The evidence discovered in the garbage
search and during the overdose call are particularly persuasive in establishing a substantial
basis to support probable cause. This court has stated that “[c]ontraband seized from a

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garbage search can provide an independent and substantial basis for a probable -cause
determination.” State v. McGrath, 706 N.W.2d 532, 543 (Minn. App. 2005), review denied
(Minn. Feb. 22, 2006); see also Papadakis, 643 N.W.2d at 356 (concluding that a trash can
search that uncovered cocaine resid ue and drug paraphernalia “provided an independent
and substantial basis for the district court’s probable cause determination”) ; State v.
Botelho, 638 N.W.2d 770, 777 (Minn. App. 2002) (concluding that cocaine residue and the
appellant’s personal effects found in trash “independently corroborated the officer’s
suspicion that drugs were present in the appellant’s residence”) . Thus, the
methamphetamine residue and drug paraphernalia discovered in the garbage outside the
residence is strong evidence that controlled substances would be found inside the residence.
The direct observation of suspected methamphetamine at the residence further bolsters the
inference that there was ongoing possession of methamphetamine at the residence.
Derstine argues that the connection between the residence and the drug evidence
found in the garbage is weak and that the information relating to the methamphetamine
observed during the overdose call was stale. Derstine relies on the indication that the
garbage bags were “near” t he residence (and not “at” the residence) , and that law
enforcement discovered a letter addressed to another woman at a nearby address in one of
the bags. But the warrant affidavit indicated that law enforcement also found a receipt
listing the owner of t he residence in one of the bags, law enforcement found letters
addressed to S.K. (who was known to stay at the residence) in another bag, and law
enforcement observed a person who appeared to be the other woman at the residence.
Moreover, law enforcement knew that a drug overdose had occurred at the residence; that

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the overdose victim used methamphetamine daily ; and that methamphetamine was
observed inside the residence during the overdose call. Considering the affidavit in totality,
we conclude that the issuing judge could reasonably infer that it was likely that the
methamphetamine discovered in the garbage search was connected to the residence.
We are also convinced that the information supporting the issuing judge’s probable
cause determination was not stale. “The proof must be of facts so closely related to the
time of the issue of the warrant as to justify a finding of probable cause at that time.” State
v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (quotation omitted) . “Factors relating to
staleness include whether there is any indication of ongoing criminal activity, whether the
articles sought are innocuous or incriminating, whether the property sought is easily
disposable or transferable, and whether the items sought are of enduring utility.” Id. The
overdose incident occurred six weeks before law enforcement applied for the search
warrant. If the warrant application had been based only on the overdose -incident
information, the facts may have been too stale to support a finding of probable cause. But
here, there was other information to support the warrant. Notably, the garbage search that
revealed methamphetamine residue and drug paraphernalia provided an “indication of
ongoing criminal activity” —possession of methamphetamine. The garbage sear ch
occurred only two days before the warrant was issued. The information supporting the
issuing judge’s probable cause determination was not stale.
Giving great deference to the issuing judge’s probable cause determination, we
conclude that the warrant affidavit established a substantial basis to support a finding of
probable cause. The district court erred by determining that the warrant lacked sufficient

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support, by suppressing evidence obtained as a result of the warrant, and by dismissing the
charge against Derstine. Consequently, we reverse the district court’s dismissal of the
charge and suppression of the evidence and remand for further proceedings.
Reversed and remanded.