State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2009

State of Minnesota,
Respondent,

vs.

Romeo Deville Eady,
Appellant.

Filed January 11, 2021
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Hennepin County District Court
File No. 27-CR-18-8623

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, Julie L. Nelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Florey, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from his convictions for unlawful possession of a firearm,
unlawful possession of ammunition, and various controlled-substance crimes, appellant
challenges the district court’s decision to deny his motion to suppress evidence and to enter
separate convictions for unlawful possession of a firearm and unlawful possession of

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ammunition. First, we conclude that because appellant asserts new bases to challenge the
second search warrant that he did not raise to the district court, he forfeited appellate review
of this i ssue. Second, we conclude that because the district court improperly convicted
appellant for both counts of possession, the conviction for possession of ammunition
should be vacated. We affirm in part, reverse in part, and remand for the district court t o
vacate the judgment of conviction for possession of ammunition.
FACTS
On March 22, 2018, Deputy Jeff Barsness applied for a search warrant to conduct a
canine search of the door seam of an apartment in Bloomington, Minnesota. According to
Barsness’s affidavit, the following facts justified a sea rch of the apartment’s door seam.
Barsness learned that a confidential informant (CI) had recently purchased marijuana from
appellant Romeo Deville Eady . The CI advised that Eady lives at the a partment in
question, that the CI purchased marijuana multiple times from Eady at the apartment within
the past two-to-three months, and that the CI has seen Eady in possession of firearms and
large amounts of money. Eady is a convicted felon with a history of narcotics convictions
and is prohibited from possessing firearms. Barsness also received a police reported dated
February 18, 2018, that listed Eady and his girlfriend as persons involved in a possible
domestic disturbance at the apartment. The affidavit did not identify Eady’s girlfriend by
name. Based on these facts in Barsness’s affidavit, the district court granted the search
warrant.
On March 30, 2018, Officer Heinzman executed the search warrant with the
building owner’s permission. The canine gave a positive indication of narcotics at the door

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seam of Eady’s apartment. In addition, Heinzman detected the odor of marijuana coming
from inside of the apartment. Based on this information, Barsness applied for a second
search warrant, this time to search the apartment, along with any associated storage units
and vehicles, for evidence of controlled-substance, drug-trafficking, and firearms offenses.
Barsness’s affidavit included all of the facts from the first affidavit plus the results of the
canine search, the fact that Heinzman could smell marijuana coming from the inside of the
apartment, the fact that an analyst from the United States Postal Service confirmed that
“[T.S.] is still receiving mail in [the] apartment,” and the fact that Eady posted videos on
YouTube of him associating with other people who were possessing firearms.1 The district
court granted the second search warrant.
On April 5, 2018, law enforcement officers executed the second search warrant and
recovered marijuana, a loaded firearm, a digital scale, $1,410 in cash, a pill containing
methamphetamine, and metal knuckles. Respondent State of Minnesota charged Eady with
the following six offenses: (1) unlawful possession of a firearm; (2) fourth -degree sale of
marijuana in a school zon e; (3) fifth -degree possession of marijuana; (4) third -degree
possession of methamphetamine in a school zone; (5) possession of a dangerous weapon
(metal knuckles) in a school zone; and (6) unlawful possession of ammunition.
Eady moved to suppress the results of the first search warrant, arguing that the first
search warrant application failed to establish reasonable suspicion or probable cause to

1 As noted above, the affidavit for the first search warrant did not identify Eady’s girlfriend
by name. The affidavit for the second warrant identifies T.S. as a person still receiving
mail at the apartment, but does not identify T.S. or anyone else as Eady’s girlfriend.

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justify the canine search of the apartment’s door seam . Eady also moved to suppress the
results of the second warrant, arguing that the second search warrant application relied
entirely on the results of the first search warrant. Thus, Eady claimed that the district court
should exclude from evidence all items recovered during the execution of the second search
warrant as fruit of the poisonous tree. Eady did not challenge the second sear ch warrant
on any other basis.
The district court concluded that the canine search only required reasonable,
articulable suspicion because the search occurred in a common hallway and the officers
were lawfully present with the building owner’s permission. The district court found that
reasonable, articulable suspicion existed because the CI’s first-hand observations indicated
that the criminal activity was ongoing and that Barsness corroborated the CI’s statements
associating Eady with the apartment. Eady does not challenge this ruling on appeal. The
district court denied Eady’s motions to suppress. The case proceeded to trial and the jury
found Eady guilty on all counts. The district court entered convictions on all counts except
for the lesser-included offense of fifth-degree possession of marijuana. The district court
only sentenced Eady for unlawful possession of a firearm and imposed a 60 -month
sentence. This appeal follows.
DECISION
I. Denial of Appellant’s Motion to Suppress the Second Search Warrant
Eady argues that, even assuming the validity of the first warrant, the district court
erred when it concluded that probable cause existed for the second search warrant. Because

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Eady did not raise these specific challenges before the district court, we conclude that Eady
forfeited these arguments.
“This court generally will not decide issues which were not raised before the district
court, including constitutional questi ons of criminal procedure.” Roby v. State , 547
N.W.2d 354, 357 (Minn. 1996); see also State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App.
1996) (concluding defendant forfeited challenge to probable cause determination by failing
to raise issues at omnibus hea ring). In this case, Eady raises entirely new and different
challenges to the second search warrant on appeal.
Before the district court, Eady challenged the second search warrant on a single
basis: that it relied on the results of the first search warrant, namely, the fact that the canine
alerted on the door seam of the apartment. On appeal, however, Eady now contests the
veracity of the statements included in the second search warrant affidavit and the
connection between himself and the suspected criminal activity. Specifically, Eady argues
that Barsness failed to adequately corroborate the CI’s statements , the timing of the CI’s
marijuana purchases is too vague, the statement regarding individuals possessing weapons
in YouTube videos fails to describe where or when the videos were produced, the single
reference to T.S. does not support the inference that Eady’s girlfriend still lived in the
apartment, and the statements in the second affidavit fail to sufficiently connect Eady to
the suspected criminal activity. Although Eady could have raised these asserted
deficiencies in his motion to suppress the second search warrant before t he district court,
he did not do so, arguing instead only that the second warrant derived from the first ,
“poisonous” warrant. The district court had no opportunity to consider the deficiencies

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asserted for the first time on appeal. We conclude that Eady forfeited appellate review of
the district court’s decision to deny his motion to suppress the second warrant.
II. Entry of Multiple Convictions
Relying on State v. Nowels , 941 N.W.2d 430, 442 n.8 (Minn. App. 2020), review
denied (Minn. June 16, 2020) , Eady argues that the district court erred when it entered
judgments of conviction for both unlawful possession of a firearm and unlawful possession
of ammunition because possession of a single, loaded firearm constitutes a single act. The
state agrees. Whether Minnesota Statutes section 609.04 (2018) precludes multiple
convictions, presents a legal question that we review de novo . State v. Cox, 820 N.W.2d
540, 552 (Minn. 2012).
We agree that Nowels controls our decision . Section 609.04 prohibits separate
convictions for possessin g a firearm and ammunition when both offenses arise out of a
person’s possession of a single, loaded firearm. Nowels, 941 N.W.2d at 442 n.8. Here,
Eady possessed a single, loaded firearm . The district court entered convictions on both
possession offenses, but only sentenced Eady for possessing a firearm. Pursuant to section
609.04 and Nowels, we reverse and remand for the district court to vacate the conviction
for unlawful possession of ammunition.
Affirmed in part, reversed in part, and remanded.