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This opinion is nonprecedential except as provided by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
A20-0636

State of Minnesota,
Respondent,

vs.

Antonio Loren Garbow-Hanks,
Appellant.

Filed April 19, 2021
Affirmed
Hooten, Judge

Mille Lacs County District Court
File No. 48-CR-17-2623

Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defen der, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten , Presiding Judge; Johnson , Judge; and Slieter ,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this direct appeal from the judgments of conviction for unlawful possession of a
firearm and ammunition, appellant argues that the district court erred by denying his

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motion to suppress the firearm and ammunition because they were discovered after law
enforcement officers had unlawfully entered his home without a warrant. We affirm.
FACTS
Officers Walker and Pekarek of the Mille Lacs Tribal Police Department were on
patrol when they observed a vehicle exceeding the speed limit. After briefly losing sight
of the vehicle, the officers located it in the driveway of a house. After identifying the
occupants of the vehicle, officers were notified by dispatch that there was an active warrant
for the arrest of one of the occupants, E.S. E.S. initially exited the vehicle and entered the
house, but later came back outside and was placed under arrest.
While Officer Walker was placing E.S. under arrest, I.N. exited the house. I.N.
spoke with E.S. and mentioned someone named S.J. Officer Walker knew that S.J. was
I.N.’s sister. He also knew that the house belonged to I.N. and S.J.’s mothe r, Y.G., and
that there was an active warrant for the arrest of S.J. Officer Walker had encountered S.J.
at the house a year prior and suspected that she might be inside, but the officers did not
have a warrant to search the house for S.J.
Officer Walker and I.N. walked to the door of the house while speaking to each
other. I.N. denied mentioning S.J. and stated that Officer Walker must have misunderstood
her. As Officer Walker and I.N. had this conversation, Officer Cook —who had by then
arrived at the scene to assist Officers Walker and Pekarek —took up a perimeter position
behind the house to watch for any attempted escape.
From the doorway, Officer Walker spoke with Y.G., the owner of the house, who
has limited mobility and was sitting on a couch in side during this conversation. Officer

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Walker told Y.G. that there was an a ctive warrant for S.J.’s arrest and that he had reason
to believe that she was inside the house, and he asked Y.G. if S.J. was inside. Y.G. replied
that S.J. was not inside the re sidence and that she did not allow her to stay there. Officer
Walker then informed Y.G. that he “wanted [S.J.] out of the house,” and that “it is kind of
a standard thing, grab the person with the warrant and we leave.” Y.G. then told Officer
Walker in exactly which bedroom within the house S.J. could be found.
Officer Walker then entered the house to place S.J. under arrest. Officers Pekarek
and Cook also entered the residence. S.J. was located in the bedroom Y.G. had indicated
and was placed under a rrest. A man named C.H. was also in the bedroom with S.J. On
Officer Cook’s way out of the house, Y.G. and I.N. told Officer Cook that there was an
active warrant for the arrest of C.H., and they asked Officer Cook to remove him from the
house.
While inside the house, Officer Cook observed suspected narcotics and
paraphernalia in plain view. Based on this observation, the officers decided to obtain a
search warrant for the premises. The officers secured the house and cleared it of occupants.
Appellant Antonio Loren Garbow-Hanks was found in his bedroom inside the residence,
across the hall from the room in which S.J. was located. Officers discovered ammunition
and a rifle in a closet in appellant’s bedroom. Appellant had previously been adjudicated
delinquent of second-degree assault, a crime of violence, and was therefore prohibited from
possessing a firearm or ammunition.
Respondent State of Minnesota charged appellant with possession of a firearm by
an ineligible person , possession of ammunitio n or a firearm following conviction or

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delinquent adjudication of a crime of violence, and obstruction of legal process.1 Appellant
moved to dismiss the complaint and suppress all evidence of the firearm and ammunition,
arguing that the officers had made an illegal warrantless entry into the residence. A
contested omnibus hearing was held, and the district court issued an order denying
appellant’s motion. Following a jury trial, appellant was convicted on both possession
charges and sentenced to 60 months of incarceration. This appeal follows.
DECISION
“Both the United States and Minnesota Constitutions prohibit the state from
conducting unreasonable searches or seizures.” State v. Ture, 632 N.W.2d 621, 627 (Minn.
2001) (citing U.S. Const. amend. IV; Minn. Const. art. 1, § 10). Warrantless searches are
presumptively unreasonable and are only permitted if an exception to this general rule
applies. State v. Stavish , 868 N.W.2d 670, 675 (Minn. 2015). “Courts are particularly
reluctant to find exceptions to this rule in the context of a warrantless search or seizure in
a home.” State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). To justify the warrantless
search of a residence, the state must show either (1) consent or (2) probable cause to search
coupled with exigent circumstances. Id. If entry into a residence is made without a warrant
and neither exception applies, evidence obtained as a result of the entry must be suppressed.
Id.

1 This third charge for obstruction was based on the allegation that appellant had refused
to cooperate by wrestling with officers when they asked him to leave his room. Appellant
was acquitted of this charge, and it is not at issue in this appeal.

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A person with “common authority” over a residence “may consent to a search even
though the person with whom that authority is shared is absent and does not consent.”
Matter of Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn. 1992). “Consent does not have
to be verbal, but may be implied from conduct.” Othoudt, 482 N.W.2d at 222. But “[m]ere
acquiescence on a claim of police authority or submission in the face of a show of force is,
of course, not enough.” State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). Whether
valid consent to enter was given is determined from “all the relevant circumstances.” Id.
The state bears the burden of establishing that valid consent was given . See Ture, 632
N.W.2d at 627.
Here, appellant made a pre-trial motion to suppress all evidence of the firearm and
ammunition found in his bedroom , arguing that the officers’ warrantless entry into the
residence was illegal because it was not justified by consent or exigent circumstances. The
district court denied appellant’s motion. In doing so, the district court concluded that law
enforcement entry into the residence was lawful because Y.G. had impliedly consented to
that entry. Specifically, the district court concluded that “[b]y telling Officer Walker in
exactly which room he wo uld find [S.J.], rather than continuing to deny her presence,
[Y.G.] implied that it was okay for Officer Walker to enter the residence.”
“When reviewing a pretrial order on a motion to suppress evidence, we review the
district court’s factual findings u nder a clearly erroneous standard and its legal
determinations de novo.” State v. deLottinville , 890 N.W.2d 116, 119 (Minn. 2017).
Whether an individual voluntarily consented to law enforcement entry into a home is a
question of fact. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011); Othoudt, 482 N.W.2d

6
at 222. “Findings of fact are clearly erroneous if, on the entire evidence, we are left with
the definite and firm conviction that a mistake occurred.” Diede, 795 N.W.2d at 846–47.
The district court did not err in denying appellant’s motion to suppress. The record
before the district court when deciding appellant’s motion can be summarized as follows.
Officer Walker testified that he had told Y.G. that he “wanted [S.J.] out of the house, she
had an a ctive warrant, she is in the house, it is kind of a standard thing, grab the person
with the warrant and we leave,” after which Y.G. told him in exactly which bedroom within
the house S.J. could be found.
The district court admitted into evidence a probable cause packet containing a copy
of the complaint and reports from Officers Walker, Pekarek, and Cook. Officer Walker’s
report contains a version of events matching the testimony he gave at the contested
omnibus hearing. Officer Cook’s report states th at Y.G. and I.N. informed him that there
was a warrant for C.H.’s arrest and asked the officers to remove C.H. from the residence.
Finally, the district court admitted into evidence a compact disc containing footage
from Officer Cook’s body-worn camera. This footage does not depict the exchange Officer
Walker had with Y.G. before the officers entered the home. The footage does, however,
depict the exchange during which I.N. and Y.G. stated that there was an active warrant for
C.H.’s arrest and I.N. asked Officer Cook to remove him from the residence. The majority
of this footage supports the district court’s finding that “there was no verbal or non-verbal
objection to law enforcement being present” after they entered the residence. At the end
of the fo otage, both I.N. and Y.G. appear to state that Y.G. did not give consent for the

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officers to enter the residence, and I.N. appears to claim that Y.G. “told them not to come
in.” But these statements were made after appellant had already been arrested.
On this record, the district court’s finding that Y.G. implied ly consented to the
officers’ entry into her residence is not clearly erroneous.2 The fact that Y.G. told Officer
Walker exactly where in the residence S.J. could be found strongly supports the district
court’s finding of implied consent. I t is unclear what reason Y.G. could have had for
sharing this information with Officer Walker other than to facilitate —and indicate her
consent to—the officers entering the residence and executing the warrant for S.J.’s arrest.
The familiar, almost friendly manner in which Y.G. appears to interact with Officer Cook
on the body -worn camera footage, and the fact that Y.G. and I.N. requested that Officer
Cook remov e an additional person from the residence also su pport the district court’s
finding.
Appellant contends that, even if Y.G. consented to Officer Walker’s entry into the
residence, that consent was involuntarily. Appellant also argues that the officers exceeded
the scope of Y.G.’s consent by having Office rs Pekarek and Cook accompany Officer
Walker into the house to detain S.J. Appellant did not raise the argument that Y.G.’s
consent was limited to Officer Walker before the district court, and we generally will not
consider issues raised for the first tim e on appeal. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). More importantly, both of appellant’s argument s are unconvincing. It

2 As a t hreshold matter, it should be noted that Y.G. had authority to consent to law
enforcement entry into the home because she is the home’s owner. See D.A.G. , 484
N.W.2d at 789.

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appears that when Officer Walker was initially speaking with Y.G., Officer Cook had taken
up a position behind the residence, and Officer Pekarek was also outside. But as respondent
points out, nothing in the record suggests that Y.G. was aware of this fact. And the mere
fact that three uniformed officers were present at the scene does not automatically render
Y.G.’s cons ent involuntary, as voluntariness is determined from the totality of the
circumstances. Howard, 373 N.W.2d at 599. Likewise, there is nothing in the record to
support appellant’s assertion that Y.G. impliedly consented to only Officer Walker entering
the house. There is no indication that Y.G. indicated that Officer Cook or Officer Pekarek
was not allowed inside. And given the fact that the officers were attempting to execute an
arrest warrant, Y.G. may very well have anticipated that multiple officers would be
entering the home, both to ensure officer safety and to prevent S.J. from escaping.
On this record, the district court’s finding that Y.G. impliedly consented to the
officers’ entry into her home is not clearly erroneous. Accordingly, appellant has failed to
demonstrate that the district court erred in denying his motion to suppress.
Affirmed.