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This opinion is nonprecedential except as provided by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
A22-1294

State of Minnesota,
Respondent,

vs.

Robert John Virnig,
Appellant.

Filed February 27, 2023
Affirmed
Larkin, Judge

Morrison County District Court
File No. 49-CR-20-540

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

Brian Middendorf, Morrison County Attorney, Michel P. Chisum, Elizabeth M.H.
Ziebarth, Assistant County Attorneys, Little Falls, Minnesota (for respondent)

Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his conviction for first-degree possession of a controlled
substance, arguing that the district court erred by denying his motion to suppress the drug
2
evidence. Appellant also challenges his sentence, arguing that the district court abused its
discretion by denying his motion for a downward dispositional departure. We affirm.
FACTS
In April 2020, respondent State of Minnesota charged appellant Robert John Virnig
with first-degree possession of a controlled substance after executing a search warrant at
his residence and recovering a large amount of methamphetamine. In obtaining the search
warrant, law enforcement relied on information provided by a “concerned citizen” who
was ultimately identified as Virnig’s estranged wife, MV. The information that MV
provided included a picture of Virnig “asleep behind a desk in his residence” near “plastic
baggies” containing a substance that “appeared to be methamphetamine.”
Virnig moved to suppress evidence recovered during the search. He argued that
MV acted as a government agent and relayed information to law enforcement in violation
of his constitutional rights. He focused his arguments on the picture that MV provided to
law enforcement. He claimed that the search warrant relied on that photograph, that the
photograph was improperly obtained, and that without it, the search warrant did not
establish probable cause for the search.
In September 2021, the district court held a hearing on Virnig’s motion to suppress.
Virnig introduced into evidence text messages between MV and law enforcement and a
transcript of an interview that law enforcement conducted with MV in February 2020.
MV testified regarding her involvement with law enforcement, including meetings
with them in July 2019 and February 2020. During those meetings, law enforcement asked
MV to conduct a “controlled buy” and offered her money and protection, but MV declined.
3
MV testified that at the February 2020 meeting, officers asked her for “pictures of pipes or
drugs or paraphernalia or anything like that,” and that she told them that she did not have
access to “that stuff” because it was locked in Virnig’s shop. Law enforcement also
requested that MV provide information regarding individuals who came and went from
Virnig’s property. MV began providing pictures and information regarding individuals
who visited Virnig’s residence.
On April 24, 2020, MV sent law enforcement a picture of Virnig asl eep at his desk
“with drugs around him.” She took the photo at around 4:00 a.m., “[i]n the shop in his
office.” She was able to gain entry because the door was unlocked. She snuck into the
shop because Virnig had previously told her to leave the house.
1 MV immediately sent the
picture to law enforcement “[b]ecause that’s what they told [her] that they wanted.” When
asked on cross-examination if law enforcement ever instructed her to “do a specific act on
a specific time,” MV responded: “They said . . . anytime [you] can get into the
back . . . take pictures of this stuff because that’s what [we] . . . need[] . . . .” MV conceded
that law enforcement did not instruct her to go to Virnig’s house on a specific day.
Investigator Casey King testified that he and another officer met with MV in July
2019. At that meeting MV was not given specific tasks to perform or promised any
payment. King testified that MV texted him pictures of individuals she believed were
involved in narcotics activity, but that he did not request those photos. King asked MV to
be a confidential informant, and she declined.

1 MV and Virnig resided at separate locations.
4
King testified that at the meeting in February 2020, an officer requested a
description of the interior of Virnig’s house and law enforcement once again asked MV to
act as a confidential informant. MV once again declined. King testified that he asked MV
to contact him if Virnig was “ever going to pick up drugs,” and one of the officers told MV
to take pictures of any drugs or paraphernalia in Virnig’s possession and to send the
pictures to King. King testified that he did not control MV’s actions, give her a timeline,
supply her with equipment, provide her with specific instructions, or ask that she contact
him before taking any actions. King testified that every few days, MV would send him a
text or photograph.
King testified that on April 24, 2020, at around 4:00 or 4:30 a.m., MV texted him
a picture of Virnig sitting in a chair in his office with methamphetamine in front of him.
MV’s text said: “Woke up and [Virnig] wasn’t in bed. I found him in the back off ice
sleeping in a chair and something else you might want to see.” King testified that he was
not aware of MV’s actions prior to the text message and that he did not direct her actions
or ask her to take the photo.
The district court denied Virnig’s motion to suppress. The charge was tried to the
district court, and the court found Virnig guilty as charged.
Virnig underwent a presentence investigation (PSI), and the PSI recommended a
105-month prison sentence under the sentencing guidelines, which called for a presumptive
sentencing range of 90 to 126 months. Virnig moved for a dispositional sentencing
departure, arguing that he was particularly amenable to probation. The district court denied
Virnig’s motion and sentenced him to serve 105 months in prison. Virnig appeals.
5
DECISION
I.
Virnig contends that the district court erred in denying his motion to suppress.
When reviewing a district court’s pretrial order on a motion to suppress evidence, we
review the district court’s factual findings for clear error and its legal determinations de
novo. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. These
constitutional protections act “as a restraint upon the activities of the government.”2 State
v. Buswell, 460 N.W.2d 614, 617 (Minn. 1990) (emphasis added). Thus, an unreasonable
search by a nongovernmental actor, a private search, will not result in evidence being
suppressed because there is no constitutional violation. Id. at 617-18.
“However, the mere fact that a private individual made the search and seized the
contraband does not always isolate his or her conduct from Fourth Amendment scrutiny.”
Id. at 618. “If, in the light of all the circumstances of the case the private individual must
be regarded as having acted as an instrument or agent of the state when conducting the
search, the search is subject to Fourth Amendment constraints.” Id. (quotations omitted).
“The determination of whether the private person acted as an agent of the state is one of
fact to be decided on a case-by- case basis after consideration of all the facts and
circumstances relative to the search.” Id.

2 Virnig does not assert that the Minnesota Constitution provides additional protections in
this case, and we therefore apply Fourth Amendment caselaw.
6
“Whether a private party should be deemed an agent or instrument of the
government for Fourth Amendment purposes necessarily turns on the degree of the
government’s participation in the private party’s activities. ” Id. (quotation omitted).
Relevant factors include “(1) whether the government knew of and acquiesced in the search
and (2) whether the search was conducted to assist law enforcement efforts or to further
the private party’s own ends.” Id.; see also State v. Jorgensen, 660 N.W.2d 127, 131
(Minn. 2003) (applying two-factor test). Ultimately, however, “the diversity in factual
settings involving private searches mandates an individual case-by-case analy sis in which
precedent plays but a small part” and the “final determination of whether the government’s
involvement was such as to transform a private search into a governmental search subject
to the constraints of the Fourth Amendment is a question of fact to be resolved by the
[district] court.” Buswell, 460 N.W.2d at 618. We will not disturb the district court’s
findings on the issue unless they are clearly erroneous. Id. “A factual determination is
clearly erroneous if it is unsupported by the record.” State v. Heath, 685 N.W.2d 48, 61
(Minn. App. 2004), rev. denied (Minn. Nov. 16, 2004).
In denying Virnig’s motion to suppress, the district court found that MV had not
acted as a government agent, reasoning that law enforcement did not know of, participate
in, or acquiesce to MV’s search of Virnig’s residence. The court found that MV “took the
picture on her own volition” and sent it to law enforcement, “who had no idea she was at
the house, or what she was doing.” Virnig challenges that finding, arguing that the
government knew of and acquiesced in the April 24 picture that MV took of Virnig and
sent to law enforcement. He notes that law enforcement maintained regular contact with
7
MV and asked her to take pictures of drugs or paraphernalia and to send those pictures to
law enforcement. He therefore asserts that officers took steps to persuade MV to conduct
searches in a particular manner and encouraged her to search for particular items.
The district court acknowledged that law enforcement had been seeking MV’s
assistance since July 2019. The district court further acknowledged that at the meeting on
February 5, 2020, law enforcement made “specific requests for information.” But the
district court found that law enforcement’s request for MV to provide pictures of drugs was
made 79 days prior to the April 24 picture in question and was “plainly antecedent” because
law enforcement did not instruct MV to conduct the search on April 24 and did not
participate in planning that search. Essentially, the district court found that law
enforcement did not influence on the particular search in question.
The record shows that on February 5, 2020, law enforcement requested that MV
take pictures of any drugs or paraphernalia in Virnig’s possession. However, given that
the police did not ask or instruct MV to take the photo on April 24, the district court did
not clearly err in finding that MV was not acting as a government agent at that time. The
district court applied the relevant law and based its decision on the specific circumstances
surrounding the search at issue.
Moreover, caselaw supports the district court’s finding. In Buswell, the Minnesota
Supreme Court found that a prior meeting between law enforcement and the private citizen
who conducted the search at issue amounted only to antecedent contact because, even
though law enforcement and the private citizen discussed arrest procedures, the meeting
did not indicate that law enforcement knew of or encouraged the specific searches in
8
question. 460 N.W.2d at 619 (“[T]he record [is] devoid of evidence that law enforcement
officials were aware of or encouraged t he specific searches in question.”) (emphasis
added)).
In sum, given the record evidence that law enforcement was not involved in the
specific search at issue here, the district court did not clearly err in finding that MV was
not acting as a government agent when she photographed Virnig sleeping next to
methamphetamine and sent the picture to law enforcement. “If the government does not
know of and acquiesce in the search, the search cannot be attributed to the government and
the inquiry ends.” Jorgensen, 660 N.W.2d at 131. We therefore affirm the district court’s
denial of Virnig’s motion to suppress.
II.
Virnig contends that the district court abused its discretion by denying his motion
for a downward dispositional departure because he established that he is particularly
amenable to probation.
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses and seek to “maintain uniformity, proportionality, rationality, and predictability
in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). “Consequently, departures from the
guidelines are discouraged and are intended to apply to a small number of cases.” State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016). A district court may depart from the
presumptive sentence only when there are “identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (2019).
9
When substantial and compelling circumstances exist, the district court has broad
discretion to depart, and we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This court will reverse the district court’s
refusal to depart from the presumptive sentence only in a “rare” case. Id. We will not
reverse the district court’s refusal to depart “as long as the record shows the [district] court
carefully evaluated all the testimony and information presented before making a
determination.” State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation
omitted).
When considering a dispositional departure, the district court focuses “more on the
defendant as an individual and on whether the presumptive sentence would be best for him
and for society.” State v. Heywood , 338 N.W.2d 243, 244 (Minn. 1983). A defendant’s
particular amenability to probation can justify downward dispositional departure from a
presumptive sentence. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). The requirement
of particular amenability ensures that “the defendant’s amenability to probation
distinguishes the defendant from most others and truly presents the substantial and
compelling circumstances that are necessary to justify a departure.” Id. at 309 (quotation
omitted).
Relevant factors for determining whether the defendant is particularly amenable to
probation include the defendant’s age, prior criminal record, remorse, cooperation, attitude
in court, and support of friends and family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Even if there is evidence that the defendant would be particularly amenable to probation, a
10
district court is not required to impose a downward dispositional departure. State v. Olson,
765 N.W.2d 662, 664-65 (Minn. App. 2009).
Virnig notes that at the time of sentencing he “was enrolled in a long-term treatment
program,” he “had completed six of fourteen months of that program,” and “all signs
pointed towards his successful comple tion of that program.” Virnig also notes that he
participated in choir, attended church twice weekly, took educational classes, completed
community service, and has strong family support. Virnig acknowledges that he has three
prior felony convictions, but he argues that only one of those was a drug offense, which
occurred in 2004.
The district court considered the arguments of the parties and all of the information
presented and ultimately concluded that Virnig was not particularly amenable to probation.
The district court noted that Virnig’s tenure in treatment had “been relatively brief as
compared to an extremely extensive decade’s long addiction and involvement with illicit
narcotics.” The district court discussed Virnig’s prior convictions, including a “prior first-
degree sale conviction,” and questioned whether Virnig’s succe ss in treatment would
continue “given his history.” The district court reasonably concluded that a departure was
not warranted. This is not a “rare” case in which the district court abused its discretion by
imposing a presumptive sentence. We therefore affirm Virnig’s sentence.
Affirmed.