Lawrence Silas Kostohryz, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A20-1565

Lawrence Silas Kostohryz, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 6, 2021
Affirmed
Frisch, Judge

Polk County District Court
File No. 60-CR-18-1830

Cathryn Middlebrook, Chief Appell ate Public Defender, Andrew J. Nelson, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, First Assistant County Attorney ,
Crookston, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that
his trial counsel was ineffective for failing to move to suppress blood test results obtained
from a warrant lacking in probable cause. We affirm.
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FACTS
On September 28, 2018, at approximately 12:18 a.m., Officer Tyler Corrier stopped
appellant Lawrence Silas Kostohryz for driving wi th expired vehicle registration and
subsequently arrested Kostohryz for driving after cancel lation. Officer Corrier suspected
that Kostohryz was under the influence of illegal substances and applied for a warrant to
obtain a urine or blood sample.
The application for a search warrant detailed the following observations. Kostohryz
was stopped outside a residence “associated with drug investigat ions in the recent past .”
During the initial stop, Officer Corrier observed Kostohryz had “dilated pupils, fidgety
fingers, and had a clenched jaw,” and in the booking room, Officer Corrier “noticed that
Kostohryz was restless (pacing back and forth, could not sit still, and kept standing up and
sitting down), that his hands were fidgety (could not keep his fingers still), and observed
scabs on his arms .” Officer Corrier knew these to be indicators of narcotic use from his
training and experience. “Based on the behaviors Kostohryz displayed, [ Officer Corrier]
believed Kostohryz was under the influence of a controlled substance and called Officer
Alex Schilke (who is a certified Drug Recognition Expert) to come conduct a drug
recognition evaluation (DRE) o n Kostohryz.” Officer Schilke arrived “a short time later
to conduct a DRE evaluation.” The warrant application further specified:
Officer Schilke conducted a full DRE evaluation and came to
the conclusion that Kostohryz was under the influence of a
controlled substance, specifically a Central Nervous System
Stimulant. During the evaluation Kostohryz had a pulse that
was above the average normal range on one of the three
readings, had an elevated blood pressure (158/138 mmHG),
and had an accelerated internal clock (Kostohryz estimated the
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passage of 30 seconds in only 16 seconds) . Kostohryz
performed poorly on the Walk and Turn test (during the test
Kostohryz used his arms to balance, failed to touch heel to toe,
and took the incorrect number of steps) a nd the One Legged
Stand test (Kostohryz swayed while balancing and put his foot
down . . . while balancing on the left leg, and swayed while
balancing and used his arms to balance while balancing on the
right leg). During the finger to nose test Kostohryz failed to
touch the tip of his finger to the tip of his nose on 4 of the 6
attempts. Kostohryz had pupils that were dilated above the
average normal range in room light (6mm), and had pupils that
were slow to react to light. All of these are indicators of
somebody who is under the influence of a Central Nervous
System Stimulant.

A search warrant was issued, and Kostohryz submitted to a blood draw. Analysis
of the blood sample revealed the presence of methamphetamine and amphetamine in
Kostohryz’s blood. Kostohryz was subsequently charged with first-degree driving while
impaired (DWI) – body contains any amount of schedule I or II drugs, pursuant to Minn.
Stat. § 169A.20, subd . 1(7) (2018) ( count I), and gross misdemeanor driving after
cancellation – inimical to public safety, pursuant to Minn. Stat. § 171.24, subd. 5 (2018)
(count II).
Kostohryz waived his right to a contested omnibus hearing and demanded a speedy
trial. Prior to trial, K ostohryz pleaded guilty to count II. A jury trial was held , which
resulted in a guilty verdict on count I. Kostohryz was sentenced to 65 months in prison on
count I and a concurrent 12 month sentence on count II.
Kostohryz filed a petition for postconv iction relief wherein he requested his
conviction for DWI “be reversed, the evidence be suppressed and the charges be
dismissed” and argued his trial counsel was ineffective when he failed to challenge the
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search warrant as lacking in probable cause. 1 The postconviction court determined that
Kostohryz was not entitled to an evidentiary hearing and denied the petition, finding “there
were multiple objective indicators of impairment exhibited by [Kostohryz] which Officer
Corrier observed and set forth in the Application for Search Warrant” and that “[b]ased on
the totality of the circumstances, the Application for Search Warrant made by Officer
Corrier was sufficiently supported by probable cause.” Based on these findings, t he
postconviction court concluded that Kostohryz did not receive ineffective assistance of trial
counsel because a probable-cause challenge to the warrant “ would have been
unsuccessful.” This appeal follows.
DECISION
Kostohryz argues the postconviction court erred in finding the blood -draw warrant
was supported by probable cause and that it relied on four erroneous factual findings in
dismissing his petition. The state argues that the denial of postconviction relief was proper
“because appellant failed to meet his affirmative burden to prove that he received
constitutionally ineffective assistance of counsel.”
“A petitioner seeking postconviction relief has the burden of establishing by a fair
preponderance of the evidence that the facts warrant relief.” Erickson v. State, 725 N.W.2d
532, 534 (Minn. 2007) (quotation omitted). “If the petition and the files and records of the
proceeding conclusively show that the petitioner is entitled to no relief, a petitioner is not
entitled to an evidentiary hearing. ” Id. (quotation omitted). “We review the denial of a

1 Kostohryz filed an appeal (No. A19 -1512) prior to filing a petition for postconviction
relief but later voluntarily dismissed the appeal.
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petition for postconviction relief, including denial without a hearing, for an abuse of
discretion.” Reed v. State, 925 N.W.2d 11, 18 (Minn. 2019). “A postconviction court does
not abuse its discretion unless it has exercised its discretion in an arbitrary or capricious
manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Henderson v. State, 906 N.W.2d 501, 505 (Minn. 2018) (quotation omitted).
[W]hen we review a postconviction court’s denial of relief on
a claim of ineffective assistance of counsel, we will consider
the court’s factual findings that are supported in the record,
conduct a de novo review of the legal implication of those facts
on the ineffective assistance claim, and either affirm the court’s
decision or conclude that the court abused its discretion
because postconviction relief is warranted.

State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).
A claim for ineffective assistance of counsel requires the claimant to show
(1) counsel’s performance fell below an objective standard of reasonableness, and
(2) absent counsel’s unreasonable performance, the result of the proceeding likely would
have been different. Strickland v. Washington, 466 U.S. 668, 687, 696-97, 104 S. Ct. 2052,
2064, 2069 (1984). “We review a district court’s application of the Strickland test de novo
because it involves a mixed question of law and fact. If a claim fails to s atisfy one of the
Strickland requirements, we need not consider the other requirement.” State v. Mosley ,
895 N.W.2d 585, 591 (Minn. 2017) (citation omitted).
To succeed in a claim of ineffective assistance of counsel for failure to challenge a
warrant, Kostohryz “must show that the search warrant so patently lacked probable cause
that the failure to challenge it could only have been ineffectiveness of counsel and not trial
tactics.” State v. McLane, 346 N.W.2d 688, 690 (Minn. App. 1984). “Counsel does not
6
act unreasonably by not asserting claims that counsel could have legitimately concluded
would not prevail.” Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009).
A warrant is supported by probable cause if, on the totality of
the circumstances, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. On
review, we must determine whether there was a substantial
basis to conclude that probable cause existed. . . . Our inquiry
is limited to the information presented in the affidavit
supporting the warrant.

State v. Holland , 865 N.W.2d 666, 673 (Minn. 2015) (quotations and citations omitted).
Probable cause to believe a driver is under the influence requires only one objective
indication of impairment. State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) , review
denied (Minn. June 15, 2004). Objective indicators of impairment include dilated pupils,
anxious and fidgety behaviors, an elevated pulse, and swaying during a sobriety test. State
v. Prax, 686 N.W.2d 45, 49 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).
Here, the four corners of the search-warrant application contained attestations of
multiple indications of impairment based on the observations of two police officers, one of
whom is a certified drug recognition expert. Kostohryz argues these observations were
insufficient to constitute probable cause that he was under the influence because it was just
as likely that there were innocent reasons, such as stress and fatigue, for these symptoms.
The standard for probable cause does not require officers to rule out all possible innocent
explanations prior to applying for a search warrant. See State v. Hawkins , 622 N.W.2d
576, 580 (Minn. App. 2001) (noting “[t]he fact that there might have been an innocent
explanation for [defendant’s] conduct does not demonstrate that the officers could not
reasonably believe that [defendant] had committed a crime”).
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Kostohryz also argues that because certain indicators of narcotic use were missing,
such as erratic driving and possession of narcotics, Officer Corrier lacked probable cause
to obtain a search warrant. Kostohryz cites no legal authority in support of the proposition
that the absence of certain indicia of narcotic use negates an officer’s observation of other
objective indicators of such use. See Kier, 678 N.W.2d at 678 (stating an officer needs to
observe “only one objective indication of intoxication” to have probable cause to believe a
person is under the influence).
Kostohryz failed to meet the two -prong test set forth in Strickland because the
application for a search warrant did not “so patently lack [] probable cause that the failure
to challenge it could only have been ineffectiveness of counsel and not trial tactics.” 2
McLane, 346 N.W.2d at 690. The search-warrant application contained numerous
statements of objective indicators that Kostohryz was under the influence of narcotics, such
as pupils that were dilated and slow to react to light, fidgety fingers, a clenched jaw,
restlessness, scabs on his arms, a high pulse rate, an accelerated internal clock, a nd poor
coordination and balance. We see no error in the conclusion by the postconviction court
that a challenge to the search warrant for want of probable cause would have failed and
counsel was not ineffective for failing to assert that challenge. See Wright, 765 N.W.2d at
91 (holding failure to bring a meritless claim is not ineffective assistance of counsel).

2 Kostohryz fails to identify which of his two counsel provided ineffectiv e assistance, but
because the warrant was supported by adequate probable cause, we need not address this
issue.
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Kostohryz also argues the postconviction court made four clearly erroneous findings
in denying his petition because such findings fell outside the scope of the application for
search warrant. But even assuming that observations by the postconviction court in the
narrative of the case constitute findings, the substantive analysis by the postconviction
court in denying the petition for relief strictly relied only on the assertions set forth in the
warrant application itself. Because the postconviction court did not rely upon allegations
or facts outside of the warrant application, any claimed error is harmless. See Benson v.
Nw. Airlines, Inc., 561 N.W.2d 530, 539-40 (Minn. App. 1997), review denied (Minn. June
11, 1997) (holding that clearly erroneous findings that are not substantially prejudicial are
merely harmless error and need not be disturbed).
Affirmed.