State of Minnesota, 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This opinion is nonprecedential except as provided by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
A21-1342

State of Minnesota,
Appellant,

vs.

Alexander James Butcher,
Respondent.

Filed March 21, 2022
Reversed and remanded
Gaïtas, Judge

Becker County District Court
File No. 03-CR-21-1028

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

Brian W. McDonald, Becker Co unty Attorney, Braden F. Sczepanski, First Assistant
County Attorney, Detroit Lakes, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

Considered and decided by Connolly, Pr esiding Judge; Reilly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this pretrial appeal from an order su ppressing evidence of a robbery that police
found in respondent Alexande r James Butcher’s apartment, appellant State of Minnesota
argues that the district court erred in conc luding that the officers’ warrantless search
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violated Butcher’s constitutional rights. Because the police reas onably believed that
Butcher had abandoned the apartment and that the landlord had authority to allow the
search, we reverse and remand.
FACTS
A convenience store in Audubon was robbed on May 25, 2021. The robber entered
the store with his head and face covered and cl aimed to have a gun. He gave the clerk a
handwritten note that said “money” and “cigs.” The clerk gave the robber over $300 from
the registers and two packs of Newport ciga rettes. A customer asked the robber, “What
[is] going on?” and the robber responded, “You know what’s going on” and threatened to
shoot him. Then, the robber fled from the store, heading north.
A week later, police spoke w ith an informant who claime d that he found a “dollar
bill wrapper” in a sink in Butcher’s apartm ent the day after the r obbery. The apartment
was just north of the convenience store.
On June 2, 2021, police contacted the land lord, who agreed to meet them at the
apartment the next day. The landlord told the o fficers that Butcher had moved out, and
that he was in the process of cleaning and repairing damage so that he could rent to a new
tenant. He gave the police permission to search the apartment for evidence, and the officers
searched without first obtaining a search warrant. Although there were still some
furnishings in the apartment, including a tattered sofa and a broken television, it was largely
empty.
During the search, the police found a blac k Sharpie marker and a notepad that
matched the note that the robber had used. They also discovered crumpled paper with
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handwriting that stated, “Be smart empty register this is not a joke.” And they found a
money wrapper, an empty Newport cigarette pack, and a pair of tan cargo pants like those
that the robber had worn.
Following the search, Butcher was charged with second-degree aggravated robbery,
Minn. Stat. § 609.245, subd. 2 (2020), and threats of violence, Minn. Stat. § 609.713, subd.
1 (2020). Butcher moved to suppress the evidence found in his apartment, arguing that the
landlord did not have authority to consent to the search and the warrantless search violated
his constitutional rights.
The district court held an evidentiary hearing on Butcher’s motion. At that hearing,
two witnesses testified for the state—the landlord and one of the investigating officers.
According to the land lord, Butcher had moved into the apartment in March 2021
and had paid rent for the mont hs of March and April. At some point, Butcher shared his
concern with the landlord that he would be unable to pay rent in May. The landlord went
to the apartment around May 1 to speak with Butcher about ob taining rental assistance.
Approximately one week later, the landlord again spoke with Butcher, who informed him
that he was moving. No date or timeline for the move was discussed, but the landlord “took
it as soon.”
The following week, possibly between May 14 and 17, the landlord returned to the
apartment and found the door open and the apar tment keys on the counter. According to
the landlord, the apartment was “trashed.” He installed a new deadbolt lock and left a note
on the door for Butcher to call him. Althou gh the landlord was unsure about the exact
timing of these events, he believed that the “note must have been on the door for a couple
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of weeks.” After another week or two, the landlord returned to start cleaning the apartment.
On June 3, an officer requested his consent fo r a search. Before he allowed the officers
into the apartment, the landl ord confirmed with the tenant below—who “could hear if
anybody had been upstairs”—that Butcher ha d not been in the apartment “up until the
point” when the police contacted him.
The investigating officer testified that, based on his investig ation, he believed
Butcher had vacated the apartment at least a week before the search. Another tenant who
lived below Butcher’s apartment reported to him that Butcher had moved out the day after
the robbery, on May 26, 2021. Additiona lly, the officer relied on the landlord’s
representations. When he spoke with the landlord in June 2021—just before the search—
the landlord said that Butcher had agreed to move out during a conversation on May 23 or
24. Moreover, the landlord told the officer that his son was actively working on the
apartment to prepare it for new tenants. The condition of the apartment also suggested to
the officer that it was vacant. When he arrived, the landlord and his son were there cleaning
and making repairs. The landlord’s note was still on the door. There were rolls of plastic
for covering the carpet, a piece of sheetrock, cleaning supplies, and a vacuum cleaner. A
door was off its hinges. Although there was still some property in the apartment, the officer
observed that it did not appear that anyone was living there.
The state submitted several photos showi ng the condition of the apartment before
the search. Those photos show (1) the note that the landlord left on the door for Butcher;
(2) a room with a hole in one wall, a couch, pillows, a folding table, and other unidentifiable
items such as bottles that the landlord deemed to be “garbag e”; (3) a closet with various
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items including some clothing, boxes, and possible bedding; (4) a bathroom with cleaning
supplies in the sink; and (5) a room with a TV, an unhinged door, a walker, and some wall
or ceiling repair supplies.
Finally, Butcher submitted a printout of a conversation that he allegedly had with
his sister on May 19, 2021 via social media. In it, the sister asked, “You lose your place?”
and he responded, “Not yet.”
The district court granted Butcher’s s uppression motion, concluding that the
landlord did not have authority to consent to the search and that the search violated the
constitutional warrant requirement. But the di strict court denied Butcher’s motion to
dismiss the charges for lack of probable cau se because there is additional independent
evidence connecting him to the robbery, including eyewitness testimony that the suspect
ran in the direction of Butcher’s apartment afte r the robbery, a jail call with an individual
who told Butcher that he recognized him in a surveillance photo of the robbery, and a note
and shoe left at the convenience store that were still awaiting forensic analysis.1
The state appeals the district court’s order suppressing the evidence.
DECISION
I. The district court’s suppression order critically impacts the prosecution.

The state “may appeal as of right” to this court “in any case, from any pretrial order.”
Minn. R. Crim P. 28.04, subd. 1(1). Wh en the state appeals from a pretrial order

1 At the oral argument before this court, th e attorney representing the state advised that
Butcher’s DNA was found on the suppressed items, but the results of DNA testing on the
items left at the gas station were still unavailable.
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suppressing evidence, th e state must “clearly and unequi vocally demonstrate[] that the
suppression ruling will have a critical impact on the outcome of the trial.” In re Welfare
of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999). “Critical impact is a threshold showing that
must be made in order for an appellate court to have jurisdiction.” State v. Gradishar, 765
N.W.2d 901, 902 (Minn. App. 2009). And “[c]ritical impact has been shown not only in
those cases where the lack of the suppressed evidence completely destroys the state’s case,
but also in those cases where the lack of the suppressed evidence significantly reduces the
likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).
Here, the state argues that the district court’s order suppressed the most compelling
evidence connecting Butcher to the robbery, substantially reducing the likelihood of a
successful prosecution. And although the dist rict court determined that “probable cause
sufficient to uphold the charges still exists,” Butcher does not challenge the state’s assertion
that the suppressed evidence would have a critical impact on the prosecution . See Kim,
398 N.W.2d at 551 (discussing State v. Lynard, 294 N.W.2d 332 (Minn. 1980), where the
Minnesota Supreme Court considered the merits of the district court’s pretrial suppression
order despite the existence of non-suppressed evidence). Because the suppressed evidence
is strong evidence of Butcher’s guilt, we concl ude that the state has satisfied the critical-
impact requirement and we address the merits of the appeal.
II. The search of the apartment did not violate the constitutional warrant
requirement because the police reasonably relied on the landlord’s apparent
authority to consent to a search.

The Fourth Amendment to the United States Cons titution and the Minnesota
Constitution protect individual s and their property from unreasonable searches by the
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government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “[T]he ultimate touchstone
of the Fourth Amendment is ‘reasonableness . . . .’” Brigham City v. Stuart, 547 U.S. 398,
403 (2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13 (1999); Katz v. United States, 389 U.S. 347, 357 (1967)). Reasonableness generally requires law enforcement to obtain
a search warrant before conducting a search to discover evidence of criminal wrongdoing.
Riley v. California, 573 U.S. 373, 382 (2014).
“[I]n the absence of a warrant, a search is reasonable only if it falls within a specific
exception to the warrant requirement.” Id. “The state bears the burden of establishing the
applicability of an exception” to the warrant requirement. State v. Licari, 659 N.W.2d 243,
250 (Minn. 2003). Any evidence obtained as a result of a warra ntless search that is not
justified by an exception to the warrant requirement must be suppressed. State v. Horst,
880 N.W.2d 24, 36 (Minn. 2016 ) (“[T]he remedy for an illegal search or seizure is
generally limited to the suppression of illegally obtained evidence.”).
The warrant exception at issue here is consent. A search “conducted pursuant to
consent” is an established excep tion to the warrant requirement. State v. Hanley , 363
N.W.2d 735, 738 (Minn. 1985). Under certain circumstances, a third party—a person with
“common authority” over a property—may also grant permission to th e police to search.
United States v. Matlock, 415 U.S. 164, 171 (1974).
Generally, a landlord cannot consent to a po lice search of a tenant’s property.
Chapman v. United States , 365 U.S. 610, 616-17 (1961). When a tenant has abandoned
the property, however, a landlord has “actua l authority” to cons ent to a search. State v.
Richards, 552 N.W.2d 197, 203 n.2 (Minn. 1996); Licari, 650 N.W.2d at 251.
8
Abandonment occurs when a defendant has “re linquished his expectation of privacy with
respect to the property.” State v. Oquist, 327 N.W.2d 587 (Minn. 1982). But even when a
landlord does not have actual authority to consent, police may rely on the landlord’s
“apparent authority” to consent under some circumstances. Licari, 650 N.W.2d at 253-54.
“Apparent authority” will justify a warrantless search when the police reasonably believed
that the landlord had authority to allow a search. See State v. Thompson, 578 N.W.2d 734,
740 (Minn. 1998) (“Where common authority does not actually exist, consent to entry is
still valid where, under an objective standard, an officer reasonably believes the third party
has authority over the premises and could give consent to en ter.”) “The issue [of actual
authority] also has relevance to the issue of apparent authority because apparent authority
exists only if the authority claimed by the third party would, if true, be sufficient to satisfy
the legal test for actual authority.” Licari, 659 N.W.2d at 250 (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990)).
Here, in granting Butcher’s suppression motion, the district court concluded that the
landlord did not have actual or apparent authority to consent to the search. Although not
raised by either party, the district court ex tensively discussed the eviction moratorium in
effect at the time of the search2 and found that the landlord did not have authority to evict
Butcher from the apartment. The district court also found that Butcher had not abandoned
the apartment. Even though the district court declined to make explicit findings regarding

2 In July 2020, the governor signed an executive order that suspended most lease
terminations and eviction actions during the COVID-19 pandemic except in limited
circumstances. See Emerg. Exec. Order No. 20-79, Modifying the Suspension of Evictions
and Writs of Recovery During the COVID-19 Peacetime Emergency (July 14, 2020).
9
the credibility of the two witnesses who testified at the evidentiary hearing, 3 it expressed
concern about the timeline that the landlord prov ided during his testimony. The district
court observed that the landlord’s testim ony suggested that th e lock was changed before
the robbery, and that it was inconsistent w ith the neighbor’s stat ement to police that
Butcher abandoned the apartment immediately after the robbery. Additionally, the district
court noted that Butcher never confirmed with the landlord when he planned to move out
and that the items in the apartment indicated that he was still livi ng there. Finally, the
district court found that Butcher told his sister approximately one week before the robbery
that he had not yet lost the apartment. Based on these findings, the district court concluded:
[U]nder a reasonable analysis, the officers knew or should have
known, the landlord likely did not have the right to evict
[Butcher], that there were contradictory statements as to when,
if ever, [Butcher] had moved out, and there was evidence of his
personal property in the apartment to suggest [Butcher] was
still living in the property. Th erefore, the Court finds that,
under a reasonable analysis, the landlord did not have apparent
authority to consent to a sear ch of the premises and the
officer’s search was in violation of [Butcher]’s constitutional
rights.

The state argues that the district court erre d as a matter of law in determining that
the landlord did not have actual or apparent authority to consent to the search. Butcher

3 The district court stated that it did “not wish to weigh the credibility of testimony at this
stage of the proceedings.” But assessing credibility is an important function of the district
court at all stages of the proceedings. State v. Miller, 659 N.W.2d 275, 279 (Minn. App.
2003) (“[T]he weight and believability of witness testimony is an issue for the district court
. . . .”), rev. denied (Minn. July 15, 2003).

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responds that the state failed to meet its burden of establishing the validity of the landlord’s
consent and therefore the district court properly suppressed the evidence.
When reviewing pretrial orders on motions to suppress evidence, appellate courts
review a district court’s legal conclusions de novo and factual findings for clear error. State
v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). Th e district court’s findings of fact are
clearly erroneous if an appellate court, after reviewing the record evidence, is “left with the
definite and firm conviction that a mistake occurred.” State v. Diede , 795 N.W.2d 836,
846-47 (Minn. 2011). “Whether actual or apparent authority to consent exists is a legal
question subject to de novo review.” State v. Dotson, 900 N.W.2d 445, 450 (Minn. App.
2017).
Applying our de novo standard of review, we conclude that the state established by
a fair preponderance of the evidence that the officers reasonably believed the landlord had
authority to consent to the search. See State v. Houston, 359 N.W.2d 336, 339 (Minn. App.
1984) (applying preponderance-of-the-evidence standard of proof to question of whether
landlord had authority to consent). We reach this conclusion for several reasons.
First, the district court’s focus on whether the landlord could lawfully evict Butcher
during the eviction moratorium was misplaced. Neither party raised this argument below
and neither party pursues it on appeal. Moreover, the record contains no information about
an eviction. The state has consistently argued that Butcher relinquished his privacy in the
apartment by abandoning it and not because he was evicted. Thus, the district court erred
in determining that the landlord’s consent was invalid because he did not have authority to
evict Butcher.
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Second, in addressing whether the police reasonably believed that the landlord had
authority to consent to the search, the district court failed to consider the information that
the police had at the ti me of the search. See Thompson, 578 N.W.2d at 740 (explaining
that the proper inquiry for apparent authorit y is whether “a suffi cient objective basis”
grounded the officer’s belief that the person c onsenting to the search had the authority to
do so); see, e.g. , Houston, 359 N.W.2d at 338 (analyzing whether the officer had a
sufficient objective basis for his belief that the landlord had auth ority to consent by
considering the landlord’s statements to the officer before the search and the officer’s other
observations and knowledge of the case). Without acknowledging the officer’s testimony
about his communications with the landlord, the district court erroneously focused on the
landlord’s recollection at the time of the evidentiary hearing about what he told the police
months earlier. And based on the landlord’s r ecollection of events that occurred months
earlier, the district court concluded that “there were contradictory statements as to when, if
ever, [Butcher] had moved out.” But an appare nt-authority analysis required the district
court to focus on what the officer knew when he received the landlord’s consent to search,
and whether that information made it objectiv ely reasonable to believe that the landlord
had authority to consent.
Third, applying that analysis, we conclude that it was objectively reasonable for the
police to conclude that the landlord had authority to consent to the search. We largely base
this conclusion on the officer’s testimony at the evidentiary hearing. The district court
made no finding that the officer was not a cred ible witness. And based on the officer’s
testimony, there was good reason for the police to believe that Butcher had abandoned the
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apartment. A neighbor told the police th at Butcher had moved out a week earlier,
immediately following the robbery. The landlord told the officer that Butcher notified him
that he was moving out on May 23 or 24. Additionally, the landlord conveyed that he was
in the process of preparing the apartment for new tenants. When the officers arrived at the
apartment, the landlord and his son were work ing there, repairing damage that Butcher
caused, throwing away garbage, and cleaning. The officers saw the note that the landlord
had left on the door for Butcher. Some property remained in the apartment, but the officer
observed that “there wasn’t much there” a nd that it appeared that the landlord was
“throwing garbage away.” The officer testified that, based on all this info rmation, he
believed Butcher was gone and the landlord had authority to consent to a search of the
apartment. Applying de novo review, we determine that the officer’s belief was objectively
reasonable.
Butcher argues that the property in the apartment was a clear indication that he was
still living there. But given all the information known to the officer s—the neighbor’s
statement, the landlord’s information, and the overall condition of the apartment when the
officers arrived—the minimal amount of property present did not make it unreasonable for
the officers to believe that Bu tcher had abandoned the proper ty and that the landlord had
taken possession of it.
The state’s evidence established by a preponderance of the evidence that the officers
reasonably believed the landlord had authority to consent to the search. Thus, the district
court erred in determining that the search violated Butcher’s constitutional rights.
Reversed and remanded.