This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0373
State of Minnesota,
Respondent,
vs.
Joshua Jerome O’Brien,
Appellant.
Filed December 27, 2016
Affirmed
Reilly, Judge
Hennepin County District Court
File No. 27-CR-14-15523
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges his conviction of fifth-degree possession of a controlled
substance, arguing that the district court erred by denying his motion to suppress evidence
discovered during a search of his home. Because we determine that the plain-view
exception to the search warrant requirement applies, we affirm.
FACTS
The state charged appellant Joshua Jerome O’Brien with fifth-degree possession of
a controlled substance following a search of his home. Appellant moved to suppress
evidence of a firearm discovered during the search, arguing that the seizure violated the
particularity requirement of the Fourth Amendment to the United States and Minnesota
Constitutions and did not fall within the plain-view exception to the warrant requirement.1
At the suppression hearing, a Richfield police officer testified to the following events.
A confidential reliable informant reported to the police that appellant sold controlled
substances out of his home and that he possessed a firearm. Acting on this information,
the officers conducted a “trash pull” at appellant’s home and discovered evidence of
narcotics, including “tear-off” baggies used for packaging narcotics and Q-tips that field-
tested positive for methamphetamine. The following day, the officers applied for, and
received, a search warrant to enter appellant’s home to search for controlled substances,
items showing constructive possession of controlled substances, profits from the sale of
1
The discovery of the firearm with the methamphetamine triggered a mandatory 36-month
minimum commitment to the commissioner of corrections pursuant to the sentencing
enhancement provision of Minnesota Statutes section 609.11, subdivisions 5, 9 (2014)
(“[A]ny defendant convicted of an offense [, including controlled substance crimes,] in
which the defendant . . . at the time of the offense, had in possession or used, whether by
brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be
committed to the commissioner of corrections for not less than three years, nor more than
the maximum sentence provided by law.”).
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controlled substances, and data storage devices. The officer requested an unannounced
nighttime entry, reasoning that “[b]ecause of [appellant] being in the possession of a pistol
the cover of darkness will allow officers a tactical advantage which will increase officer
safety.” Despite his suspicion that appellant possessed a firearm in the home, the officer
did not include firearms in the search warrant application list of items believed to be in the
home.
Officers executed a search warrant at appellant’s home and discovered
methamphetamine, suspected steroids, and a prescription pill. During the course of the
search, an officer lifted a cushion from a couch and discovered a loaded semi-automatic
firearm. The defense cross-examined the officer about the discovery:
Q: . . . [W]hy were you looking under the couch cushion?
A: One, I believe there was a person immediately that got up
from the couch in the execution of the search warrant, so we
often look in areas where any contraband could have been
hidden by persons, and also it’s an area that narcotics could
also fit, which we were looking for in the search warrant.
Q: Okay. And in prior search warrants . . . have you recovered
contraband from couch cushions before?
A: Yes.
Q: And in prior search warrants . . . have you recovered
firearms along with narcotics?
A: Yes.
The district court subsequently denied appellant’s suppression motion on the ground
that the plain-view exception applied. Appellant waived his right to a jury trial and agreed
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to a stipulated-facts trial pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court
found appellant guilty, and this appeal follows.
DECISION
When reviewing a pretrial ruling on a motion to suppress evidence, an appellate
court “review[s] the facts to determine whether, as a matter of law, the [district] court erred
when it failed to suppress the evidence.” State v. Flowers, 734 N.W.2d 239, 247
(Minn. 2007). The district court’s factual findings are reviewed for clear error and legal
determinations are reviewed de novo. State v. Diede, 795 N.W.2d 836, 849 (Minn. 2011).
A district court’s ultimate ruling on a constitutional question involving a search or seizure
is reviewed de novo. State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007).
The United States and Minnesota Constitutions guarantee an individual’s right to be
secure against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.
art. I, § 10. Warrantless searches are presumed unreasonable unless they fall within an
exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.
507, 514 (1967); State v. Johnson, 813 N.W.2d 1, 14 (Minn. 2012). “Generally, evidence
seized in violation of the constitution must be suppressed.” State v. Jackson, 742 N.W.2d
163, 177-78 (Minn. 2007).
The issue presented in this case is whether the district court erred by determining
that evidence of the firearm was admissible under the plain-view exception to the search
warrant requirement. The plain-view exception permits a police officer to seize an object
believed to be the fruit or instrumentality of a crime without a warrant if “(1) the police are
legitimately in the position from which they view the object; (2) they have a lawful right
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of access to the object; and (3) the object’s incriminating nature is immediately apparent.”
State v. Milton, 821 N.W.2d 789, 799 (Minn. 2012). The district court determined that the
plain-view exception applied because the police officers satisfied each of the three Milton
prongs. Appellant does not challenge this determination. Instead, appellant argues that
Minnesota continues to recognize an inadvertent-discovery requirement to the plain-view
exception, which cannot be satisfied here because the officer suspected appellant had a
firearm in the home and referenced the firearm in the search warrant application.
We are not persuaded. In federal jurisprudence, the plain-view doctrine does not
require an officer’s discovery of incriminating evidence to be inadvertent. See Horton v.
California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304 (1990) (“We conclude that even
though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a
necessary condition.”); PPS, Inc. v. Faulkner Cty., Ark., 630 F.3d 1098, 1106 (8th Cir.
2011) (“Neither exigency nor inadvertence is an element of the plain view doctrine.”).
However, appellant relies on State v. Bradford for the principle that Minnesota continues
to recognize an inadvertent-discovery requirement. 618 N.W.2d 782 (Minn. 2000). In
Bradford, the supreme court stated that evidence is admissible when it is “in plain view,
there was a prior justification for an intrusion, the discovery was inadvertent, and there was
probable cause to believe that the items seized were immediately apparent evidence of
crime.” Id. at 795 (quotation omitted).
Post-Bradford cases issued by the Minnesota Supreme Court do not contemplate an
inadvertent-discovery requirement. As stated above, Milton articulated only three criteria
for the plain-view exception to the warrant requirement. 821 N.W.2d at 799. And citing
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to the three Milton factors, the Minnesota Supreme Court noted in State v. Holland that
“[u]nder the plain-view exception to the warrant requirement, police may seize an object
without a warrant if three criteria are met,” citing to the three Milton factors. 865 N.W.2d
666, 671 (Minn. 2015) (citing Milton, 821 N.W.2d at 799) (emphasis added). Neither
Milton nor Holland recognizes inadvertent-discovery as a necessary factor in Minnesota’s
plain-view analysis, 865 N.W.2d at 671; 821 N.W.2d at 799, and it is not the role of this
court to alter or modify existing law. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.
App. 1987) (noting that setting forth the principle that “the task of extending existing law
falls to the supreme court or the legislature, but it does not fall to this court”), review denied
(Minn. Dec. 18, 1987).
In sum, because inadvertent-discovery is not a required element of a plain-view
analysis under current Minnesota law, and because appellant concedes that the three Milton
factors are satisfied, we conclude that the firearm was lawfully seized under an exception
to the search warrant requirement. Thus, the district court did not err by denying
appellant’s motion to suppress evidence.2 In light of that conclusion, we do not consider
2
Even if inadvertent-discovery applied, the facts indicate that the evidence was
inadvertently discovered by the police officer because someone had recently been sitting
on the couch when the officer entered the room, the officer had recovered contraband from
couch cushions before, and it was in an area where narcotics could have been discovered.
See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038 (1971) (stating
that “extension of the original justification [for a search] is legitimate only where it is
immediately apparent to police that they have evidence before them” and they are not
engaged in a “general exploratory search from one object to another until something
incriminating at last emerges”). We likewise reject appellant’s argument that the officer
should have secured a second search warrant upon discovering the firearm. See id. at 467-
68, 91 S. Ct. at 2039 (“Where, once an otherwise lawful search is in progress, the police
inadvertently come upon a piece of evidence, it would often be a needless inconvenience,
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appellant’s argument that the particularity requirement of the Fourth Amendment
invalidated the search.3
Affirmed.
and sometimes dangerous–to the evidence or to the police themselves–to require them to
ignore it until they have obtained a warrant particularly describing it.”).
3
Appellant argues that the officer violated the particularity requirement of the Fourth
Amendment by failing to adequately describe the items to be seized. U.S. Const. amend.
IV; Minn. Const. art. I, § 10. The officer suspected that appellant owned a firearm, but
failed to include it in the search warrant application. As a result, the particularity
requirement was not satisfied with respect to the firearm. See Coolidge, 403 U.S. at 467,
91 S. Ct. at 2038-39 (requiring a search warrant to particularly describe the items to be
seized). However, because the seizure of the firearm fell within an exception to the warrant
requirement and was not unconstitutional, we affirm.
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