This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1844
State of Minnesota,
Respondent,
vs.
Kyle Anthony Compardo,
Appellant.
Filed August 18, 2014
Affirmed
Johnson, Judge
Ramsey County District Court
File No. 62-CR-11-4537
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
A Ramsey County jury found Kyle Anthony Compardo guilty of a third-degree
controlled-substance offense based on evidence that he sold heroin to a confidential
informant. Compardo argues that the district court erred by denying his pre-trial motion
to suppress evidence of an inculpatory statement that he gave to investigating police
officers. We affirm.
FACTS
In late 2010, a confidential informant who was cooperating with the Richfield
Police Department informed Officer Brian Rogge that Compardo was selling heroin. In
January 2011, Officer Rogge arranged for the informant to make a controlled buy from
Compardo. Officers attached audio-surveillance equipment to the informant, brought
him to Compardo’s apartment building, and provided him with four $20 bills after
recording their serial numbers. Officers conducted a pat-down search of the informant
before he entered the building to ensure that he was not carrying any drugs or weapons.
The informant entered Compardo’s apartment building and returned “within a couple of
minutes” with .4 grams of heroin. The informant told officers that he purchased the
heroin from Compardo. During the controlled buy, law-enforcement officers conducted
both audio and visual surveillance of the informant at all times, except when the
informant was inside the apartment building, when only audio surveillance was possible.
Two days later, after confirming that Compardo was on probation in Ramsey
County, Officer Rogge, two other police officers, and two probation agents went to
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Compardo’s apartment to conduct a probationary search. The officers informed
Compardo that the purpose of the visit was two-fold: to conduct a probationary search
and to obtain his consent to search for controlled substances. The officers read
Compardo his Miranda rights and presented him with a consent-to-search form, which
included a written Miranda warning. Compardo signed the form, and officers searched
his apartment. Officers found two of the $20 bills that had been supplied to the informant
before the controlled buy.
After the officers found the two $20 bills, Officer Rogge interviewed Compardo in
his living room. During the interview, Compardo stated that he was “involved in, you
know, dealing and hooking people with some heroin.” He stated that he usually has
between two and twelve half-grams of heroin on hand, that he normally sells the heroin
from his apartment, that he typically buys heroin for $50 per half-gram, and that he
typically sells a half-gram of heroin for “[a]round 80” dollars. He stated that the last time
he sold heroin was “a couple days” earlier.
At some point while in Compardo’s apartment, the officers had a conversation
with him in which they inquired whether he was interested in assisting the police
department as a confidential informant in other investigations. Compardo apparently
provided some information to law enforcement about drug-trafficking activity by others,
but Officer Rogge later testified that Compardo’s information “did not pan out.”
Officer Rogge’s interview of Compardo, which lasted approximately six minutes
and contained Compardo’s admission that he sold heroin, was audio-recorded. The
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officers’ conversation with Compardo about the possibility of becoming a confidential
informant was not audio-recorded.
In June 2011, the state charged Compardo with third-degree controlled-substance
crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2010). In January 2012,
Compardo moved to suppress the statement he gave to Officer Rogge on the ground that
the officers did not record the conversation concerning the possibility of Compardo
becoming a confidential informant. The district court denied the motion.
The case was tried to a jury over two days in April 2013. The jury found
Compardo guilty. The district court sentenced him to 46 months of imprisonment.
Compardo appeals.
DECISION
Compardo argues that the district court erred by denying his motion to suppress
the evidence of his self-inculpatory statement to Officer Rogge on the ground that the
officers did not make an audio-recording of all conversations between him and the
officers who were in his apartment.
Twenty years ago, in State v. Scales, 518 N.W.2d 587 (Minn. 1994), the supreme
court, exercising its “supervisory power to insure the fair administration of justice,” held
that “all custodial interrogation including any information about rights, any waiver of
those rights, and all questioning shall be electronically recorded where feasible and must
be recorded when questioning occurs at a place of detention.” Id. at 592. Since Scales,
law enforcement officers have been “legally obliged to tape record not just the so-called
‘formal statement’ by the defendant but the entire custodial interrogation, including the
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giving of the Miranda warning, the obtaining of a waiver, and that part of the
interrogation that [officers] euphemistically refer[] to as the ‘pre-interview.’” State v.
Thaggard, 527 N.W.2d 804, 808 (Minn. 1995). If a violation of the recording
requirement is “substantial,” “any statements the suspect makes in response to the
interrogation may be suppressed at trial.” Scales, 518 N.W.2d at 592. Whether a failure
to record an interrogation is a substantial violation of the Scales recording requirement is
a question of law, to which this court applies a de novo standard of review. State v.
Inman, 692 N.W.2d 76, 79 (Minn. 2005).
The state argues that there is no Scales violation in this case because Compardo
was not in custody when he spoke with officers about the possibility of becoming a
confidential informant. The state also argues, in the alternative, that if there is a Scales
violation, the violation is not substantial. The state further argues, again in the
alternative, that if there is a substantial Scales violation, the violation would be a
harmless error.
We need not address the state’s first argument concerning whether Compardo was
in custody because, given the facts in the district court record and the parties’ respective
arguments, it is clear that, even if there is a Scales violation, the violation is not
“substantial.” See State v. Buckingham, 772 N.W.2d 64, 69 (Minn. 2009) (“We need not
determine if there was a Scales violation here because, if there was, it was not
substantial.”). “Among the factors in determining the substantiality of a Scales violation
is whether the violation is prejudicial to the accused.” Inman, 692 N.W.2d at 81 (citing
Scales, 518 N.W.2d at 592 n.5; Model Code of Pre-Arraignment Procedure § 150.3(2)(a)
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(1975)). This factor promotes “‘the rationale underlying the recording requirement,’”
which is “‘to avoid factual disputes underlying an accused’s claims that the police
violated his constitutional rights.’” Id. (quoting State v. Williams, 535 N.W.2d 277, 289
(Minn. 1995)). Accordingly, a Scales violation is not substantial “[i]f it is undisputed
that the Miranda warning was administered, or that the accused waived his or her right to
remain silent” because in such a case “the lack of a recording creates no prejudice to the
accused.” Id.; see also Buckingham, 772 N.W.2d at 69; State v. Miller, 573 N.W.2d 661,
674-75 (Minn. 1998); Williams, 535 N.W.2d at 289. Other factors relevant to
substantiality include, but are not limited to, “the extent to which the violation was
willful, the extent to which the exclusion will tend to prevent future violations, [and] the
extent to which the violation is likely to have influenced the defendant’s decision to make
the statement.” Inman, 692 N.W.2d at 80 n.3.
In this case, there is no apparent prejudice to Compardo arising from the lack of a
recording of the conversation about the possibility of his becoming a confidential
informant. It is undisputed that Compardo was advised of his Miranda rights while the
officers were in his apartment. Compardo received his first Miranda warning orally
before officers obtained his consent to search his apartment. He also received a written
Miranda warning via the consent-to-search form, which he signed. Compardo received
another oral Miranda warning during Officer Rogge’s audio-recorded interview. Each
time, Compardo indicated that he understood his rights and was willing to talk to the
officers. In light of the absence of any dispute about the existence and validity of the
Miranda warnings, the partial recording was not prejudicial to Compardo. See id. at 81.
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The other factors relevant to substantiality also support the conclusion that any
Scales violation is not substantial. See id. at 80 n.3. One of the officers testified that, in
his experience, conversations with suspects about becoming confidential informants are
“absolutely not” recorded because doing so could lead to the disclosure of the
informant’s identity, which could jeopardize the informant’s safety. Compardo does not
challenge the officer’s justification for not recording that part of the conversation.
Compardo also does not identify any other factors that would support a conclusion that
any Scales violation is substantial. Thus, we conclude that any Scales violation in this
case is not substantial. In light of that conclusion, we need not consider the state’s
argument concerning harmless error.
In sum, the district court did not err by denying Compardo’s motion to suppress
evidence.
Affirmed.
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