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This opinion is nonprecedential except as provided by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
A24-0587

State of Minnesota,
Respondent,

vs.

Justin Nicholas Boggs,
Appellant.

Filed January 27, 2025
Affirmed
Connolly, Judge

Stearns County District Court
File No. 73-CR-22-10091

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges his convictions of two counts of possession of pornographic
work involving minors by a predatory offender. He argues that the district court erred in
denying his motion to suppress evidence seized pursuant to a search warrant because
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probable cause for the warrant was based on information obtained from an individual who
was acting as an agent on behalf of the State of Minnesota when that individual entered
appellant’s house and discovered items related to child pornography . Alternatively,
appellant argues that he is entitled to a Franks hearing to determine whether the warrant
affidavit included intentional or reckless misrepresentations of material fact. We affirm.
FACTS
Respondent State of Minnesota charged appellant Justin Nicholas Boggs by
amended complaint with four counts of possession of pornographic work involving minors
by a registered predatory offender. The complaint alleged that, during the execution of a
search warrant, officers of the Central Minnesota Violent Offender Task Force (“task
force”) recovered evidence in appellant’s possession that led to the charged offenses.
Appellant moved to suppress the evidence, arguing that (1) the evidence was
discovered as a result of an illegal search and seizure conducted by a paid informant acting
on behalf of respondent; and (2) the search -warrant application included intentional or
reckless misrepresentations of fact that were material to the finding of probable cause. A
contested omnibus hearing was held at which neither party presented testimony. Instead,
the parties agreed that a Franks1 hearing would be held only if appellant provided the
district court with “enough information” to request such a hearing. The parties also agreed

1 See Franks v. Delaware, 438 U.S. 154, 171 (1978) (permitting an evidentiary hearing to
challenge the validity of a search-warrant affidavit upon allegations of deliberate falsehood
or reckless disregard for the truth, accompanied by an offer of proof).
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that respondent would submit a Florence packet2 containing information relevant to the
issues before the district court.
The following information was contained in the Florence packet: investigative
reports; a search -warrant application and warrant authorizing the search of appellant’s
home; a search -warrant application and warrant to search appellant’s electronic devices
that were seized during the search of his home and related property; and a letter from the
task force related to the task force’s use of the confidential informant involved in this case.
This information established that a task force investigator used con fidential informant CI
22-33 (hereinafter “the CI”) to conduct investigations. The CI was known to task -force
investigators, as were the CI’s past felony convictions for drug-related offenses.
In June 2022, the CI agreed to work for the task force in consideration of pending
charges against the CI for fifth -degree possession of a controlled substance and soliciting
a prostitute. The CI was then paid $20 for an unsuccessful controlled buy. And in July
2022, the CI was paid approximately $400 for information leading to the arrest of two
individuals who were involved in a shooting.
In August 2022, the task force deactivated the CI after the CI was arrested on new
drug charges. But in October 2022, the task force reactivated the CI to work for

2 When a defendant moves to dismiss, the district court “will make the critical
determination based on all the information contained in the files and records as of [the
omnibus hearing], including reliable hearsay in whole or in part.” State v. Florence, 239
N.W.2d 892, 900 (Minn. 1976) (quotation omitted). The “ Florence packet” refers to the
complaint, files, and other records respondent submitted at the omnibus hearing.
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consideration relating to the new charges. The CI then assisted the task force with
methamphetamine investigations in early November 2022, which led to multiple arrests.
On November 17, 2022, the task force deactivated the CI due to another arrest and
new drug charges. Prior to this deactivation, however, the CI contacted a task force
investigator on November 11, 2022, offering information about appellant, with whom the
CI was “affiliated . . . through the sales and use o f controlled substances[,] specifically
methamphetamine.” Although the CI was never directed by the task for ce to provide
information about appellant, or paid any compensation for the information, the CI informed
the investigator that the CI went to appellant’s house to “conduct a welfare check” after a
mutual friend contacted the CI and said that the friend had n ot “heard from [appellant] in
a couple days.” According to the CI, appellant was not home, and the CI was not able to
contact him. The CI told the investigator that the CI then entered appellant’s home, where
the CI discovered items that the CI believed were related to child pornography.
The CI took photographs of items in appellant’s house that were associated with
child pornography and presented them to the investigator on November 14, 2022. The next
day, the investigator applied for, and was granted, a warrant to search appellant’s house for
“[a]ny evidence related to the sexual exploitation of children.” Although task -force
members failed to recover child pornography during execution of the search warrant,
investigators learned during the search that appellant stored items in a neighbor’s detached
garage. The neighbor subsequently consented to a search of his garage and, during the
search, investigators located a chest belonging to appellant.
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After appellant consented to a search of the chest, investigators discovered, among
other things, two computers and two cell phones. Task -force investigators were then
granted a warrant to search the electronic items found in the chest. One of the laptops
found in the chest contained child pornography.
The district court determined that the CI was not acting as an agent or instrument of
the government because “the government did not know of or acquiesce to the search”
conducted by the CI. Thus, the district court denied appellant’s suppression motion. The
district court also denied appellant’s request for a Franks hearing because appellant failed
to make a “substantial preliminary showing” that the warrant to search appellant’s house
included a false statement made knowingly and intentionally, or with r eckless disregard
for the truth.
Appellant waived his right to a jury trial and proceeded with a stipulated -facts trial
under Minn. R. Crim. P. 26.01. Respondent informed the district court that it was
submitting facts only as to the first two counts of the amended complaint and, therefore,
guilty verdicts on counts three and four were not expected. The district court subsequently
found appellant guilty of counts one and two, but not guilty of counts three and four, and
sentenced him to 102 months in prison. This appeal follows.
DECISION
I.
Appellant challenges the district court’s decision to deny his motion to suppress. In
reviewing such a challenge, 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).
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“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).
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 .” State
v. Buswell , 460 N.W.2d 614, 617 (Minn. 1990) (emphasis added). But the Fourth
Amendment does not prohibit unreasonable searches by private individuals. United States
v. Jacobsen, 466 U.S. 109, 113 (1984). The exclusionary rule, therefore, does not prohibit
the government from using evidence obtained through a private search. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
Nevertheless, “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.”
Buswell, 460 N.W.2d 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 [government]
when conducting the search, the search is subject to Fourth Amendment constraints.” Id.
(quotations omitted). “The determination of whether the priva te person acted as an agent
of the [government] 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.
“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. Relevant factors to
consider include “(1) whether the government knew of and acquiesced in the search and
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(2) whether the search was conducted to assist law enforcement efforts or to further the
private party’s own ends.” Id.; State v. Jorgensen , 660 N.W.2d 127, 131 (Minn. 20 03)
(applying two-factor test). Ultimately, however, “the diversity in factual settings involving
private searches mandates an individual case-by-case analysis in which precedent plays but
a small part,” and the “final determination of whether the governmen t’s involvement was
such as to transform a private search into a governmental searc h 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.
In this case, the district court determined that there was no evidence indicating that
law enforcement (1) “knew of or acquiesced to the search”; (2) did anything to persuade
[the] CI . . . to enter [appellant’s] home, search his items, or retrieve any evidence from his
home”; or (3) were told by the CI “in advance that [the CI] was planning on [going] into
[appellant’s] home.” The district court also determined that, although the task force
“ultimately received information on [appellant],” the CI was not directed by the task force
to provide this information, and the CI was not financially compensated for the
information. Thus, the district court concluded that appellant failed to establish the first
Buswell factor.
Appellant argues that the district court erred in denying his motion to suppress
“[b]ecause the record shows [that] the CI was an active agent of the [task force], which
acquiesced to the CI’s unlawful entry and search of [appellant’s] home.” To support his
position, appellant relies on agency law, which states that the following three elements
establish an agency relationship: “(1) consent to the agency; (2) action by the agent on
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behalf of the principal; and (3) exercise of control by the principal over the agent. ” In re
Ins. Agents’ Licenses of Kane , 473 N.W.2d 869, 873 (Minn. App. 1991) (citing A. Gay
Jenson Farms Co. v. Cargill, Inc. , 309 N.W.2d 285, 290 -91 (Minn. 1981)) , rev. denied
(Minn. Sept. 25, 1991). Appellant contends that, because these elements are satisfied, “the
CI must be considered an agent or instrument of the [government].”
We disagree. First, appellant’s argument that agency law supports a determination
that the CI was an agent of the government was never argued below and was never
considered by the district court. It is well settled that appellate courts “generally will not
decide issues which were not raised before the district court.” Roby v. State, 547 N.W.2d
354, 357 (Minn. 1996); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating
that appellate courts do not consider issues on appeal that were not p resented to, and
considered by, the district court). And parties are not allowed to change legal theories on
appeal. Thiele, 425 N.W.2d at 582. As such, this argument is not properly before us.
Second, appellant cites no legal authority for his position that agency law dictates
whether an individual is acting as an agent of the government for Fourth Amendment
purposes. Rather, the proper inquiry “turns on the degree of the government’s participation
in the private party’s activities,” and we consider “whether the government knew of and
acquiesced in the search.” Buswell, 460 N.W.2d at 618. “If the government does not know
of and acquiesce in the search, the search cannot be attributed to the g overnment and the
inquiry ends.” Jorgensen, 660 N.W.2d at 131.
Here, the record supports the district court’s determination that respondent did not
know of or acquiesce in the search. The record reflects that the CI was “affiliated with
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[appellant] through the sales and use of controlled substances[,] specifically
methamphetamine.” The record also reflects that the CI entered appellant’s house without
appellant’s consent to “conduct a welfare check” on appellant after a friend of appellant’s
contacted the CI and told the CI that the friend had not “heard from [appellant] in a couple
days.” Moreover, there is nothing in the record indicating that the task force knew in
advance that the CI was planning on entering appellant’s home, searchi ng his items, or
retrieving any evidence from appellant’s home. Nor is there anything in the recor d
indicating that the task force did anything to persuade the CI to enter appellant’s home.
Instead, a letter from the task force specifically states that the CI “was not directed” by the
task force to provide information on appellant. And the record reflects that the “CI was
compensated $0.00” for the information about appellant.
Appellant argues that respondent knew of and acquiesced to the CI’s search of
appellant’s home because he was a “paid agent of the [government]” at the time of the
search, and was never charged with burglary for his actions. But “[m]ere antecedent
contact between law enforcement and a private party is inadequate to trigger application of
the exclusionary remedy under the Fourth Amendment.” Buswell, 460 N.W.2d at 619. “It
is only when the government takes some type of initiative or steps to promote the s earch,
that a private citizen is deemed to be an agent or instrument of the government.” Id.
In this case, there is no indication that the task force took some type of initiative or
steps to prompt the CI to search appellant’s home. Instead, as noted above, the task force
specifically stated that the CI “was not directed ” by the task force to provide information
on appellant. Although the CI had not been deactivated at the time the CI searched
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appellant’s home, and had been given consideration for information related to previous
law-enforcement activities, the CI was not compensated for the information provided to
the task force related to appellant. And the fact that the CI was not charged wit h burglary
after he entered appellant’s home is not relevant to whether the task force knew of, or
acquiesced in, the search at the time of the search. Therefore, the district court did not err
in determining that respondent did not know of or acquiesce in the search.
Even if the district court erred in determining that respondent did not know of or
acquiesce in the search, appellant is entitled to relief only if he can also show that the
“search was conducted to assist law enforcement efforts or to further the private party’s
own ends.” Id. at 618. The district court determined that it need not consider this factor
because it determined that the first factor was dispositive. But the district court noted that,
even if it considered this factor, “it would find that the search was conducted to further [the
CI’s] own ends as opposed to law enforcement’s” because “there is no indication that [the
CI’s] entry into [appellant’s] residence was in any way related to his past work as an
informant—rather, [the CI] was motivated by a desire to check on [appellant].”
Appellant argues that the district court’s finding that the CI was motivated by a
desire to check on appellant is clearly erroneous because (1) “[t]here is no evidence that
the [CI and appellant] had the type of relationship that would evoke a concern for one
another’s welfare,” and (2) the fact that the CI turned over incriminating evidence to law
enforcement undercuts the CI’s claim that he was concerned about appellant’s welfare. But
appellant’s argument amounts to an impermissible request for us to re weigh the evidence.
See In re Civ. Commitment of Kenney , 963 N.W.2d 214, 221 (Minn. 2021) (stating that
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appellate courts may not “reweigh the evidence when reviewing for clear error”) ; see also
State v. Thompson , 988 N.W.2d 149, 158 (Minn. App. 2023) ( applying Kenney in
reviewing a criminal matter ), rev. denied (Minn. June 20, 2023). Moreover, e vidence
related to the extent of the relationship the CI had with appellant is unnecessary to support
the district court’s decision. The record reflects that the CI knew appellant, was asked by
a friend of appellant’s to check on appellant’s welfare, and then conducted such a welfare
check. This evidence reasonably supports the district court’s determination that the CI
conducted the search to further his own ends, and there is nothing in the record to indicate
that the search was conducted to assist law enforcement efforts. Accordingly, the district
court did not err in denying appellant’s motion to suppress because the record supports the
district court’s determination that appellant was not acting as an agent or instrument of
respondent when the CI searched appellant’s house.
II.
Appellant also challenges the district court’s denial of his request for a Franks
hearing. In reviewing such a challenge, we review for clear error the district court’s
findings on whether there was a statement or omission that was false or in reckless
disregard for the truth. State v. Andersen , 784 N.W2d 320, 327 (Minn. 2010). But we
review de novo whether the alleged misrepresentation or omission was material to the
determination of probable cause. Id.
“A search warrant is void, and the fruits of the search must be excluded, if the
application includes intentional or reckless misrepresentations of fact material to the
findings of probable cause.” State v. Moore , 438 N.W.2d 101, 105 (Minn. 1989)
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(referencing Franks, 438 U.S. at 171 -72). To challenge the truthfulness of factual
statements made in an affidavit seeking a search warrant, a defendant must show that “(1)
the affiant deliberately made a statement that was false or in reckless disregard of the truth,
and (2) the statement was material to the probable cause determination.” Andersen, 784
N.W.2d at 327 (quotations omitted) (explaining that the search warrant was valid because
the alleged misrepresentations and omissions in the application w ere not material). No
Franks hearing is necessary if there is an absence of evidence that an officer deliberately
or recklessly omitted information material to the probable-cause determination. See id.
Appellant argues that he made a substantial showing to obtain a Franks hearing
because “the statement in the application for a search warrant alleging that the CI had gone
to [appellant’s] home to do a welfare check was knowingly and intentionally false
information crafted to ensure that the requested search warrant would be issued.” The
district court rejected this argument, concluding that no “misrepresentation was made at
all.” We conclude that the district court’s determination is supported by the record.
As addressed above, the search warrant application states that the CI was asked by
a friend of appellant’s to conduct a welfare check on appellant. There is nothing in the
record indicating that this statement was false. Although the CI had previously been paid
for information provided to law enforcement related to criminal activity, there is nothing
in the record indicating that the CI had provided the task force with information about
appellant in the past. Moreover, the record reflects that the task force never directed the
CI to search appellant’s house, and there is no indication that the task force knew in
advance that the CI intended to enter appellant’s house. As such, the district court did not
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err in determining that appellant failed to make a substantial and preliminary showing that
the search-warrant application contained a false statement that was made knowingly and
intentionally, or with reckless disregard for the truth.
Moreover, appellant is unable to establish the second prong necessary to invalidate
a warrant, that the alleged false statement was “material to the probable cause
determination.” See Andersen, 784 N.W.2d at 327. As the district court found, even if the
CI falsely claimed that the CI was at appellant’s house to conduct a welfare check, appellant
“has not made a substantial preliminary showing that the purportedly false statement was
necessary to the finding of probable cause” because the CI “saw what appeared to be child
pornography at [appellant’s] home.” The finding of child pornography is unrelated to the
reason the CI was in the home. As such, omitting the reason why the CI was in the hom e
would not have impacted the probable cause to support the warrant itself. Therefore, the
district court did not err in denying appellant’s request for a Franks hearing.
Affirmed.