author: PER CURIAM.

text:
    26TH AND E.P. TRUE, L.C., an Iowa Limited Liability Company, Appellee, v. Carleton D. Beh Trust and Carleton D. Beh, Jr., Trustee, Appellees, and CITY OF WEST DES MOINES, IOWA, a Municipal Corporation, Appellant.
    No. 99-0079.
    Supreme Court of Iowa.
    Jan. 24, 2002.
    Jeffrey L. Goodman and Robert K. Du-Puy of Pingel & Templer, P.C., West Des Moines, for appellant.
    David J. Darrell and E. Ralph Walker of the Walker Law Firm, P.C., Des Moines, for appellee 26th & E.P. True.
    David A. Tank and Amy C. Churchill of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellees Beh Trust and Carleton D. Beh, Jr.
   PER CURIAM.

The buyer and seller of a parcel of real estate in West Des Moines, acting on the alleged promises of city authorities that access to a particular street would be granted, entered into a contract for the sale and purchase of the property. When the city refused access to this street, this litigation ensued. The buyer sued the seller for rescission of the contract and for damages. The seller, in turn, sued the city as a third-party defendant.

The district court severed the claims and tried the rescission claim as an equity matter. It reserved the third-party claim for later trial to a jury. That claim, against the city, has not yet been tried. All of the parties filed interlocutory appeals of the court’s rescission ruling. The buyer and seller subsequently dismissed their appeals, and only the city’s appeal remains. We now dismiss the city’s appeal as being unripe.

The only issues now before us involve the city’s claims that the court erred in (1) allowing evidence of, and making findings of fact with respect to, statements by city employees about whether the city would permit access; (2) deciding issues regarding the meaning of city ordinances; and (3) concluding the city’s witnesses were not credible. The city also inquires, as a fourth issue, whether the real estate buyer, who obtained the rescission judgment, has any remaining claims against the city.

The problem with the city’s case at this stage is one of ripeness. The city fears that the district court’s findings and conclusions in the rescission suit might be given preclusive effect in the future case against the city. The issue of whether evidence of these matters will be admissible at trial in the next phase of the bifurcated trial — the case involving the city — is not ripe at this time. We have said:

A case is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative.

State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000).

Any objection by the city to the introduction of the evidence concerning the first trial will have to await the second trial. When, if ever, the evidence from the first trial is offered in the second, the second trial will be the appropriate place to object. At this stage, the city’s issues do not constitute an actual, present controversy.

We dismiss the city’s appeal and remand for further proceedings.

APPEAL DISMISSED.


source: Caselaw Access Project

author: Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Stanley J. LEINO, an Attorney at Law of the State of Minnesota.
    No. C4-99-1827.
    Supreme Court of Minnesota.
    Jan. 25, 2002.
   ORDER

On August 7, 2000, the Director filed a petition for disciplinary action against Stanley J. Leino and on October 17, 2000, filed an amendment and supplementary petition for disciplinary action. The Honorable David E. Christensen, the referee appointed by this court, held a hearing on said petitions on November 15, 2000.

Respondent Stanley J. Leino did not attend the November 15, 2000, hearing or assert any factors in mitigation of the misconduct alleged. The referee found that respondent continued to practice law after his license to practice had been suspended, made false statements to the courts, clients and opposing counsel regarding his licensure status, adopted and used fictional identities to facilitate his ongoing practice, made false statements to this court in an affidavit filed under Rule 26, Rules on Lawyers Professional Responsibility (RLPR), made false statements in an application for admission to the South Dakota Bar, and failed to cooperate in the disciplinary proceedings. The referee found that this misconduct violated Minn. R. Prof. Conduct 3.3(a)(1) and (4), 3.4(c), 4.1, 5.5, 8.1(a)(3), and 8.4(b), (c), and (d), and Rule 25, RLPR, and recommended disbarment. The matter was thereupon set for briefing and oral argument.

On June 6, 2001, pursuant to a stipulation between the Director and respondent, this court ordered a stay of the disciplinary proceedings and remanded for proceedings before the referee for the purpose of taking further evidence regarding whether respondent’s mental health and respondent’s mental illness, if any, ought to be considered a mitigating circumstance sufficient to recommend a sanction less severe than disbarment. Thereafter, a licensed psychologist evaluated respondent and the Director was afforded the opportunity to review the psychologist’s written reports and consult with the psychologist regarding respondent. The Director accepts that the unique circumstances of this case justify some consideration of respondent’s psychological disability as a mitigating circumstance.

Respondent and the Director have entered into a stipulation in which respondent waives his rights under the June 6, 2001, order and Rule 14, RLPR. The parties jointly recommend that the appropriate discipline is a two-year suspension to run consecutively to the minimum three-year suspension ordered by this court in In re Disciplinary Action Against Leino, 609 N.W.2d 616 (Minn.2000), with no waiver of the reinstatement hearing provided for in Rule 18, RLPR, and no right to petition for reinstatement prior to March 2, 2005. The parties further recommend that reinstatement be conditioned upon: (1) payment of costs in the amount of $900 plus interest and disbursements in the amount of $663.68, plus interest under Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR, (3) successful completion of the professional responsibility examination under Rule 18(e), RLPR; (4) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR; and (5) establishment by clear and convincing evidence that respondent is subject to no mental disability which will impair his ability to practice law in compliance with the Minnesota Rules of Professional Conduct, after first submitting, at his expense, to an independent medical examination if so requested by the Director.

This court has independently reviewed the file and approves the jointly recommended disposition:

IT IS HEREBY ORDERED that respondent Stanley J. Leino is suspended from the practice of law for an additional two years to run consecutively to the minimum three-year suspension ordered by this court in In re Disciplinary Action Against Leino, 609 N.W.2d 616 (Minn.2000). The reinstatement hearing provided for in Rule 18, RLPR, is not waived and respondent may not petition for reinstatement prior to March 2, 2005. Reinstatement is conditioned upon the agreed-upon conditions set forth above. Respondent shall pay $1,563.68 in costs and disbursements plus interest.

BY THE COURT:

Paul H. Anderson Associate Justice


author: /s/ J.E. Lancaster, Associate Justice

text:
    Nancy GRIEGER, Relator, v. VIKING COLLECTIONS, and St. Paul Fire and Marine Insurance Company, Respondents, Medica Choice/HRI, Twin Cities Orthopedics, P.A., Intervenors.
    No. C4-01-1912.
    Supreme Court of Minnesota.
    Jan. 29, 2002.
    Neut L. Strandemo, Eagan, for relator.
    Barbara L. Heck, Candlin & Heck, Bloomington, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 8, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ J.E. Lancaster, Associate Justice


author: RUSSELL A. ANDERSON, Justice.

text:
    Merrill A. JORGENSON, Relator, v. NOVAK-FLECK, INC. and Regent Insurance Company/General Casualty Company, Respondents.
    No. C1-01-1575.
    Supreme Court of Minnesota.
    Feb. 7, 2002.

      David C. Wulff, Roseville, for Relator’s Attorney.
    Kyle T. Kustermann, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, for Respondent Attorney, Novak-Fleck, Inc.
    Patrick T. Grove, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, for Respondent Attorney, Regent Insurance.
   OPINION

RUSSELL A. ANDERSON, Justice.

By writ of certiorari employee-relator Merrill A. Jorgenson seeks review of a decision of the Workers’ Compensation Court of Appeals reversing, by panel majority, an award of attorney fees. We reverse and reinstate the award.

Jorgenson sustained a compensable neck and back injury in 1994 while working for Novak-Fleck, Inc. The employer and its workers’ compensation liability carrier on risk for that injury, Heritage Mutual Insurance Company (Heritage), apparently accepted liability and paid certain medical expenses. In 1996, Heritage informed the employee’s medical providers that further medical expenses would no longer be paid voluntarily, relying on expert medical opinion that the work-related injury had resolved and that further disability was due to a preexisting condition. In February 1997, the employee filed a claim petition, seeking permanent partial disability benefits and payment for chiropractic care related to his 1994 injury. The compensation judge denied the claim and also Heritage’s claim that a second injury had occurred for which it was owed contribution and/or reimbursement from the employer’s subsequent carrier, Regent Insurance Company. No appeal was taken from that decision.

The employee retained attorney David C. Wulff in February 2000, and Wulff filed a claim petition on the employee’s behalf in March 2000, alleging that the employee was entitled to payment of chiropractic bills totaling $898.09 plus interest and reimbursement for associated medical mileage of approximately $20 relative to a claimed neck and back injury of April 23, 1998. There was no other claim. The employer and Regent denied primary liability on the grounds that the employee’s cervical complaints preexisted any alleged work injury. The employer and insurer did not assert that the employee had failed to obtain certification of the dispute. Shortly thereafter, the parties entered into a settlement which provided (1) that the chiropractor would receive 80% of the fee scheduled amount, $567.06; (2) that the employee would receive $100 for out-of-pocket medical mileage or other claims; and (3) that the injury of April 23, 1998, was a temporary aggravation of the employee’s prior injury or preexisting conditions. The settlement agreement provided that it did not cover attorney fees and that Wulff would file a separate petition for attorney fees.

When Wulff petitioned for attorney fees of $1,505, the employer and insurer asserted that the claim was barred by the certification requirements of Minn.Stat. § 176.081, subd. 1(c) (2000). The compensation judge determined that because primary liability had been disputed by the employer and insurer, the certification procedure did not apply. The WCCA reversed by 2-1 decision, concluding that certification was required.

Attorney fees may be awarded only on genuinely disputed claims or portions of claims. Minn.Stat. § 176.081, subd. 1(c). If there is no other litigation pending at the Department of Labor and Industry or at the Office of Administrative Hearings in which the employee is represented by an attorney, attorney fees may not be charged for “services with respect to a medical or rehabilitation issue * * * performed before the employee has consulted with the department and the department certifies that there is a dispute and that it has tried to resolve the dispute.” Id. As the WCCA majority observed, the “apparent intent” of the dispute certification process is “the prompt and economical resolution of medical and rehabilitation disputes without the need for attorney involvement.” Jorgenson v. Novak-Fleck, Inc., 2001 WL 1255890, at *3 (Minn. WCCA Aug. 31, 2001). We also agree that this process is not “a mere technicality that may be ignored.” Id. at *4. But the department has no jurisdiction to determine primary liability issues. Minn.Stat. § 176.106, subd. 8 (2000). Inasmuch as the department has no jurisdiction to resolve a dispute when the employer and insurer deny primary liability, certification is superfluous. Moreover, it would be inequitable to deny fees when the employer and insurer do not raise the issue in response to what they believe to be a claim requiring certification. We therefore reverse the WCCA and reinstate the decision of the compensation judge and the award based thereon.

Reversed and compensation judge’s award reinstated.

Employee is awarded $600 in attorney fees.

      . Minn.Stat. § 176.081, subd. 1(c), provides in pertinent part as follows:
      Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims, including disputes related to the payment of rehabilitation benefits or to other aspects of a rehabilitation plan. The existence of a dispute is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute. Except where the employee is represented by an attorney in other litigation pending at the department or at the office of administrative hearings, a fee may not be charged after June 1, 1996, for services with respect to a medical or rehabilitation issue arising under section 176.102, 176.135, or 176.136 performed before the employee has consulted with the department and the department certifies that there is a dispute and that it has tried to resolye the dispute.

      . Miim.Stal. § 176.106, subd. 8 provides that, "[t]he commissioner does not have authority to make determinations relating to medical or rehabilitation benefits when there is a genuine dispute over whether the injury initially arose out of and in the course of employment, except as provided by section 176.305.” Typically, in medical disputes the employee or insurer initiates the claim process with a "medical request form.” See Minn. R. 5220.2620. Because the department has no jurisdiction over primary liability issues, when a medical request form is "mistakenly filed in a case in which initial issues of liability exist,” the department will refer the matter for a settlement conference before a workers' compensation division judge, or advise the requesting party to file a claim petition or take other appropriate measures. Id. at subp. 5.


author: PAGE, Justice. PAUL H. ANDERSON, Justice GILBERT, Justice

text:
    DALE PROPERTIES, LLC, Respondent, v. STATE of Minnesota, Petitioner, Appellant.
    No. C3-00-837.
    Supreme Court of Minnesota.
    Feb. 7, 2002.

      Mike Hatch, Attorney General, David Michael Jann, Assistant Attorney General, St. Paul, Attorneys for Appellants.
    John W. Lang, Thomas P. Klecker, Mes-serli & Kramer, P.A., Minneapolis, Attorneys for Respondent.
   OPINION

PAGE, Justice.

This case presents the issue of whether a landowner whose immediate access to a state highway has been limited to one direction by the closure of a median crossover is entitled to compensation from the state for the resulting reduction in value of its property. The court of appeals reversed summary judgment for the state and remanded for a determination whether the remaining access was “reasonably convenient and suitable.” We reverse, concluding that a property owner who retains direct access to traffic in one direction, although losing it in the other direction due to the closure of a median crossover, retains reasonable access as a matter of law.

Dale Properties, LLC (Dale), owns roughly 29 acres of undeveloped land, which it uses for farming, in Oakdale, Minnesota. The property, located in the southeast quadrant of the intersection of Interstate 694 and Trunk Highway 5, is bounded by 1-694 on the west, Highway 5 on the north, a railroad right-of-way on the south, and another owner’s undeveloped property on the east. Dale’s access to the property is limited to a 30-foot point of access at the northeast corner of the property. In September 1997, the Minnesota Department of Transportation closed an opening in the median along Highway 5 directly across from Dale’s access point. Due to the closing, the westbound lanes of Highway 5 are no longer available for direct ingress to or egress from the property.

After the median crossover was closed in 1997, Dale was left with direct access to only the eastbound lane of Highway 5. Consequently, those wishing to enter the property from the westbound lane have had to travel an additional five-eighths of a mile and make a U-turn onto the eastbound lane to reach the property’s access point. Those exiting the Dale property wishing to travel west have had to travel an additional mile as well as make a U-turn. According to Dale, commercial trucks are unable to make U-turns at the intersections closest to the property.

Due to the closure, Dale alleged difficulty in the development of the property, which is zoned industrial office in the northern portion, general industrial in the southern portion, and guided commercial generally. Dale claimed that, before the closing, the highest and best use of the property was threefold: a convenience store with gas pumps, a hotel with a restaurant, and office buildings and warehouse space. Dale claimed that, after the closing, the highest and best use was residential development. Dale asserted that the closure of the crossover caused the value of the property to drop by approximately $800,000.

Dale petitioned the district court for a writ of mandamus seeking to compel the state to initiate condemnation proceedings or, in the alternative, to pay damages allegedly caused by the closure of the median crossover. Dale contended that the property no longer had reasonably convenient and suitable access to the highway, that the closure substantially impaired its ability to develop the property, that the closure significantly decreased the property’s fair market value, and that the closure constitutionally damaged the property, thereby amounting to a taking in violation of both the Minnesota and the United States Constitutions. In response, the state moved for summary judgment, asserting that Dale’s property had access in one direction, as required by this court’s decision in County of Anoka v. Blaine Building Corp., 566 N.W.2d 331 (Minn.1997), and that no taking occurred.

The district court granted the state’s motion for summary judgment, finding that it was unnecessary to consider the reasonableness of Dale’s remaining access to the highway because no “compensable taking” had occurred. On appeal, the court of appeals concluded that the district court erred by failing to consider whether Dale’s remaining access was “reasonably convenient and suitable.” Dale Props., LLC v. State, 619 N.W.2d 567, 571 (Minn.App.2000). As a result, the court of appeals reversed in part and remanded. Id. at 573.

I.

Article I, section 13, of the Minnesota Constitution provides that “[pjrivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” Minnesota Statutes § 117.025, subd. 2 (2000), defines “[tjaking and all words and phrases of like import” to include “every interference, under the right of eminent domain, with the possession, enjoyment, or value of private property.” Thus, a taking may occur both as a result of the physical appropriation of property or as the result of interference with the ownership, possession, enjoyment, or value of property. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978). In either case, our analysis is the same. Blaine Bldg. Corp., 566 N.W.2d at 336. Property owners who believe the state has taken their property in the constitutional sense may petition the court for a writ of mandamus to compel the state to initiate condemnation proceedings. Gibson v. Commissioner of Highways, 287 Minn. 495, 498, 178 N.W.2d 727, 729-30 (1970); see also Minn.Stat. §§ 586.01-12 (2000).

II.

The resolution of this case is governed by our decisions in Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165 (1964), State ex rel. Mondale v. Gannons Inc., 275 Minn. 14, 145 N.W.2d 321 (1966), and, most recently, Blaine Building Corp., 566 N.W.2d at 331.

Hendrickson involved the state’s construction of a freeway that denied the abutting property owner direct access to the highway. 267 Minn. at 436-39, 127 N.W.2d at 167-69. The property owner’s only access to the highway was indirect and circuitous by way of a frontage road. Id. at 439, 127 N.W.2d at 169. We held that, notwithstanding the availability of a frontage road, an owner suffers compensa-ble damage if the highway to which the owner previously had immediate and unlimited access is rebuilt on an existing right-of-way in a manner that denies the owner reasonably suitable and convenient access to the main thoroughfare in at least one direction. Id. at 445-46, 127 N.W.2d at 172-73. While holding that the state’s exercise of its police power, on the facts presented, could result in a compensable loss, we set forth a number of examples of noncompensable exercises of a state’s police power. Id. at 440-41, 127 N.W.2d at 169-70. One such example was the construction of “median strips prohibiting or limiting crossovers from one lane of traffic to another.” Id. The other examples included the establishment of one-way streets and lanes of traffic; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles. Id. The court noted that these restrictions and regulations do not give rise to compensable damages because they “govern all motorists, including abutting property owners once they are on the traveled portion of the thoroughfare.” Id.

In Gannons Inc., we held that the trial court erred when it failed to “instruct on the police power of the state to control traffic by median strips or dividers without the payment of compensation.” 275 Minn. at 21-22, 145 N.W.2d at 327-28. In doing so, the court noted that the “law is well settled in this state and other states that the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation.” Id. at 23, 145 N.W.2d at 329.

Recently, in Blaine Building Corp., we considered whether the loss of traffic access in one direction, due to the construction of a median, may be included when determining the market value of the remaining land after a partial taking. 566 N.W.2d at 334. In answering that question, we again stated that “ ‘the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation,’ where, as a result, a property owner loses traffic access in one direction, but retains access in the other.” Id.

The rationale for concluding that loss of traffic access in one direction is noncom-pensable when direct traffic access remains in the other direction can be found in our prior cases and the cases upon which we relied in Hendrickson and Gannons Inc. Collectively, the reasons may be stated as follows: First, the construction of highway medians constitutes an exercise of police power in furtherance of the state’s duty to ensure public safety on the roadways. Hendrickson, 267 Minn. at 442, 127 N.W.2d at 170; State Highway Comm’n v. Burk, 200 Or. 211, 265 P.2d 783, 792 (1954); Pennysavers Oil Co. v. State, 334 S.W.2d 546, 548-49 (Tex.Civ.App.1960). Second, the restrictions on travel that result from the use of highway medians affect all members of the traveling public and are not unique to abutting property owners. Hendrickson, 267 Minn. at 441, 127 N.W.2d at 170; Iowa State Highway Comm’n v. Smith, 248 Iowa 869, 82 N.W.2d 755, 762 (Iowa 1957); Holman v. State, 97 Cal.App.2d 237, 217 P.2d 448, 452 (1950). Third, as long as property owners have access to the abutting highway in at least one direction, the use of highway medians that prohibit crossover from one traveled lane to another merely results in circuity of route, as opposed to substantial impairment of the right of access. Gibson, 287 Minn. at 500, 178 N.W.2d at 730; People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702, 711 (1951); Mabe v. State, 83 Idaho 222, 360 P.2d 799, 802 (1961).

Additionally, it is obvious that the dividing of a highway will have a marked effect on traffic patterns and access in any situation. Gannons Inc., 275 Minn. at 22, 145 N.W.2d at 328. Although not a reason in and of itself for our conclusion today, we are wary of creating a legal environment in which the cost of regulating traffic and improving roadways becomes prohibitive. Langley Shopping Ctr. v. State Roads Comm’n, 213 Md. 230, 131 A.2d 690, 693 (1957) (noting that, if the state were required to compensate property owners for damages resulting from the construction of medians, the cost of doing so could be prohibitive); Sayig, 226 P.2d at 710 (“If a property owner is entitled to compensation because a divided highway is constructed in front of his property, then the same result would logically follow when one-way streets are created in cities to control traffic, or even where a double white line is placed in a highway which prohibits traffic from crossing that lane lawfully, and thus permits only one-way traffic in front of the property.”).

In Hendrickson, Gannons Inc.., and Blaine Building Corp., our statements focused on the construction of highway medians as opposed to the closure of highway median crossovers. We see no reason, however, to distinguish between the two situations when looking at the underlying rationale for holding that the construction of a highway median cannot be made the subject of compensation. Therefore, we conclude that the closure of the median crossover opposite Dale’s access point was a noncompensable exercise of the state’s police power because Dale lost traffic access in one direction, but retained access in the other direction.

Reversed and summary judgment reinstated.

Concurring Specially, PAUL H. ANDERSON, J. and GILBERT, J.

PAUL H. ANDERSON, Justice

(concurring specially).

I concur with the majority’s conclusion that the district court did not err as a matter of law when it found that the state’s closure of the median crossover did not constitute a compensable taking. But I write separately to clarify specific factual aspects of this case, to address the relevancy of County of Anoka v. Blaine Building Corp., 566 N.W.2d 331 (Minn.1997), and to express concerns about the breadth of the court’s holding.

First, it is important to clarify the factual setting of this ease. In its arguments before both the district court and the court of appeals, Dale Properties asserted that the 1973 Final Certificate issued at the conclusion of the earlier condemnation proceedings granted Dale Properties a right to the median crossover point. Both lower courts concluded that the certificate granted no such right. The issue of the 1973 Final Certificate is not before us on appeal; therefore, the ruling of the lower court on this issue is the law of the case. The lower court’s ruling places Dale Properties in a situation similar to any other abutting landowner. Dale Properties cannot claim that as the result of an earlier condemnation proceeding, it retained specific rights to the median crossover. Therefore, Dale Properties asserts an inverse condemnation claim, not a takings claim.

Second, the majority uses Blaine Building, a partial takings case, to support the result reached here even though this case, as previously noted, is an inverse condemnation case. This confusion is in part understandable because the court in Blaine Building failed to distinguish between the two types of cases. But inverse condemnation cases are not dispositive in partial takings cases. As I stated in the dissent in Blaine Building, “inverse condemnation precedent confuses the threshold issue of whether a property owner is entitled to compensation with the true issue in [.Blaine Building]: whether evidence of diminished access is admissible to establish the proper measure of damages when there has been a partial taking.” 566 N.W.2d at 339.

The problems with the court’s analysis in Blaine Building were recently summarized in a law review article. In that article, the commentator said:

Thus, in Blaine Building Corp., the majority spends much of the opinion arguing the reasons for denying compensation, when the issue of whether or not compensation will be awarded is not in dispute, instead of discussing any reasons as to why the evidence of diminished access is not admissible.
A better and more coherent approach for the majority would have been to exclusively rely on partial takings cases in making its decision. Inverse condemnation cases are instituted by a landowner to try to prove that property has been taken. In Blaine Building Corp., property had been taken and there was no dispute as to the fact that compensation was required, as is the case in other partial takings cases. Thus, the line of cases presented by the majority are, as the dissent pointed out, “not helpful in that they address only the issue of whether a compensable taking has occurred and shed little light on the proper measure of damages when, as here, the right to compensation is indisputable.”

The irony of citing Blaine Building to support the result reached in the case before us today is that the inverse condemnation cases inappropriately relied upon in Blaine Building are appropriate to our analysis here. Nevertheless, it is important to keep in mind that partial takings cases and inverse condemnation cases have different pedigrees and we should not perpetuate any erroneous confusion of the two concepts.

Finally, the breadth of the court’s opinion is troublesome because the majority, like the district court, resolves the issue before us by adopting the position that removal of a median crossover can never constitute a compensable taking. Therefore, the majority does not address the issue of reasonably convenient and suitable access. However, we have long recognized the principle that property owners do enjoy a right of “reasonably convenient and suitable” access to highways that abut their property. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978); State ex rel. Mondale v. Gannons Inc., 275 Minn. 14, 19, 145 N.W.2d 321, 326 (1966). We reiterated this principle in Blaine Building when we said “a property owner suffers compensable damage when the roadway is changed in such a way that the owner is denied reasonably convenient and suitable access to the main thoroughfare in at least one direction.” Blaine Bldg. Corp., 566 N.W.2d at 334 (citing Gannons, 275 Minn. at 19, 145 N.W.2d at 326; Hendrickson v. State, 267 Minn. 436, 437, 127 N.W.2d 165, 168 (1964)). See also Recke v. State, 298 Minn. 500, 502, 215 N.W.2d 786, 788 (1974). The import of this statement is clear — when a roadway is changed, a property owner may not be denied “reasonably convenient and suitable access” in at least one direction.

It is likely that confusion has been created by the sentence in Blaine Building that follows the aforementioned statement. This second sentence reads as follows:

“[T]he law is well settled * * * that the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation,” where, as a result, a property owner loses traffic access in one direction, but retains access in the other. Gannons, 275 Minn. at 23, 145 N.W.2d at 329.

Blaine Bldg. Corp., 566 N.W.2d at 334. The majority construes this statement to mean that dividing a roadway by median strips or dividers, ergo removal of a median crossover, can never be the subject of compensation in condemnation. Such a reading ignores the juxtaposition of “reasonably convenient and suitable access” in the first sentence and “retains access” in at least one direction in the second sentence. When read together, the principle articulated in Blaine Building is that the retained access to the main thoroughfare m one direction must still be reasonably convenient and suitable. If it is not, there is a taking subject to compensation in a condemnation proceeding.

The holding articulated by the majority is so broad that access “in one direction” to Dale Properties’ property could at one point be in Wisconsin and at the other in South Dakota. Such access would not be reasonably convenient and suitable and would be subject to compensation. Fortunately, that is not the situation that we have before us. Based on the facts, Dale Properties has not demonstrated that it has been denied reasonably convenient and suitable access in at least one direction. Therefore, it is not entitled to relief in an inverse condemnation proceeding. Here, when the state closed the median crossover, it properly exercised its police power in furtherance of its duty to ensure public safety on Highway 5. There was no com-pensable taking as a matter of law. But, unlike the majority, I am unwilling to state as an absolute rule that, as a matter of law, there never can be a compensable taking when a median crossover is closed. Therefore, I would reverse the court of appeals and reinstate summary judgment, but would do so on substantially more limited grounds than those articulated by the majority.

GILBERT, Justice

(concurring specially)-

I join in the special concurrence of Justice Paul H. Anderson.

      . We note that in arriving at our conclusion, we were hard-pressed to imagine a situation whereby not having access to the roadway in one direction would require one to traverse the expanse of a state just to make a U-turn.

      . Alison J. Midden, Case Note, Property— Taking of Access: Minnesota Supreme Court Declines to Allow Admission of Evidence of Diminished Access Due to Installation of a Median In a Takings Case, 25 Wm. Mitchell L.Rev. 329, 349-50 (1999) (emphasis added) (citations omitted).


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Eddy Marshall BOTELHO, Appellant.
    No. C3-01-198.
    Court of Appeals of Minnesota.
    Jan. 2, 2002.

      Mike Hatch, Attorney General and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, for respondent.
    Barry V. Voss, Timothy J. Hickman, Voss & Hickman, P.A., Minneapolis, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, ANDERSON, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   G. BARRY ANDERSON, Judge.

OPINION

The district court found appellant guilty of second-degree possession of cocaine after appellant entered a Lothenbach stipulation. Appellant appeals the district court’s denial of his motion to suppress evidence seized in connection with a search of his residence on three grounds: (1) that the search warrant for appellant’s residence was not supported by probable cause; (2) that the search-warrant application did not state a sufficient factual basis to support reasonable suspicion of a threat to officer safety, or a likelihood that evidence would be destroyed, justifying an unannounced entry; and (3) that the officers failed to reappraise the circumstances adequately before executing the unannounced entry. Because the factual basis in the search-warrant application does not support reasonable suspicion of a threat to officer safety, or a threat of destruction of evidence, justifying an unannounced entry, we reverse.

FACTS

In September 1999, a St. Anthony police officer was informed that a concerned citizen had reported suspicious activity at appellant’s residence. The suspicious activity consisted of multiple cars frequenting the residence, stopping only briefly, at all hours of the day. The citizen and St. Anthony police officers immediately began to monitor and record the vehicles’ license-plate information.

The officer initiated a criminal investigation and discovered that in July 1999, an alleged assault occurred at appellant’s residence. According to the police report, the alleged assault victim declined to press charges, but told police that drugs were present and used at appellant’s residence. The officer subsequently conducted a garbage search and found, among other things, “small round pieces of tin foil that had holes punched in them with a burned residue on top.” The residue tested positive for cocaine.

In October 1999, a few days after he conducted the garbage search, the officer requested district court approval of a search warrant for appellant’s automobile and residence. The officer’s application stated that he believed narcotics and controlled substances were present at appellant’s residence and in appellant’s automobile. The officer also requested the district court authorize an unannounced, or “no-knock,” entry, “to ensure the safety of the officers * * * and to avoid the destruction and/or removal of the contraband and evidence therein.” The officer further stated in his application:

An unannounced entry is necessary (to prevent the loss, destruction or removal of the objects of the search [and] to protect the safety of the peace officers) because:
Your affiant has learned that illegal drugs are being used at this address, and due to the easy availability of the destruction of these drugs, and the practice of drug dealers being armed with weapons. Furthermore, your affiant has also learned that people frequenting the address having [sic] dangerous weapon criminal histories as well as histories reflective of obstructing legal process.

(First alteration in original.) Based solely on the officer’s application, the district court approved the search warrant and the unannounced entry.

On October 8, 1999, at approximately 9:00 a.m., the police executed the search warrant. The officer approached the front door of the residence and, using a sledgehammer, proceeded to break down the door. Officers entered the residence, announced their presence, arrested appellant, and seized approximately 7.2 ounces of cocaine and a large amount of cash from a bedroom safe.

The state charged appellant with second-degree possession of cocaine, a violation of Minn.Stat. § 152.022, subds. 2(1), 3(a) (1998). At an omnibus hearing, the officer testified as described above and confirmed that, as part of his preliminary investigation, he checked the license plates of the vehicles frequenting appellant’s residence and determined that the vehicles were registered to individuals with criminal histories that included drug, dangerous weapons, and obstructing legal process offenses. The officer also admitted that the officers performed a cursory reappraisal of the need for the unannounced entry before breaking down appellant’s door. The officer testified that

we looked at the property itself. I put the officers in position. We didn’t see that the door was open or that there was any other way of entering the place, and then [we] decided to go ahead and force open the door as directed by the search warrant.

But the officer did not verify whether the individuals frequenting the residence were the vehicles’ registered owners with criminal histories. The officer admitted that he had no specific knowledge that the individuals entering appellant’s residence, or appellant, possessed weapons on their person. The officer also admitted that he had no particular information to make him suspect that the individuals inside the residence would destroy drugs upon execution of a search warrant; rather, the officer stated that he knew from his significant experience as a police officer that cocaine, the drug he was searching for, was readily disposable.

ISSUES

I. Was the search warrant for appellant’s residence supported by probable cause?

II. Did the search-warrant application state a sufficient factual basis to support reasonable suspicion that an unannounced entry was justified?

III. Did the officers fail to reappraise the circumstances adequately before executing the unannounced entry?

ANALYSIS

I. Was the search warrant for appellant’s residence supported by probable cause?

Appellant first argues that the search warrant for his residence was not supported by probable cause because the search-warrant application relied on citizen informants whose credibility was unconfirmed. Appellant argues that the officer’s application contains less information than the application at issue in State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App.1991), where this court found a lack of probable cause for police to search a residence for drugs. The officer’s application, according to appellant, contains “no independent substantiation of either the unidentified citizen’s information or that of the alleged and unidentified assault victim’s information.” Appellant argues that in order to establish the informants’ credibility, the application must provide a judge with enough information for her to assess the informants’ credibility.

The United States and Minnesota constitutions protect citizens from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. “With a few exceptions, a search is valid only if it is conducted pursuant to a valid search warrant.” Albrecht, 465 N.W.2d at 108 (citation omitted). A search warrant must be supported by probable cause. Minn.Stat. § 626.08 (1998); State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (holding that “the presence of probable cause should be determined under a ‘totality of the circumstances’ test” (quotation omitted)). This court

reviews a district court’s decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed.

State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001) (citation omitted).

“Substantial basis” in this context means a “fair probability,” given the totality of the circumstances, “that contraband or evidence of a crime will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quotations and citations omitted). When we review “the sufficiency of an affidavit under the totality of the circumstances test,” we must not “review each component of the affidavit in isolation.” Albrecht, 465 N.W.2d at 109 (citation omitted). This court’s standard of review, therefore, affords the district court great deference and is not de novo. See Rochefort, 631 N.W.2d at 804-05; State v. McCloskey, 453 N.W.2d 700, 704 (Minn.1990) (suggesting “that the resolution of marginal cases should be ‘largely determined by the preference to be accorded to warrants’ ” (quotation omitted)).

The officer’s application stated four primary facts that made the officer suspect that drugs were present in appellant’s residence: (1) multiple vehicles frequenting the residence at all hours of the day; (2) the criminal drug histories of the vehicles’ registered owners; (3) the late July 1999 double-hearsay statement by the alleged assault victim that alleged that drugs were present and used in appellant’s residence; and (4) the garbage search that uncovered cocaine residue on tin foil among appellant’s personal effects.

We conclude that the district court had a substantial basis for concluding that probable cause existed to search appellant’s residence.

First, the concerned citizen only knew that multiple vehicles frequented appellant’s residence for short periods, at all hours of the day. Indeed, the officer’s application recognized that the citizen was “worried about the possibility of narcotics trafficking occurring at the residence.” The citizen had no specific firsthand knowledge of what was occurring inside appellant’s residence; therefore, any belief that the suspicious traffic was drug-related was mere speculation, although this court has found that “incessant traffic of brief visits to [a] residence [may be] very significant” to a probable-cause determination. State v. Anderson, 439 N.W.2d 422, 426 (Minn.App.1989) (quotation omitted), review denied (Minn. June 21, 1989).

Second, the statement from the alleged assault victim took place over two months earlier and was arguably stale. See State v. Souto, 578 N.W.2d 744, 750 (Minn.1998) (“ ‘[T]he proof must be * * * closely related to the time of the issue of the warrant * * * to justify a finding of probable cause at that time.’ ” (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932)) (alteration in original)).

But we need not decide whether the suspicious traffic and the hearsay statement alone provided the district court a substantial basis to conclude that probable cause existed to search appellant’s residence because the garbage search is crucial to the probable-cause determination. As the officer stated in his application, he conducted the garbage search after other evidence made him suspect drug activity at appellant’s residence. See State v. Richardson, 514 N.W.2d 573, 579 (Minn.App.1994) (“Although police officers may rely on training and experience to draw inferences and make deductions, mere suspicion does not equal probable cause.” (citing State v. Skoog, 351 N.W.2d 380, 381 (Minn.App.1984))). The officer’s garbage search uncovered tin foil and suspicious residue, later confirmed to be cocaine residue.

The cocaine residue, accompanied by appellant’s personal effects, independently corroborated the officer’s suspicion that drugs were present in appellant’s residence, and, therefore, we conclude that the district court had a substantial basis for concluding that probable cause existed to search appellant’s residence for drugs. See McCloskey, 453 N.W.2d at 704 (stating that independent corroboration of an anonymous tip is a relevant factor in “making the totality-of-the-circumstances assessment of probable cause”).

II. Did the search-warrant application state a sufficient factual basis to support reasonable suspicion that an unannounced entry was justified?

Appellant argues that the unannounced entry was not justified, and therefore illegal, because the officer’s application alleged no facts to justify an unannounced entry and was conclusory and misleading. Appellant argues that the officer only suspected that drug use occurred at appellant’s residence and that allegations of drug dealers and “the practice of drug dealers being armed with weapons” was misleading speculation. Moreover, appellant contends that the officer admitted that he had not confirmed whether the individuals frequenting appellant’s residence were the vehicles’ owners with drug, dangerous weapons, and obstructing legal process histories. Appellant argues that this admission contradicts the officer’s application statement that “people frequenting the address hav[e] dangerous weapon criminal histories as well as histories reflective of obstructing the legal process.”

“Where the material facts are not in dispute, this court independently reviews whether a no-knock entry was justified.” State v. Barnes, 618 N.W.2d 805, 810 (Minn.App.2000) (citing State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000)), review denied (Minn. Jan. 16, 2001).

Inquiry into the need for an unannounced entry is included in the reasonableness inquiry into the warranted search under the Fourth Amendment of the U.S. Constitution.

Garza v. State, 632 N.W.2d 633, 638 (Minn.2001) (citation omitted); see also Wasson, 615 N.W.2d at 320 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995)). Under this reasonableness inquiry, our supreme court has recently reaffirmed that

the police [must] inform the issuing magistrate of the circumstances that they believe justify the unannounced entry and [must] obtain specific advance authorization for an unannounced entry.

Wasson, 615 N.W.2d at 320 (citation omitted); see also Garza, 632 N.W.2d at 638 (“Facts justifying an unannounced entry must be presented to the magistrate at the time of the application.” (citation omitted)). Judicial pre-approval is relaxed only where an unapproved, unannounced entry is “necessary for a safe and successful execution of the warrant.” Wasson, 615 N.W.2d at 320 n. 2 (citation omitted).

Factors that justify an unannounced entry include the likelihood of destruction of evidence and a threat to the safety of the officers executing the warrant. Id. at 320-21 (safety of officers); State v. Parker; 166 N.W.2d 347, 353, 283 Minn. 127, 136 (1969) (destruction of evidence).

The United States Supreme Court, however, “has rejected a blanket exception to the knock-and-announce rule * * * for all felony drug cases.” Barnes, 618 N.W.2d at 811 (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997)). Our supreme court has also rejected a blanket exception for felony-drug cases:

“[P]olice must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”

Wasson, 615 N.W.2d at 320 (emphasis added) (quotation omitted). Consequently,

boilerplate language in the search warrant affidavit does not satisfy the requirement for a showing, particular to the search at issue, that announcing would be dangerous or allow the destruction of evidence.

Id.; see also Garza, 632 N.W.2d at 638. Therefore, the supreme court has recently reaffirmed that

under the Supreme Court ruling in Richards requiring a showing of need “under particular circumstances,” * * * a generalized showing of drug trafficking is not sufficient justification for an unannounced entry because evidence of drug trafficking does not, ipso facto, equate to a conclusion that an announced entry would be dangerous or futile, or that it would result in the destruction of evidence. While the showing required to justify an unannounced entry is not high, * * * there [must be a] particularized showing of dangerousness, futility or destruction of evidence * * *.

Garza, 632 N.W.2d at 638 (citation omitted). Therefore, police must have reasonable suspicion of a threat to officer safety or the likelihood of destruction of evidence, and this reasonable suspicion must be supported by a particularized showing of dangerousness, futility, or likelihood of destruction of evidence.

The supreme court, however, has cautioned that this court

may accept evidence of a threat to officer safety of a less persuasive character when the officer presents the request for a no-knock warrant to a magistrate.

Wasson, 615 N.W.2d at 321. Consequently, when an officer complies with established procedure and obtains judicial pre-approval for an unannounced entry, this “weighs against excluding the evidence seized.” Id.

It is also useful to consider our supreme court’s decision in State v. Wasson and this court’s decision in State v. Barnes. The Wasson court found there was reasonable suspicion of a threat to officer safety because (1) “numerous weapons were seized from the exact location just three months earlier” and because (2) drugs were being sold at the residence “to at least [an informant] and perhaps others.” Wasson, 615 N.W.2d at 320-21.

In Barnes, this court concluded that an unannounced entry was justified because there was evidence of drug dealing, gang affiliation, and because defendant “had a prior criminal record and that the level of drug trafficking was very high.” Barnes, 618 N.W.2d at 812. The Barnes court specifically recognized,

The search warrant application * * * established more than the fact that * * * [the] residence [was] involved in suspected drug dealing. The warrant also established that Barnes, a known gang member with a record of incarceration, had been observed with other individuals in what appeared to be an extensive drug dealing operation involving large amounts of cocaine.

Id. at 811.

Here, the officer requested an unannounced entry because (1) unidentified periodic visitors with equally unidentified drug, dangerous weapons, and obstructing legal process histories and (2) “the practice of drug dealers being armed with weapons” threatened officer safety. The application also requested an unannounced entry in boilerplate language (“due to the easy availability of the destruction of these drugs”) alleging that it was likely destruction of evidence could easily occur with an announced entry.

We first recognize that Wasson’s extreme deference supports the arguably defensible view that the officer had some suspicion that there was a hypothetical threat to officer safety, at least because of the individuals with drug, dangerous weapons, and obstructing legal process histories periodically frequenting the residence.

We conclude, however reluctantly, that the allegations in the application are not sufficiently particularized to support reasonable suspicion of a threat to officer safety or a threat of destruction of evidence.

First, although we believe it was reasonable for the officer to assume that the vehicles’ registered owners with criminal histories were the actual individuals frequenting appellant’s residence, the officer’s application does not go much further.

Richards, Wasson, and Garza require a particularized showing of dangerousness. The application does not mention the specific offenses constituting the visitors’ drug, dangerous weapons, and obstructing legal process histories. There are no specific allegations of when, or under what circumstances, these offenses occurred. There is no factual basis in the application that appellant, or any individual frequenting appellant’s residence, was armed, or that weapons, brought by anyone, were ever located in the residence. The application falls short of the showing made in Barnes, which related to the defendant’s own gang membership and criminal history. The application’s reliance on the characteristics of appellant’s apparent customers or associates does not provide significantly more support than the generalizations in Richards.

The officer also inferred that it would be particularly dangerous to announce the officers’ presence because of the “practice of drug dealers being armed with weapons.” But the application does not allege that appellant or the visitors to appellant’s residence were drug dealers, or, more specifically, armed drug dealers. The factual allegations at most support a conclusion that individuals with criminal histories were using drugs, perhaps heavily, at appellant’s residence. See Wasson, 615 N.W.2d at 320 (stating that “[t]o substantiate the need for a no-knock warrant an officer must establish more than that drugs are involved”); State v. Martinez, 579 N.W.2d 144, 147-48 (Minn.App.1998) (language in application that drug traffickers “are often armed with firearms and other dangerous weapons and will use these weapons” is not sufficiently particularized (quotation omitted)), review denied (Minn. July 16,1998).

Moreover, even if we assume appellant engaged in drug trafficking, this fact alone, without a particularized showing of dangerousness, futility, or the likelihood of destruction of evidence, cannot support an unannounced entry. See Garza, 632 N.W.2d at 638 n. 1 (“To the extent [that our previous cases] can be understood to authorize an unannounced entry on a showing only that the premises were used for drug trafficking, [they] are overruled.”); see also United States v. Tavares, 223 F.3d 911, 917 (8th Cir.2000) (where officer “did not have any information that [defendant] was known to use weapons, that he was armed or carried a weapon, or that he had a history of violence toward law enforcement officers,” the application did not justify an unannounced entry); State v. Eason, 245 Wis.2d 206, 629 N.W.2d 625, 635 (2001) (“vague and somewhat outdated” arrest records of targeted drug dealers and users insufficient to establish reasonable suspicion for an unannounced entry).

Second, the officer articulated his concern for the destruction of evidence using boilerplate language: “due to the easy availability of the desfruction of these drugs.” This type of language has been consistently rejected by the supreme court as insufficient to justify an unannounced entry. Wasson, 615 N.W.2d at 320.

Therefore, this case differs in several significant ways from Wasson and Barnes. In Wasson and Barnes, the factual allegations supported reasonable suspicion, through a particularized showing of dangerousness, because either several significant factors suggested there was a threat to officer safety (.Barnes) or there was evidence that the residence to be searched recently contained numerous weapons Wasson.)

By concluding that the allegations in the warrant application are not sufficient to support a particularized showing of dangerousness to officer safety, we are mindful of why the United States Supreme Court rejected Wisconsin’s blanket exception to the knock-and-announce requirement, which permitted unannounced entries for all felony-drug cases, and adopted a “case-by-case evaluation of the manner in which a search [is] executed.” Richards, 520 U.S. at 392, 117 S.Ct. at 1420 (footnote omitted). The Richards Court cautioned that creating a felony-drug exception to respond to today’s “drug culture” risks overgeneralizing the myriad circumstances under which felony-drug investigations arise, id. at 392-93, 117 S.Ct. at 1420-21 and, if adopted, such an exception could easily be applied to other areas of criminal activity where the participants are likely to have weapons and therefore pose a hypothetical danger to officer safety. Id. at 394, 117 S.Ct. at 1421. As the Supreme Court concluded,

If a per se exception were allowed for each category of criminal investigation that included a considerable — albeit hypothetical — risk of danger to officers or destruction of evidence, the knock- and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.

Id.

Although the factual basis required for an unannounced entry is not high, we con-elude the very limited and vague allegations in the warrant application at issue here do not meet the particularized-showing-of-dangerousness standard articulated by the Richards Court and by our supreme court in Wasson and Garza. Instead, to uphold the allegations in the case as sufficiently particularized would be a first step in creating a de facto bright-line exception for felony-drug cases, and, consequently, would render Richards’s admonitions meaningless.

Under Richards, Wasson, and Garza, however, we do not attempt to delineate a bright-line rule in this extremely fact-specific area of law, nor should we attempt such an undertaking. See Barnes, 618 N.W.2d at 812 (“We need not decide whether a no-knock entry could be based solely on evidence of drug dealing and gang affiliation.”). We simply conclude that allegations in a search warrant application that “the practice of drug dealers being armed with weapons” and that unidentified “people frequenting the address hav[e] dangerous weapon criminal histories as well as histories reflective of obstructing the legal process” are not sufficiently detailed to support a particularized showing of dangerousness to officer safety. Therefore, the unannounced entry was not supported by reasonable suspicion and was not justified. Consequently, the evidence found in appellant’s residence must be suppressed.

III. Did the officers fail to reappraise the circumstances adequately before executing the unannounced entry?

Appellant argues, in the alternative, that if the officer’s application originally justified an unannounced entry, the officers failed to reappraise the circumstances adequately before executing the unannounced entry.

Although a district court may approve a request for an unannounced entry, officers should still “make a ‘threshold reappraisal of the need to execute the warrant in this manner.’ ” Wasson, 615 N.W.2d at 322 (quotation omitted); see also Barnes, 618 N.W.2d at 812. The Wasson court emphasized that “officers ‘should’ make this appraisal” but did not “[announce] a hard and fast rule that the reappraisal is required in every case.” Wasson, 615 N.W.2d at 322. Where officers do reappraise the circumstances, we must “independently determine whether what the officers observed [before making the unannounced entry] demonstrated that an unannounced entry was improper.” Id. (citation omitted).

The officer testified that the officers “looked at the property itself.” He recalled that he “didn’t see that the door was open or that there was any other way of entering the place, and then [we] decided to go ahead and force open the door as directed by the search warrant.” Therefore, the reappraisal was brief and did not alert the officers to any change in circumstances.

We conclude that under Wasson, appellant’s argument that the officers failed to reappraise the circumstances adequately must fail. We recognize that Was-son’s reappraisal standard is extremely deferential. In Wasson, the warrant application requested an unannounced entry at night based on (1) ongoing drug activity and (2) the presence of numerous weapons found- during an unrelated search three months before the unannounced entry at issue. Wasson, 615 N.W.2d at 320-21. In executing the warrant in Wasson, officers approached the home and noticed the owner and Wasson sitting at a table. Id. at 322. The two men did not seem threatening. The supreme court, however, found that

nothing the officers observed contradicted their belief that weapons were present, or provided additional information to suggest there was no threat to officer safety. The officers were not required, based on their threshold reappraisal, to abandon the plan for an unannounced entry.

Id.

If there is no affirmative change in circumstances to suggest that officers need not conduct an unannounced entry, Wasson mandates that officers need not abandon their original plan for an unannounced entry.

Because the officers had no reason to believe the circumstances had changed from the circumstances outlined in the warrant application, they were under no obligation to abandon their original plan, and the reappraisal here met the minimal standard established by Wasson.

DECISION

Evidence of multiple vehicles frequenting appellant’s residence at all hours of the day, a hearsay statement in a police report stating that drugs were present and used at appellant’s residence, and cocaine residue found in appellant’s garbage, along with appellant’s personal effects, provided a substantial basis for the district court to conclude that there was probable cause to séarch appellant’s residence for drugs.

But there was an insufficient factual basis in the search-warrant application to justify an unannounced entry because a mere allegation that individuals with drug, dangerous weapons, and obstructing legal process histories frequented appellant’s residence is not a particularized showing of dangerousness sufficient to support reasonable suspicion of a threat to officer safety. Finally, the officers adequately reappraised the necessity of the unannounced entry.

Reversed.

      . Earlier in the application the officer alleged that the registered owners of the vehicles frequenting the residence had "extensive criminal drug histories” and had "burglary arrests, forgery arrests, financial transaction card fraud, dangerous weapons, and obstructing legal process” histories.

      . In Albrecht, this court found that an anonymous tip that alerted police that Albrecht was a marijuana dealer, that described the interior of Albrecht's residence, that stated that Al-brecht owned a red-and-white pickup truck, and that directed police to Albrecht’s residence, was insufficient to establish probable cause for a search warrant. Albrecht, 465 N.W.2d at 108-09. The officer in Albrecht did not seek to corroborate the credibility of the informant, but rather merely verified whether Albrecht owned a red-and-white truck and whether the tip correctly described Albrecht's address. Id. at 109. This court found that because the "facts corroborated were easily obtained facts and conditions which by themselves [were] inadequate to support a finding of probable cause,” without more, the facts were insufficient to establish probable cause. Id.

      . Appellant does not contest the constitutionality of the officer’s garbage search. It is well-established that garbage searches are constitutional in most cases. See, e.g., State v. Krech, 403 N.W.2d 634, 636 (Minn.1987); State v. Oquist, 327 N.W.2d 587, 590 (Minn.1982).

      . The Garza court also noted:
      The only expression of need for an unannounced search was in general terms, that “Persons involved in Drug trafficking will destroy evidence * * * [and] will use violence” with no factual nexus to particularized facts of dangerousness, futility or destruction of evidence related to the search of respondents’ residence. We conclude the evidence of drug trafficking in the affidavit does not meet the particularized circumstances standard in Richards and Was-son.

        Garza, 632 N.W.2d at 638 (alteration in original).


author: WILLIS, Judge.

text:
    ROOF DEPOT, INC., Respondent, v. Daniel W. OHMAN, Defendant, Joan Kay Vanderpool, Appellant.
    No. C5-01-1112.
    Court of Appeals of Minnesota.
    Feb. 6, 2002.

      Kay Nord Hunt, Ronald L. Haskvitz, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, for respondent.
    Mark M. Nolan, Stapleton, Nolan, MacGregor & Thompson, St. Paul, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by concluding that (1) her lien on defendant’s shares of stock was invalid and unenforceable and (2) respondent was not estopped from enforcing the stock-transfer restrictions. Because the district court did not err, we affirm.

FACTS

The facts in this case are undisputed. Respondent Roof Depot, Inc., is a closely held Minnesota corporation. Defendant Daniel Ohman is the former president of Roof Depot and the former husband of appellant Joan Vanderpool. During his marriage to Vanderpool, and while he was president of Roof Depot, Ohman acquired shares of stock in Roof Depot, Inc., and a related corporation, Roof Depot Supply, Inc. (“the Roof Depot Entities”).

In 1998, Vanderpool and Ohman’s marriage was dissolved. Under the marital-dissolution decree, Ohman retained all of his shares of stock in the Roof Depot Entities, and, to equalize the property division, Ohman was ordered to pay Vander-pool $150,000. The decree purported to secure Ohman’s debt to Vanderpool by a lien in her favor on Ohman’s stock in the Roof Depot Entities. The lien was to be created by filing a UCC-1 Financing Statement signed by Ohman. Vanderpool filed such a statement on November 2, 1999.

The certificates representing Ohman’s stock in the Roof Depot Entities bore legends stating that the certificates were subject to a Stock Restriction Agreement and a Shareholder Control Agreement, respectively, and that copies of the agreements were on file with the corporations. Both agreements restricted transfers of the stock represented by the certificates, including restrictions on pledging or encumbering the stock.

Ohman did not inform Vanderpool of the transfer restrictions before the dissolution decree was entered, nor did he comply with the terms of the transfer-restriction agreements: He did not notify Roof Depot of his intent to encumber his shares with a lien or obtain its consent, written or otherwise, to pledge or encumber his shares; he did not offer Roof Depot the opportunity to exercise its right of first refusal under the Stock Restriction Agreement; and, although not specifically addressed by the district court, nothing in the record suggests, and no party argues, that Ohman offered Roof Depot Supply the opportunity to exercise its similar right of first refusal.

In October 1999, Ohman was terminated by Roof Depot, based on allegations that he had wrongfully taken more than $1,000,000 from the corporation. Ohman entered into a restitution agreement with Roof Depot under which Ohman agreed to transfer back to the respective corporations his stock in the Roof Depot Entities. Ohman’s shares were redeemed and their value credited against his indebtedness to Roof Depot, leaving a remaining debt of $152,554.

In July 2000, Roof Depot sought a declaratory judgment, asking, inter alia, that Vanderpool’s purported lien against Oh-man’s shares in the Roof Depot Entities be held “invalid and unenforceable and/or inferior to the rights of [Roof Depot] in those shares.”

Vanderpool counterclaimed, seeking (1) declaratory judgment that her lien interest in the shares of Roof Depot was valid, enforceable, and superior to the interests of Roof Depot, Inc., and Roof Depot Supply, Inc., and (2) foreclosure on her lien interest and a deficiency judgment against Ohman for any remaining balanced owed.

Both Roof Depot and Vanderpool moved for summary judgment. The district court granted summary judgment in favor of Roof Depot, finding that Vanderpool’s lien on Ohman’s shares of stock was invalid and unenforceable and that Roof Depot was not estopped from enforcing the stock-transfer restrictions. This appeal follows.

ISSUES

I. Did the district court err by concluding that Vanderpool’s lien on Ohman’s shares of stock is invalid and unenforceable?

II. Did the district court err by concluding that Roof Depot is not estopped from enforcing the stock-transfer restrictions?

ANALYSIS

On appeal from summary judgment when the facts are undisputed, this court’s review is limited to determining whether the district court erred in its application of the law. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298 (Minn.2000).

I.

Vanderpool argues that the district court erred by concluding that her lien on Ohman’s shares of stock in the Roof Depot entities was invalid and unenforceable because the language of the transfer restrictions specifically provides that any transfer of the stock is merely subject to Roof Depot’s right of first refusal. Under Minnesota law and the language of the transfer-restriction agreements, Vander-pool’s argument fails.

Minnesota law allows transfer restrictions on securities as long as they are “not manifestly unreasonable under the circumstances” and are “noted conspicuously on the face or back of the certificate.” See Minn.Stat. § 302A.429, subd. 2 (2000). A restriction is conspicuous and effective if “the existence of the restriction is stated on the certificate and reference is made to a separate document creating or describing the restriction.” Minn.Stat. § 302A.429, subd. 2; see Minn.Stat. § 336.8-204 (2000) (providing that transfer restrictions are effective even as to persons without knowledge of restriction so long as notice appears conspicuously on the certificate).

Several types of restrictions are deemed “not manifestly unreasonable,” including (1) the requirement that a shareholder offer the company or other shareholders a right of first refusal, or option, before transferring the shares; (2) an obligation on a person to purchase shares so restricted; (3) a restriction requiring consent from the company or other shareholders before shares can be transferred or encumbered; and (4) any other restriction the purpose of which is to maintain control of a corporation by the same group of investors. See Minn.Stat. Ann. § 302A.429 advisory comm. cmt. (West 1985); see also Miller Waste Mills, Inc. v. Mackay, 520 N.W.2d 490, 494-95 (Minn.App.1994) (holding that stock-transfer restriction requiring stockholder to give corporation right of first refusal or option to purchase is not manifestly unreasonable), review denied (Minn. Oct. 14,1994).

Here, the stock certificates for Roof Depot, Inc., and Roof Depot Supply, Inc., bear conspicuous notices of the existence of transfer restrictions. Ohman’s stock certificate in Roof Depot, Inc., bears the following legend:

The transfer of the shares represented by the within certificate is restricted under the terms of a Stock Restriction Agreement dated as of the 2nd day of March, 1992.

The Stock Restriction Agreement includes the following transfer restrictions:

1. * * * The Shareholder shall not sell, assign, give, pledge, encumber or otherwise transfer, whether voluntarily, involuntarily, directly, indirectly, by operation of law or otherwise (hereinafter collectively referred to as “dispose of’), all or any part of his shares in the Corporation, or any interest in his shares, except under the following conditions:
a. If the Shareholder desires to dispose of his shares he must first obtain the written consent of the Corporation. * * *
b. In the absence of such written consent, the Shareholder shall not dispose of all or any part of his shares in the Corporation now owned or hereafter acquired by him without first offering the shares to be disposed of for sale to the Corporation * * *.
No attempted transfer of any shares in the Corporation not in accordance with the terms of this Agreement shall be reflected on the Corporation’s books.

Ohman’s certificate for stock in Roof Depot Supply, Inc., bears the following legend:

NOTICE, that these securities are subject to a Shareholder Control Agreement which is controlling over each Shareholder, beneficial holder, holder of a voting trust and their successors or assigns. A copy of said agreement may be found in the corporate record book or may be obtained by written request upon an officer thereafter within ten (10) days at the principle [sic] office of the Corporation.

The Shareholder Control Agreement referred to on the Roof Depot Supply, Inc., stock certificate provides, in part:

ARTICLE 3: Transfer Restrictions. No Shareholder shall, while this Agreement is in force, sell, assign, encumber, pledge or otherwise dispose of any shares of capital stock of the Corporation now owned or hereafter acquired by him, except in accordance with the terms of this Agreement.
* * * *
ARTICLE 7: Buy-Sell Agreement. In the event any holder of the capital stock of this Corporation desires to sell or dispose of his shares, or any portion thereof, or upon the death of any Shareholder, it is the purpose of this provision (a) to provide for the purchase by the Corporation of a stockholder’s shares should he desire to dispose of any of his stock in the Corporation during his lifetime, and (b) to provide for the purchase by the Corporation of a stockholder’s interest therein in the event of his death. * * *
Section 7.01: Inter Vivos Transfers. No shareholder shall, during his lifetime, transfer, encumber, give, pledge, assign, bequeath, sell or otherwise dispose of any portion or all of his stock interest in the Corporation whether voluntarily or involuntarily, directly or indirectly by operation of law, or otherwise, unless he shall first offer it to the Corporation at the price set forth in 7.04.

The stock certificates bear conspicuous notice of the existence of stock-transfer restrictions and refer to “separate documents] creating or describing the restriction.” See Minn.Stat. § 302A.429, subd. 2. Further, by requiring notice to and the consent of Roof Depot before a pledge, encumbrance, or other disposition of shares could be effective, and by giving the Roof Depot Entities a right of first refusal to purchase the shares, the restrictions are not “manifestly unreasonable” because they are reasonable means to ensure that the management and control of the business remains in the group of investors or with people well known to them. See Miller Waste Mills, 520 N.W.2d at 494-95.

In Castonguay v. Castonguay, 306 N.W.2d 143 (Minn. 1981), the Minnesota Supreme Court addressed the validity of a stock-transfer restriction in the context of a property award in a marital-dissolution decree. Castonguay involved a husband’s appeal in a marital-dissolution proceeding in which the district court awarded the wife one-half of the husband’s shares in the closely held corporation of which he was president. 306 N.W.2d at 144. The stock at issue was subject to transfer restrictions. Id. at 144r-45. The wife argued that, while the stock-transfer restrictions were valid, they did not apply where the transfer at issue was involuntary, i.e., pursuant to a court order. Id. at 145. The Minnesota Supreme Court held that “[r]e-strictions on the sale of corporate stock apply only to voluntary sales, and not to transfers by operation of law, in the absence of a specific provision to that effect.” Id. (emphasis added) (quotation omitted).

Here, both the Roof Depot, Inc., and the Roof Depot Supply, Inc., transfer-restriction agreements prohibit involuntary and voluntary transfers, directly or indirectly, by operation of law or otherwise. Oh-man’s stock was subject to these restrictions when he pledged or encumbered his stock to secure his debt to Vanderpool. Ohman did not give written notice to Roof Depot of his intent to pledge or encumber his shares, nor did he offer the Roof Depot Entities the opportunity to exercise their rights of first refusal to purchase the shares.

Because Ohman did not abide by the terms of the transfer-restriction agreements, a lien on Ohman’s stock was not created in Vanderpool’s favor. We conclude, therefore, that the district court did not err by concluding that Vanderpool’s lien was invalid and unenforceable.

II.

Vanderpool argues that if this court determines that her lien is invalid and unenforceable, then Roof Depot should be estopped from asserting any rights under the transfer-restriction agreements.

A party seeking to invoke the doctrine of equitable estoppel has the burden of proving that (1) promises or inducements were made; (2) the party reasonably relied upon the promises; and (3) the party will be harmed if estoppel is not applied. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn.1990).

Vanderpool argues that Ohman, as Roof Depot’s president, had apparent authority to act as an agent of the company and misrepresented to her that his shares of stock could be pledged as security for his debt to her. Vanderpool asserts that she never knew of the stock-transfer restrictions, that she relied on Ohman’s misrepresentations, and that she will be harmed if Roof Depot is not estopped from enforcing the transfer restrictions.

Apparent authority is usually based on an affirmative act of the principal. Va-cura v. Haars Equip., Inc., 364 N.W.2d 387, 391 (Minn.1985). It includes the following: (1) manifestation by the principal that another is its agent; (2) the person who deals with the supposed agent must know of these manifestations at the time of dealing; and (3) the manifestation of apparent authority must be by the principal’s actions, not the agent’s. See Truck Crane Serv. Co. v. Barr-Nelson, Inc., 329 N.W.2d 824, 826 (Minn.1983); Hockemeyer v. Pooler, 268 Minn. 551, 562, 130 N.W.2d 367, 375 (1964).

Here, there was no manifestation by Roof Depot that Ohman was acting as its agent when Ohman assigned his shares to Vanderpool. Although Ohman was president of Roof Depot, he was acting with respect to his own shares, not acting as a representative of Roof Depot. Ohman did not assign his shares in “the ordinary course of business” on behalf of Roof Depot. See Powell v. MVE Holdings, Inc., 626 N.W.2d 451, 455, 458-60 (Minn.App.2001) (holding that corporate president has apparent authority to enter into contract with an employee when the contract involves matters within the corporation’s ordinary course of business), review denied (Minn. July 24, 2001). We conclude that Roof Depot is not estopped from enforcing the transfer restrictions.

DECISION

Because the district court did not err by concluding that Vanderpool’s lien was invalid and unenforceable or by concluding that Roof Depot is not estopped from enforcing the stock-transfer restrictions, the district court did not err in granting summary judgment in Roof Depot’s favor.

Affirmed.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Antione NMN LEWIS, Appellant.
    No. C3-01-508.
    Court of Appeals of Minnesota.
    Feb. 12, 2002.

      Mike Hatch, Attorney General, Thomas Rolf Ragatz, Office of the Attorney General, St. Paul, and Roger S. Van Heel, Stearns County Attorney, St. Cloud, for respondent.
    Michael Clinton Davis, Special Assistant State Public Defender, St. Paul, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, HALBROOKS, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge.

Appellant Antione Lewis, appeals his conviction of felony drive-by shooting, contending that the evidence was insufficient to establish that he fired a firearm “having just exited from a motor vehicle.” In a supplemental pro se brief, Lewis also contends that (1) the district court abused its discretion in denying his motion for a change of venue; (2) his accomplice’s testimony was not sufficiently corroborated to support his conviction; and (3) he was denied the right to the effective assistance of counsel. Because we conclude that (1) the record contains sufficient evidence to support the jury’s finding that Lewis committed a drive-by shooting; and (2) Lewis’s pro se claims lack merit, we affirm.

FACTS

On March 7, 2000, a man with dark hair, wearing a dark, hooded sweatshirt jumped out of a brown mini-van that had just pulled into the parking lot at South Side Park, in St. Cloud. The man ran to the basketball court and began firing a small silver gun, and then the shooter ran back to the mini-van and left the park. Amy Brown, a park occupant, identified Lewis as the shooter. T.H., a passenger in the mini-van, also identified Lewis as the shooter. Varying accounts of Lewis’ acts were presented allowing the jury to determine how much time passed from the time Lewis got out of the mini-van to the time he starting shooting.

Lewis was charged with two counts of attempted murder in the first degree and six counts of assault in the second degree. The jury found him guilty of two counts of first-degree attempted murder, two counts of drive-by shooting under Minn.Stat. § 609.66, subd. 1(e) (2000), and five counts of second-degree assault. The trial court sentenced him to the presumptive 220 to 240 month sentence for the two attempted first-degree murder convictions, and to three 60 month terms for the second-degree assault convictions, the sentences to run concurrently.

ISSUES

I. Does the record contain sufficient evidence that Lewis discharged a firearm “having just exited from a motor vehicle” within the meaning of Minn.Stat. § 609.66, subd le (2000)?

II. Is the testimony of Lewis’ accomplice sufficiently corroborated to support Lewis’ conviction?

III. Did the trial court abuse its discretion by denying Lewis’s motion to change the venue?

IV. Did Lewis receive ineffective assistance of counsel?

ANALYSIS

I.

Sufficiency of Evidence

Lewis first argues that the evidence is insufficient to support his conviction of felony drive-by shooting because it does not establish that he discharged a firearm “while having just exited from a motor vehicle.” See Minn.Stat. § 609.66, subd. le (2000). Specifically, Lewis argues that the act of shooting was too remote from the act of exiting the vehicle to constitute a drive-by shooting within the meaning of Minn.Stat. § 609.66, subd. le.

When reviewing the sufficiency of the evidence to support a conviction, this court’s review is limited to “a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). And we will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of- the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Under Minnesota law, a person who “while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building” is guilty of felony drive by shooting. Minn.Stat. § 609.66, subd. le. Whether the evidence is sufficient to support Lewis’ conviction depends upon whether Lewis fired at people on the basketball court “having just exited from a motor vehicle” within the meaning of Minn.Stat. § 609.66, subd. le.

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). If the statutory language is plain and unambiguous, the court must give the language its plain meaning. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

The statute does not define the phrase “having just exited from a motor vehicle.” But the meaning of the phrase is clear and requires no interpretation. The dictionary defines the word “just” as “only a moment ago” American Heritage Dictionary, 979 (3d ed.1996). Accordingly the phrase “having just exited” means having exited “only a moment ago.” The phrase requires the completed act of exiting from a motor vehicle followed closely by the act of shooting. In applying the plain meaning of the statute, we construe the phrase “having just exited a motor vehicle” as requiring the immediate action of shooting following the exiting from an automobile.

Lewis argues the act of shooting must occur simultaneously with the act of exiting. However, Lewis’ interpretation of the phrase is implausible because it is contrary to the plain meaning and is impossible to execute.

The record amply supports the jury’s finding that Lewis drove up to the park, jumped out of a brown mini-van, ran to the occupied basketball court and began shooting within one to two minutes from the time he exited the mini-van. He then retreated to the vehicle and drove away. Angela Barrett, who was near the volleyball courts at the time of the shooting, testified that the shooter, carrying a small silver gun, ran from a brown mini-van in the parking lot and began shooting. Amy Brown testified that after a brown minivan pulled up in the park parking lot, Lewis jumped out and ran to the basketball court in a matter of one or two minutes. Aaron Larson, a basketball player, testified that a man wearing a hooded sweatshirt ran from the playground onto the court, fired a gun, and then ran back to a mini-van in the parking lot.

The plain meaning of “just exited” indicates that the act of shooting must immediately follow the act of exiting an automobile. See Minn.Stat. § 609.66, subd. le. Viewing the evidence in a light most favorable to the state, the testimony that Lewis ran from the mini-van to the basketball court, and opened fire, then returned to the mini-van and drove away, is more than sufficient to support the jury’s finding that Lewis engaged in a felony drive by shooting as defined in Minn.Stat. § 609.66, subd. le.

II.

In a pro se supplemental brief Lewis argues that (1) his accomplice’s testimony was not sufficiently corroborated to support his conviction; (2) the trial court abused its discretion by denying his motion for a change of venue; and (3) he was deprived of the effective assistance of counsel.

Accomplice Testimony

Lewis first argues that the trial court erred in admitting the accomplice testimony of T.H. because it lacked sufficient corroboration. We review the sufficiency of the evidence corroborating an accomplice’s testimony in the light most favorable to the state, and resolve all conflicts in the evidence in favor of the verdict. State v. Hooper, 620 N.W.2d 31, 39 (Minn.2000). Corroborative evidence must be “weighty enough to restore confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial way.” Id. (quoting State v. Norris, 428 N.W.2d 61, 66-67 (Minn.1988)). Corroborative evidence “may be secured from * * * the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.” State v. Adams, 295 N.W.2d 527, 533 (Minn.1980) (citation omitted).

T.H. testified that he was with Lewis in the park prior to the shooting, when Lewis got into an argument with a man in a white car. Lewis and T.H. left the park in a brown mini-van and drove to a nearby home. Lewis entered the home and emerged a few minutes later with a gun wrapped in a towel. Lewis then drove back to the park. After entering the parking area, Lewis got out of the mini-van and proceeded to the basketball court. He pulled the hood of his sweatshirt up and began shooting. After several gunshots, Lewis ran back to the mini-van and left the park. Lewis handed T.H. the gun and told him to take care of it, so T.H. hid the gun in the back of the toilet at his girlfriend’s house. The police later recovered the gun and matched it to the shell casings at the park.

T.H.’s testimony was sufficiently corroborated by much of the evidence presented at trial. Several witnesses testified that the shooter was wearing a dark hooded sweatshirt; that he ran from a brown mini-van to the basketball court on South Side Park and began shooting. Police recovered a blue and black hooded sweatshirt from a car Lewis was arrested in near the park following the shooting. Three witnesses testified that after shooting, the shooter ran back to the mini-van he had exited from and drove away. The evidence viewed in the light most favorable to the state sufficiently corroborates T.H.’s testimony and points to Lewis’s guilt in a substantial way.

Motion to Change Venue

Lewis next argues that because local newspaper and radio stations covered news of the shooting and referred to Lewis as having gang affiliation, the trial court abused its discretion in denying his motion for a change of venue.

The trial court denied Lewis’s motion finding that it was impossible to determine the impact of the local news stories on the jury pool before voir dire. But the court indicated that Lewis could renew his motion if the voir dire indicated that bias was present. Lewis made no further motions on the issue.

Trial courts have wide discretion in deciding motions for a change of venue. State v. Fratzke 354 N.W.2d 402, 406 (Minn.1984). The denial of a motion for a change of venue will be sustained absent a clear abuse of discretion. Id. An abuse of discretion occurs when the evidence is such that “a real possibility exists that a jury will not render an unprejudiced or unbiased verdict.” State v. Webber, 292 N.W.2d 5, 12 (Minn.1980) (quoting State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973)).

The rules of criminal procedure require that a change of venue motion be granted when “the dissemination of potentially prejudicial material creates a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.” Minn. R.Crim. P. 25.02, subd. 3. Widespread publicity alone does not mandate a change of venue. Fratzke, 354 N.W.2d at 406. Instead, the question is whether the publicity is “prejudicial to the defendant and whether it affects the minds of the specific jurors involved in the case.” Id. Factual news reports are insufficient to establish prejudice. State v. Salas, 306 N.W.2d 832, 835 (Minn.1981). Opinions or implications of the defendant’s guilt are required instead.

The record contains press releases about the shooting published in the local paper and copies of the story read on a local radio station. The newspaper article is based upon the criminal complaint. It identified Lewis as the party charged, but it contained no opinions or implications as to his guilt. The radio story contained repeated references to a gang-related shooting, but did not refer to Lewis as affiliated with a gang or contained “damaging opinions of public officials” who directly implicated Lewis. Id. In the absence of other evidence of prejudice, the exposure of some jurors to news reports before trial, does not establish “that the jury was biased.” See id. at 836.

Because the record contains no evidence that the pretrial publicity prejudiced Lewis, the trial court did not abuse its discretion in denying Lewis’s motion for change of venue.

Assistance of Counsel

We defer Lewis’ claim of ineffective-assistance of counsel to allow Lewis to raise it in a post-conviction petition. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000).

DECISION

The evidence supports the jury’s finding that Lewis discharged a firearm “having just exited a motor vehicle.” The trial court did not abuse its discretion by admitting accomplice testimony and did not err in denying appellant’s motion to change venue. Finally, appellant’s ineffective assistance of counsel claim is deferred.

Affirmed.