author: HUDSON, Judge. WORKE, Judge

text:
    Kelly Eve BROWN, Appellant, v. CITY OF BLOOMINGTON, et al., Respondents.
    No. A04-2221.
    Court of Appeals of Minnesota.
    Dec. 6, 2005.

      Albert T. Goins, Sr., Joanna L. Wool-man, Goins & Wood, P.C., Minneapolis, MN, for appellant.
    Jon K. Iverson, Jason J. Kuboushek, Iverson Reuvers, LLC, Bloomington, MN, for respondents.
    Considered and decided by WORKE, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant Kelly Eve Brown challenges the district court’s grant of summary judgment in favor of respondents in appellant’s action for damages after being shot by a police officer who was responding to appellant’s 911 call. Appellant contends that the district court erred in finding that the officer was entitled to official immunity because: (a) the officer’s acts were ministerial and not discretionary; and (b) there were disputed factual issues surrounding the immunity determination. We affirm in part, reverse in part, and remand for further proceedings on the remaining issues.

FACTS

In December of 2000, Bloomington police responded to a 911 call from appellant Kelly Eve Brown, who was threatening to cut the throat of a man at her residence. Brown suffers from clinical depression, and on the date in question she was not medicated and had been drinking. After two officers arrived at the scene and approached the residence, Brown continued to threaten the man and also threatened an officer who had reached the door. The man was able to leave the residence after which Brown threatened to cut her own throat. Other officers arrived and set up a perimeter around the residence. For several minutes, the officers attempted to talk with Brown and calm her down.

The officers at the scene determined that the situation called for the use of “less-lethal” or beanbag ammunition and broadcast a request via police radio for the next responding officers to bring less-lethal ammunition to the scene. Officer Daniel Duerksen heard the request and stated he would bring the less-lethal ammunition. On arrival, he unloaded lethal ammunition from his shotgun. Officer Duerksen showed a less-lethal shell to one of the other officers on the scene, who confirmed it as such; Duerksen then chambered the less-lethal shell. Officer Duerksen then loaded, or “topped off,” the shotgun with two more shells from a sleeve on the side of the weapon. Officer Duerksen intended to load less-lethal shells and believed these were less-lethal shells, but they were, in fact, lethal slug rounds. Less-lethal ammunition was stored in a separate sleeve on the stock of the weapon, pursuant to department practice. According to Officer Duerksen’s deposition testimony, he had received departmental training for a safe procedure for employing less-lethal ammunition prior to this incident, and his training suggested that the transition from lethal to less-lethal ammunition be made “away from the area where the incident was taking place.”

By this time the officers had backed away from the door and were standing approximately ten feet from the bottom step of the residence as Brown exited the residence, holding a knife to her throat. She did not comply with commands to drop the knife, and Officer Duerksen fired the first shot. The first round, which was the less-lethal round, struck Brown in the right leg. But because Brown did not immediately drop the knife, Officer Duerk-sen fired a second round — a lethal slug— which caused severe injury to Brown’s left thigh.

Brown was charged with assault and subsequently acquitted. She sued the City of Bloomington, its police chief, and the officers present at the scene in federal court claiming, inter alia, assault, battery, intentional infliction of emotional distress, and negligence. The federal district court dismissed with prejudice all civil-rights claims based on 42 TJ.S.C. § 1988 (2000), and Brown filed the remaining claims in state court.

Following further discovery, respondents moved for summary judgment and the district court granted the motion. The district court held that individual respondents were entitled to official immunity for their actions, respondent City of Blooming-ton was entitled to statutory immunity and vicarious official immunity, and that Brown had not established a human-rights claim under MinmStat. § 363.03, subd. 4(1) (2004). This appeal follows.

ISSUES

I. Did the district court err in determining that the officer’s actions were discretionary and not ministerial and thus entitled to official' immunity?
II. Did the district court err by resolving disputed material facts relevant to its determination of immunity?

ANALYSIS

On an appeal from summary judgment, we determine “whether there are genuine issues of material fact and whether the district court erred in applying the law.” Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn.1996). Summary judgment is appropriate when a governmental entity has established that its actions are immune from civil liability. Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App.1995). The issue of whether immunity applies is a legal question subject to de novo review. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.1998). The burden of proof that immunity applies is on the party claiming immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997).

I

Official immunity is a common-law doctrine intended to protect government officials from suit for discretionary actions taken in the course of their official duties. Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn.2004). An official given a legal duty which calls for an exercise of judgment or discretion will not be held personally liable for damages resulting from execution of the duty unless he is guilty of a willful or malicious wrong. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn.1988).

Generally, police officers are classified as discretionary officers entitled to official immunity. Johnson v. Morris, 453 N.W.2d 31, 41-42 (Minn.1990); see also Elwood, 423 N.W.2d at 678 (stating that police responding to emergencies such as domestic disputes “are afforded a wide degree of discretion precisely because a more stringent standard could inhibit action”). A discretionary decision requires professional judgment to balance multiple factors, while a ministerial decision is absolute, certain, and involves the mere execution of a specific duty under designated facts; official immunity is not available when an officer is exercising a ministerial duty. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315-16 (Minn.1998); see also Watson, 553 N.W.2d at 414. The district court determined that official immunity applied because even though an officer mistakenly loaded a less-lethal round, the officers were responding to a volatile, unpredictable domestic situation in which they constantly exercised their judgment, including their decision on whether to use force, and the degree of force to be used.

“Whether official immunity applies requires the court to focus on the nature of the particular act in question.” Johnson, 453 N.W.2d at 42. Respondents characterize the challenged conduct as the officers’ collective response to a volatile and unpredictable domestic situation. Brown, on the other hand, characterizes the challenged conduct much more narrowly; specifically, Officer Duerksen’s misloading of his shotgun with lethal instead of nonlethal ammunition. We conclude that Brown’s characterization more accurately pinpoints the particular act to be examined in the analysis of whether official immunity applies.

‘When the job is simple and definite,” as when a public official has a clear “duty to adhere to ordinances and statutes,” the official is not entitled to immunity. Wiederholt, 581 N.W.2d at 316; see also Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn.2004) (“The ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently.”). But, a duty need not be imposed by law for us to construe it as ministerial. Anderson, 678 N.W.2d at 659. “[T]here is no logical reason that a sufficiently narrow standard that does not meet an ‘imposed by law criterion should not similarly make the conduct ministerial if the employee is bound to follow the standard.” Id. (finding ministerial duty where teacher’s conduct was governed by “department protocol”).

We acknowledge that Officer Du-erksen loaded his shotgun in response to an evolving, volatile circumstance and that police responses in emergency situations have generally been afforded official immunity. See Elwood, 423 N.W.2d at 678 (stating that police officers, being charged with the duty to prevent crime and enforce the laws, are not purely “ministerial officers,” in that many of their duties are of an “executive character involving the exercise of discretion”) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). When an official must make decisions with little time for reflection and on the basis of incomplete information, “[i]t is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required.” Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn.1992). For this reason, we agree with the district court that the decisions whether to use less-lethal ammunition and to fire more than one round were discretionary decisions entitled to official immunity.

But those decisions are not the particular act challenged. The particular act is not whether less-lethal ammunition should have been used or whether Officer Duerksen should have only fired one shot. Rather, the particular act at issue is the loading of less-lethal shells into a shotgun and whether that act calls for the exercise of independent judgment and discretion. We conclude that it does not. There is no discretion involved in loading less-lethal shells into a shotgun; it is a ministerial act. Officer Duerksen acknowledged in his deposition that he erred in not removing the lethal rounds from the sleeve of the shotgun:

Q. You realize that you made an error when you didn’t take all the slug rounds out, correct?
A. I did not remove all the slug rounds from the side carrier of the shotgun that night.
Q. That’s what you intended to do, correct?
A. It was my intention to completely remove all the rounds of lethal ammunition from that shotgun. ■
Q. Did that intention ever change up until the time that you shot Kelly Brown?

A. No, it did not. Just so I’ve— Likewise, Officer Duerksen acknowledged that he exercised no discretion or judgment in retrieving and loading the gun:

Q. When you go retrieve a less lethal shotgun at the request of Officer Taylor, you’re not exercising a tactical judgment or discretion at that time, are you?
A. No. If he calls for it, if that’s what he needs I am going to help him and grab it.
Q. Right. If he expects you to come back with a less lethal shotgun, you’re not going to come back with a shotgun loaded with lethal slug rounds, are you?
A. He requested something and I did what he asked where I grabbed the weapon that had the less lethal rounds on it.

Moreover, the existence of a department procedure for loading the shotgun underscores that Officer Duerksen’s actions in this instance were ministerial. Officer Du-erksen admitted in his deposition that he did not follow a Bloomington Police Department procedure for making the transition from lethal to less-lethal ammunition. Because there was no discretion involved in loading less-lethal ammunition and because a narrow standard on how to load less-lethal ammunition existed, we conclude that Officer Duerksen was performing a ministerial duty and is not entitled to the protection of official immunity from civil liability.

When a public official is entitled to official immunity, a municipal employer is often extended vicarious official immunity also. See id. at 42. But when, as here, we conclude that the official (Officer Duerk-sen) is not entitled to official immunity, vicarious official immunity will not protect respondent City of Bloomington. See Wiederholt, 581 N.W.2d at 316 (holding that because a city inspector was not entitled to official immunity, the city was not entitled to vicarious official immunity).

We therefore reverse the district court’s grant of summary judgment solely with respect to Officer Duerksen and the City of Bloomington’s liability in tort and negligence, and remand for further proceedings. However, because the court properly determined the decisions of the other officers at the scene were discretionary and protected by official immunity and that Brown had not established a human-rights claim under Minn.Stat. § 363.03, subd. 4(1) (2004), we affirm the district court’s grant of summary judgment on the remaining claims.

II

Brown also contends that the district court’s grant of summary judgment was inappropriate because factual disputes remained “regarding respondents’ negligence.” She does not argue that the district court resolved factual issues regarding respondents’ immunity but rather that a jury should decide if Officer Duerksen’s alleged negligence harmed her. The record does not support Brown’s contention that any of the officers’ actions were willful or malicious, and the district court stated that she had failed “to present specific facts showing that the officers acted with malice or bad faith.” Brown admitted that Officer Duerksen’s firing of “the bean bag [round] was fair ... because of me trying to hurt myself.” While she also stated that she felt the firing of the second round was “malicious,” a plaintiff “may not rely on ‘bare allegations of malice’ to defeat a summary judgment, but must present specific facts evidencing bad faith.” Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn.App. 1990) (quotation omitted), review denied (Minn. Feb. 28, 1990).

The district court did not resolve whether Officer Duerksen acted negligently or recklessly; the question before it was respondents’ immunity and the facts that were relevant to that assessment. In light of our conclusion that Officer Duerksen was not entitled to official immunity, we simply reiterate our holding that Brown’s remaining tort and negligence claims are remanded to the district court for further proceedings.

DECISION

Because the loading of less-lethal ammunition into a shotgun is a ministerial act, a police officer is not entitled to official immunity for performing that act. Accordingly, the district court erred in granting summary judgment based on official immunity in favor of respondents Duerksen and City of Bloomington.

Affirmed in part, reversed in part, and remanded.

WORKE, Judge

(dissenting).

I concur with the majority on all issues presented, with the exception of the con-elusion that denies Officer Duerksen and the City of Bloomington official immunity from suit. On that issue, I respectfully dissent.

The majority’s analysis focuses solely on the act of loading a shotgun. This narrow focus fails to consider the nature of the act leading up to and resulting in deployment of less-lethal and lethal rounds, i.e., Duerk-sen’s exercise of judgment in deciding whether to use force, and the degree of that force. In my opinion, his acts are discretionary and immune from suit.

In determining whether an act is discretionary or ministerial “the crucial focus is upon the nature of the act.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988). As recognized by the district court, police officers who often work in uncertain circumstances generally act discretionarity. They are afforded “a wide degree of discretion precisely because a more stringent standard could inhibit action.” Elwood, 423 N.W.2d at 678.

In its findings of fact, incorporated from the federal proceedings, the district court properly applied the facts of the defendant-officers’ actions in responding to a rapidly changing, dangerous circumstance of a unique domestic-abuse situation. The district court noted that Duerksen arrived at Brown’s residence within four minutes of the emergency 911 call, unloaded his shotgun while walking up to the residence, loaded a confirmed less-lethal round, and then loaded two slug rounds “thinking they were less-lethal rounds.” When Brown did not comply with the command to drop the knife, Duerksen fired twice in rapid succession, the second shot coming as she was falling and dropping the knife. The district court stated that Duerksen was aware of the 21-foot zone in which a knife-wielding suspect could stab another person and “[t]he fact that one round was not less-lethal [did] not alter [its] analysis.” The emergency nature of the specific act of loading the shotgun — not the act itself but its quality' — was properly characterized by the district court as part of a “response to a highly volatile and unpredictable domestic situation.”

Duerksen’s incorrect loading of the shotgun certainly seems to have been negligent. But the simplicity of this specific action is not what we must consider. In considering whether he was performing a ministerial duty or exercising discretion, we must conclude that he was properly exercising his judgment and this was a proper exercise of his discretion. Duerk-sen was responding to a request, not a command or order, of a fellow officer. Per his training he certainly at that time could have exercised his discretion not to comply with the request. The request clearly cannot be what makes his actions ministerial, and the majority incorrectly concludes that a Bloomington Police Department procedure rigidly guided Duerksen’s hand.

The Bloomington Police Department’s use-of-force policy states that an officer shall have discretion to use less-lethal force, but does not govern the loading of a firearm. In his affidavit testimony, Du-erksen described the department’s procedure for implementing less-lethal ammunition not as a “policy” but as a part of his training. He also stated that it was a department “suggestion” that he transition from lethal to less-lethal rounds at a location away from the incident. “Suggestion” indicates that he had discretion as to when he should implement that change. Duerk-sen clearly states that he did rely on his training in loading the shotgun, the umbrella of training that he and his fellow officers received for responding to such emergencies: “I went back to what they call relying on training where you don’t think about what you do, you just act.” Given the intensity of Duerksen’s situation, we should expect an officer to rely on his training, even when that path precedes the mistake of extracting rounds from the wrong sleeve on the shotgun.

Our caselaw strongly favors immunizing the actions of civil servants in emergency situations. Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn.App.1994) (“An officer responding to a report of an armed person threatening the life of a neighbor must weigh many factors and exercise significant independent judgment and discretion.”), review denied (Minn. July 27, 1994). It is a tragedy whenever any citizen must confront such circumstances. While it is especially tragic that Kelly Brown was wounded during the response, the law provides official immunity from suit in an emergency situation that requires protection of the public from imminent harm. This sound jurisprudence encourages an officer’s mindful implementation of the tools and strategies designed to avert such tragedies. Citizens are afforded a reliable safeguard in the denial of immunity to an officer whose actions are willful or malicious. Elwood, 423 N.W.2d at 678.

The decision to use force, whether lethal or non-lethal, is probably the gravest discretion an officer must exercise. I do not see the sense of reintroducing the specter of liability to cloud an officer’s judgment once that decision is implemented. If Du-erksen subsequently erred by misloading the shotgun, as found by the district court, we should not, as a society, hold him civilly liable in any capacity for that error. Accordingly, I would affirm the district court’s grant of summary judgment.

      . Brown does not challenge on appeal the district court’s grant of statutory immunity to respondents, so we do not address it here.

      . Because we conclude that the officer had a ministerial duty to properly load his shotgun, we do not reach the issue of whether his actions were willful and malicious.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    In the Matter of the CIVIL COMMITMENT OF Elliott CARROLL.
    No. A05-1019.
    Court of Appeals of Minnesota.
    Dec. 6, 2005.

      Donald R. Betzold, Brooklyn Center, MN, for appellant Carroll.
    Amy Klobuehar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, Minneapolis, MN, for respondent petitioner.
    Considered and decided by TOUSSAINT, Chief Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

The district court committed appellant Elliott Carroll to the Minnesota Security Hospital for an indeterminate period as mentally ill and dangerous. On appeal, he argues that he did not commit an overt act causing or attempting to cause serious physical harm to another and that the 60-day treatment report was not proper because it was not prepared by a member of his treatment team. Because Carroll engaged in overt acts causing or attempting to cause serious physical harm to others, and because the head of the treatment facility properly delegated the task of preparing the treatment report, we affirm.

FACTS

Carroll, born in 1971, has a history of psychiatric treatment that began in 1991. Since then, he has been repeatedly committed as mentally ill, followed by provisional discharges that were revoked or by new petitions for commitment as mentally ill. Upon release from confinement, he has had a pattern of stopping his medication, consuming alcohol or street drugs, and engaging in threats or assaultive behavior.

Carroll was most recently recommitted as mentally ill in November 2003, and he agreed to the order extending authorization for administration of neuroleptic medication. He was provisionally discharged on November 5, 2003, but, after he failed to take his medication and threatened to kill his sister, his provisional discharge was revoked on September 2, 2004. On September 23, 2004, he was again provisionally discharged. On October 18, 2004, ease-management staff visited Carroll’s apartment and observed broken windows; Carroll also threatened a juvenile female, whom he had accused of stealing money. Carroll’s sister received reports of these difficulties. She called his nurse and also asked the police to check his condition. The police brought him to a crisis center.

On October 19, 2004, while at the crisis center, Carroll assaulted two mental-health workers after his repeated requests to smoke had been denied. He first hit a mental-health worker in the eye. After calling for security, a senior psychiatric social worker grabbed a cushion to put between Carroll and the other worker; he then used the cushion to block a chair that Carroll had picked up. Carroll hit the mental-health worker again in the mouth and nose, causing him to crumple to the floor and to require treatment in an emergency room. Carroll then punched the social worker in the left temple with a closed fist, knocking his glasses off. Security arrived, and Carroll was secluded, restrained, and given emergency medications. A petition for his commitment as mentally ill and dangerous was filed.

A staff psychiatrist at the Hennepin County Medical Center (HCMC) diagnosed Carroll with schizophrenia. He noted that Carroll has a longstanding history of aggression when refused a cigarette, money, or other things he requests. Besides the recent incidents in the hospital, the HCMC psychiatrist noted that Carroll assaulted a doctor and a nurse in Anoka in 2000 when he was not allowed to have a cigarette. He assaulted his sister when he wanted money from her, and he assaulted and threatened others. Carroll also attacked his mother with a board and, in another incident, assaulted her. The HCMC psychiatrist noted that he himself had been assaulted in 1998 by Carroll, who threw a food tray at him, bruising his jaw, when he refused Carroll’s request for a pass.

The HCMC psychiatrist testified that Carroll had engaged in acts capable of causing serious physical harm to others. The injury to the mental-health worker could have been substantial, ranging from a hemorrhage on the retina to a detached retina. Carroll’s blow to the HCMC psychiatrist in 1998 was hard enough that it could have fractured a jaw. Carroll’s attacks on his mother resulted in lacerations. His assault on the nurse in Anoka broke her glasses, resulting in lacerations, and the physician whom Carroll assaulted was seen in the emergency room. The HCMC psychiatrist found a very high likelihood that Carroll would continue to engage in acts capable of creating a serious risk of harm to others and recommended his commitment to the Minnesota Security Hospital.

A court-appointed examiner diagnosed Carroll with schizoaffective disorder and supported his commitment as mentally ill and dangerous. Carroll’s sister testified that she believes that treatment for mental illness and chemical dependency is necessary, but she does not believe that he poses a danger to the public by his assaul-tive behavior.

The district court committed Carroll to the Minnesota Security Hospital as mentally ill and dangerous, and a review hearing was held. A psychologist employed by the State Operative Forensic Service (SOFS) testified. After conducting interviews with Carroll, reviewing his records, and holding discussions with staff, the psychologist prepared the 60-day treatment report submitted by the security hospital. In analyzing Carroll’s dangerousness, the psychologist testified that the most significant factors were Carroll’s history of aggressive behavior, substance abuse, lack of appreciation of his behavior, and lack of remorse. He recommended continued treatment at the Minnesota Security Hospital.

The SOFS psychologist also testified that, although he wrote the treatment report, he is not a member of Carroll’s treatment team and did not participate in the treatment program. He is employed not by the security hospital, but by SOFS, which specializes in evaluations of mentally ill and dangerous commitments, competency to stand trial, and criminal responsibility. The psychologist explained that a treatment psychologist and psychiatrist and an evaluation psychologist and psychiatrist perform separate functions and that it is unethical to treat a person and then provide the forensic opinion. Carroll moved to disallow the psychologist’s report as improper under the statute because it was not prepared by his treatment team. The district court denied the motion.

Carroll’s sister testified that, if Carroll were committed only as mentally ill, he could live with her after he was released. She was not concerned that he was dangerous, did not believe he had a mental illness, and did not believe that the medication was curing any mental illness. Carroll testified that he does not want to be at the hospital, but he accepts that he has an illness and needs medications.

The district court made Carroll’s commitment as mentally ill and dangerous indeterminate, and this appeal followed.

ISSUES

I. Did Carroll engage in an overt act causing or attempting to cause serious physical harm to another, as required for commitment as mentally ill and dangerous under Minn.Stat. § 253B.02, subd. 17 (2004)?

II. Was the 60-day treatment report improper because it was not prepared by a member of Carroll’s treatment team?

ANALYSIS

I.

On appeal, this court will examine whether the commitment is justified by the findings based on the evidence at the hearing. In re Knops, 536 N.W.2d 616, 620 (Minn.1995). “The record is viewed in the light most favorable to the trial court’s decision.” Id. (citation omitted). Findings of fact will not be set aside unless clearly erroneous, with due regard given to the court’s judgment of the credibility of the witnesses. Id.; Minn. R. Civ. P. 52.01. Whether the evidence is sufficient to support a finding that an overt act has occurred is a legal question subject to de novo review. Knops, 536 N.W.2d at 620. To commit a person as mentally ill and dangerous, the district court must find by clear and convincing evidence that the person is mentally ill and that

as a result of that mental-illness presents a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm, to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.

Minn.Stat. § 253B.02, subd. 17 (2004) (emphasis added). These statutory requirements are interpreted strictly. Knops, 536 N.W.2d at 620.

The supreme court has cautioned that courts must pay due respect to the difference between the less-serious conduct required for commitment as mentally ill and the more-serious conduct required for indeterminate commitment as mentally ill and dangerous. In re Kottke, 433 N.W.2d 881, 884 (Minn.1988). Commitment as mentally ill requires a showing only of “a substantial likelihood of physical harm to self or others,” as demonstrated by a failure to obtain necessities or “a recent attempt or threat to physically harm self or others.” Minn.Stat. § 253B.02, subd. 13(a), (3) (emphasis added). In contrast, commitment as mentally ill and dangerous requires a showing of “a clear danger to the safety of others,” as demonstrated by a showing that “the person has engaged in an overt act causing or attempting to cause serious physical harm to another,” and is substantially likely to do so in the future. Minn.Stat. § 253B.02, subd. 17(b) (emphasis added). The person’s intent or the outcome of the action is not relevant to the determination of whether the conduct meets the overt-act requirement. In re Jasmer, 447 N.W.2d 192, 195-96 (Minn.1989). Further, it is not necessary that “mayhem or murder” occur, and less violent conduct may meet the statutory requirement. Kottke, 433 N.W.2d at 884.

The district court found that Carroll was diagnosed with schizophrenia. It ruled that Carroll presented a clear danger to the safety of others, as demonstrated by the fact that he engaged in overt acts causing or attempting to cause physical harm to another, based on the October 18, 2004, unprovoked assaults and the altercation at his apartment with a juvenile female, in which he accused her of stealing his money, along with his history of violent behavior. Finally, the district court ruled that Carroll was rated as being very likely to be dangerous in the future.

Carroll argues only that the assaults did not constitute overt acts causing or attempting to cause serious physical harm to another. He contends that he merely lifted a chair and put it down and struck two staff members, neither of whom suffered personal injury. He asserts that his conduct did not inflict and was not intended to inflict serious physical harm of the type contemplated by the statute. Further, he argues that other assaults referred to in the record should be given limited evidentiary weight because of the limited information available and their remoteness in time.

In Kottke, the supreme court ruled that Kottke’s “conduct, intolerable as it was, neither inflicted nor was intended to inflict the serious physical harm of the type contemplated by the statute.” Kottke, 433 N.W.2d at 884. On two occasions, Kottke had struck security personnel, once leaving red knuckle marks and once causing the person to fall and sprain a thumb. Id. at 882. Kottke was described as “extremely mild-mannered,” and his assaults were described as striking out “in a rather ineffectual way.” Id. at 883. He had no history of similar behavior. Id.

In contrast, as the district court found, Carroll’s records were “replete with documentation of violent outbursts and physical assaults, which he shows not the slightest interest or capability of managing,” including the October 18, 2004, incident and the other incident already described. The district court found that the fact that Carroll “has not so far managed to inflict serious and permanent injuries upon any of his victims is a matter of luck and not for lack of intent.” The findings as to the other assaults are supported by clear and convincing evidence.

Kottke is clearly distinguishable. Carroll’s acts of violence against the hospital mental-health worker and the social worker, along with his history of violence, show that he committed overt acts causing or attempting to cause serious physical harm to another.

II.

Minn.Stat. § 253B.18, subd. 2(a) (2004), provides that “a written treatment report shall be filed by the treatment facility.” Carroll argues that the report prepared by a SOFS psychologist did not meet this requirement because the psychologist was not a member of Carroll’s treatment team. But after Carroll’s arrival at the Minnesota Security Hospital, he was “under the control and custody of the head of the treatment facility.” Minn.Stat. § 253B.10, subd. 1 (2004). “Head of the treatment facility” is defined as “the person who is charged with overall responsibility for the professional program of care and treatment of the facility or the person’s designee.” Minn.Stat. § 253B.02, subd. 8 (2004) (emphasis added). The SOFS psychologist was a designee; his preparation of Carroll’s treatment report did not violate Minn.Stat. § 253B.18, subd. 2(a).

DECISION

The district court’s decision committing Carroll for an indeterminate period as mentally ill and dangerous is affirmed. The district court properly considered a treatment report prepared by a designee of the head of the treatment facility.

Affirmed.


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Appellant, v. Amy Susan McGRATH, Respondent, Julius Anthony Nolen, Respondent, Laura Ann Nolen, Respondent.
    Nos. A05-1021, A05-1022, A05-1023.
    Court of Appeals of Minnesota.
    Dec. 6, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, and Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Shakopee, MN, for appellant.
    Mark D. Nyvold, St. Paul, MN, for respondent McGrath.
    Richard A. Enga, Taylor Law Firm, Minneapolis, MN, for respondent Julius Nolen.
    Robert M. Paule, Minneapolis, MN, for respondent Laura Nolen.
    Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant State of Minnesota challenges the district court’s suppression of evidence seized during a search of respondents’ home. Appellant contends that the district court erred when it determined that the affiant’s omission from the search-warrant affidavit of an informant’s extensive criminal history and pending criminal charges, along with the affiant’s characterization of the informant as a “concerned citizen,” constituted reckless misrepresentations of fact that were material to the finding of probable cause. Appellant also challenges the district court’s determination that marijuana residue found in plastic bags recovered during three searches through garbage left for pickup at the curb near respondents’ home failed to establish an independent basis for probable cause because it was merely evidence of the residents’ personal use of marijuana. We reverse and remand for further proceedings.

FACTS

On September 23, 2004, Sgt. Fossum of the Minneapolis Police Department conducted a custodial interview of Gary Buckner, a suspect in a series of armed robberies of local pharmacies. During the interview, Buckner admitted committing seven armed robberies in the Twin Cities area. In each robbery, Buckner sought OxyContin tablets for his personal use.

After discussing the robberies, Buckner was asked to identify associates who also were engaged in criminal activity. Among a small number of associates, Buckner implicated respondent Amy McGrath, Michael Ruprecht, and their friend “Laura” who was “one of the prosecuting attorneys in Minneapolis.” Buckner characterized McGrath and Ruprecht as cocaine dealers. Buckner stated that he had seen “Laura” use cocaine on multiple occasions between December 2003 and June 2004, a period during which he was renting a room in the basement of the residence of McGrath and Ruprecht. “Laura” was later identified as respondent Laura Nolen.

Sgt. Fossum contacted Det. Skorczewski of the Scott County Sheriffs Office to conduct an investigation so as to avoid a conflict of interest for police officers who had worked with Laura Nolen and her husband, respondent Julius Nolen, who was an Assistant Hennepin County Attorney. On September 27, 2004, Det. Skorczewski interviewed Buckner. This interview focused primarily on the drug-dealing activities of McGrath and Ruprecht. Buckner stated that he had witnessed Laura Nolen using cocaine six to eight times over the six-month period when he lived at the McGrath-Ruprecht residence. Buckner admitted that, although he had not seen Laura Nolen purchase cocaine, it was clear to him that she was buying cocaine from McGrath. Buckner last saw Laura Nolen use cocaine in June or July 2004, shortly before he was forced to move out of the McGrath-Ruprecht residence.

Under the supervision of Det. Skorezew-ski, Buckner conducted a controlled buy of cocaine at the McGrath-Ruprecht residence. McGrath, Pamela Lazor, and Laura Nolen were present at the residence when Buckner arrived. The three women left when Ruprecht arrived at the residence, and the controlled buy of cocaine between Buckner and Ruprecht occurred after the women’s departure.

On November 1, 8, and 15, 2004, Sgt. Fossum conducted searches of the garbage set out at curbside for weekly pickup at the Nolen residence. During the November 1 search, Sgt. Fossum located a plastic bag that he believed smelled of and contained traces of marijuana. The November 8 search produced two plastic bags that Sgt. Fossum believed contained traces of marijuana. Sgt. Fossum retrieved another plastic bag with suspected marijuana residue during the November 15 search. Each bag later tested positive for the presence of marijuana.

On November 16, 2004, Det. Skorczew-ski submitted to a Hennepin County district judge applications and supporting affidavits for search warrants for the Nolen and McGrath-Ruprecht residences. The district judge signed the search warrants, but not before the judge limited the scope of the search warrant for the Nolen residence by removing references to instru-mentalities of sales and distribution of controlled substances. With the assistance of other law-enforcement officers, Det. Skorc-zewski executed the search warrant for the Nolen residence on November 19, 2004. Laura Nolen, Julius Nolen, McGrath, and Lazor were present at the Nolen residence during the search. Cocaine and marijuana were seized during the search of the residence. Cocaine also was recovered from McGrath’s pants.

The state filed an eight-count complaint charging defendants McGrath, Ruprecht, Lazor, Laura Nolen, and Julius Nolen with one count of fifth-degree possession of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(1) (2004). McGrath, Laura Nolen, and Julius Nolen also were charged with one count of child endangerment, in violation of Minn.Stat. § 609.378, subd. 1(b)(2) (2004). The state later filed amended complaints against each party individually that were otherwise identical to the original complaint.

The defendants challenged the constitutionality of the search of the Nolen residence, arguing that the information contained in the search-warrant affidavit was insufficient to establish probable cause. Specifically, the defendants challenged the veracity of the affiant and the accuracy of the search-warrant affidavit.

On March 2, 2005, a Franks hearing was held at which Det. Skorczewski was the only witness. The district court determined that Det. Skorczewski had recklessly disregarded the truth by referring to Buckner as a “concerned citizen” in the search-warrant application and by withholding from the issuing judge relevant information that was necessary to assess Buckner’s credibility and reliability. The district court also determined that, because they merely supplied evidence of noncriminal, personal use of marijuana, the bags containing marijuana residue seized during the garbage searches did not establish an independent basis for probable cause. Therefore, the district court suppressed the evidence seized during the search of the Nolen residence.

The state appealed the district court’s order. Because the issues in each case are identical, we consolidated the appeals.

ISSUE

Do the totality of the circumstances support a finding of probable cause to issue a search warrant for the Nolen residence?

ANALYSIS

A.

When the state appeals a pretrial suppression order, the state “must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). Thus, as an initial matter, we must determine whether the district court’s order suppressing evidence will have a critical impact on the state’s case against the defendants. Appellate review of the decision to suppress evidence is precluded if the decision does not have a critical impact on the state’s case. Id. When the likelihood of a successful prosecution is significantly reduced by the unavailability of the suppressed evidence, the critical-impact standard is met. State v. Kim, 398 N.W.2d 544, 550-51 (Minn.1987).

The state asserts that, without the evidence seized from the Nolen residence, there is no likelihood of a successful prosecution. For each respondent, the drug-possession and child-endangerment charges arise from the execution of the search warrant at the Nolen residence and the evidence obtained during that search. Because no other evidentiary basis for the charges in the complaints exists, we conclude that suppression of the evidence seized from the Nolen residence has a critical impact on the state’s ability to prosecute these cases.

B.

The state contends that the district court erred when it (1) determined that the affidavit Det. Skorezewski executed in support of the search-warrant application contained reckless misrepresentations of material fact and (2) declined to use the marijuana evidence seized during the garbage searches as an independent basis for probable cause. Wdien determining whether a search warrant is supported by probable cause, we do not engage in a de novo review. State v. Papadakis, 643 N.W.2d 349, 355 (Minn.App.2002). Rather, giving great deference to the issuing judge’s finding of probable cause, we limit our review to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); see also State v. Harris, 589 N.W.2d 782, 787-88 (Minn.1999); Papadakis, 643 N.W.2d at 355. A substantial basis in this context means a “fair probability,” given the totality of the circumstances. Zanter, 535 N.W.2d at 633 (quoting Ill. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Thus, we consider whether, according to all the information in the affidavit, including statements as to the “ ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).

The affidavit must supply specific facts to establish a “direct connection, or nexus,” between the crime alleged and the place to be searched, “particularly in cases involving the search of a residence for evidence of drug activity.” State v. Souto, 578 N.W.2d 744, 747-48 (Minn.1998), Because a stale factual basis may invalidate a search warrant, id. 749-50, the affidavit also must supply proof of facts so closely related in time to the issuance of the search warrant as to justify a finding of probable cause at the time, State v. Jannetta, 355 N.W.2d 189, 193 (Minn.App. 1984), review denied (Minn. Jan. 14, 1985).

Our first consideration is whether the search-warrant application, including the affidavit, is facially sufficient to support a finding of probable cause. Because the search-warrant application is clear and unambiguous, we do not look beyond the four corners of the document to find “an intent and an authority not expressed within.” State v. Alt, 469 N.W.2d 732, 734 (Minn.App.1991).

Det. Skorczewski’s affidavit contains detailed information regarding his training and experience in drug-related investigations, along with his past experience executing search warrants. The affidavit describes the Nolens and their residence with particularity and relates Det. Skorc-zewski’s knowledge of the Nolens’ drug-related activities based on statements by an anonymous source described as a “concerned citizen.” The affidavit describes the three garbage searches and the evidence seized from them. Finally, the affidavit describes the basis for a criminal investigation of the Nolen residence.

The search-warrant application, including Det. Skorczewski’s affidavit, is facially valid, supplying relevant information necessary to establish probable cause in support of a search warrant. Thus, the issuing judge did not err in issuing the search warrant for the Nolen residence based on the information presented.

Because respondents challenged the accuracy and veracity of the statements contained in Det. Skorczewski’s affidavit, our analysis does not end with our determination of the search-warrant application’s facial validity. Although a presumption of validity attaches to a search-warrant affidavit, this presumption is overcome when the affidavit is shown to be the product of deliberate falsehood or reckless disregard for the truth. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. A search warrant may be deemed void and the fruits of the search suppressed when it is demonstrated by a preponderance of the evidence that the affiant knowingly or with reckless disregard for the truth included a false statement in the affidavit. Id. at 156, 98 S.Ct. at 2676; Elec. Fetus Co. v. City of Duluth, 547 N.W.2d 448, 452 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996).

Innocent or negligent misrepresentations will not invalidate a search warrant. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989). But “[a] search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probable cause.” Id. (emphasis added). If an affi-ant deliberately falsified information or recklessly disregarded the truth in order to obtain the search warrant, we set aside the false statements and supply the omissions to decide whether the affidavit as modified establishes probable cause. State v. Doyle, 336 N.W.2d 247, 250 (Minn.1983).

The state contends that the district court erred when it determined that the affidavit contained reckless misrepresentations of material fact. In reviewing the veracity and accuracy of the affidavit, we carefully examine the statements contained therein to determine whether Det. Skorczewski deliberately or recklessly misled the issuing judge when he referred to Buckner as a “concerned citizen.” A “concerned citizen” is an informant who provides information in his or her capacity as a witness to a crime, for whom a law enforcement officer is relieved of having to establish credibility and veracity independently through corroboration or a history of providing reliable information. See 2 Wayne R. LaFave, Search & Seizure § 3.4(a), at 219-21 (2004). The motive to supply information to police distinguishes a concerned citizen from other informants who are motivated by a desire for leniency or immunity from prosecution. A concerned citizen acts with an intent to aid law enforcement out of concern for society or for personal safety. Erickson v. State, 507 P.2d 508, 518 (Alaska 1973). The term “concerned citizen,” therefore, conveys a preferred status as to the credibility of the information supplied. Whitten v. State, 174 Ga.App. 867, 331 S.E.2d 912, 913-14 (1985); see Cundiff v. United States, 501 F.2d 188, 190 (8th Cir.1974) (holding that personal and recent knowledge of concerned citizen was sufficient to establish probable cause to issue search warrant); see also United States v. Scalia, 993 F.2d 984, 987 (1st Cir.1993) (providing that an affidavit need not demonstrate record of previous reliability to establish the veracity of a “concerned citizen”); Davis v. State, 214 Ga.App. 36, 447 S.E.2d 68, 70 (1994) (denying “concerned citizen” status to an informant when affiant did not provide factual basis for the credibility of his information); State v. White, 196 Ga.App. 685, 396 S.E.2d 601, 603 (1990) (“[B]efore an [informant] can be elevated to the status of ‘concerned citizen,’ thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the [issuing judge] facts from which it can be concluded that the [informant] is, in fact, a ‘concerned citizen.’ ”); State v. Rangeloff, 580 N.W.2d 593, 600 (N.D.1998) (stating the presumption of reliability of “citizen informants”); State v. Kerr, 181 Wis.2d 372, 511 N.W.2d 586, 589 (1994) (permitting an assumption of credibility when dealing with an “average citizen”).

When we apply this definition of the term “concerned citizen,” the record clearly supports the district court’s determination that Det. Skorczewski recklessly disregarded the truth when using the term to describe Buckner. Det. Skorczewski included the following description of Buckner and his knowledge in the search-warrant affidavit:

In October of 2004, Your Affiant learned from a Concerned Citizen [CC] of drug activity in the City of Minneapolis, County of Hennepin. More specific, the (CC) stated a female by the name of Laura Ann Nolen who lives at 5731 Thomas Ave. South in the City of Mpls., is using cocaine and marijuana. The (CC) states she is married to a Julius Nolen and that they have a young child. The (CC) has observed Laura Nolen use cocaine in the past month. The (CC) stated Laura purchases the cocaine from a female by the name of Amy Susan McGrath DOB/11-27-63. The (CC) stated that Laura Nolen works for the City of Minneapolis and her husband Julius Nolen works for Hennepin County. The (CC) is known to Your Affiant.

As this excerpt demonstrates, Det. Skorc-zewski’s affidavit relies heavily on the statements of Buckner as a “concerned citizen,” without establishing any details regarding Buckner that would provide insight as to- his credibility or motive to cooperate with the investigation.

Det. Skorczewski’s affidavit fails to disclose relevant facts about Buckner that are critical to an informed judgment of his credibility and veracity. For example, Buckner has an extensive criminal record in Minnesota and several other states. Buckner has eight felony convictions for offenses, including drug possession and theft. He has used more than 20 aliases. In short, he is a repeat offender with a propensity for lying that undermines his credibility and reliability.

At the time of the interviews, Buckner was a drug addict in police custody facing serious criminal charges. Buckner had admitted committing seven armed robberies of local pharmacies to support his addiction to OxyContin, a Schedule II drug under the Controlled Substances Act. See Minn.Stat. § 152.02, subd. 3(a) (2004). Buckner also admitted a history of cocaine addiction. None of this information is included in the affidavit.

Det. Skorczewski’s characterization of Buckner as a “concerned citizen” is false and misleading. Given his criminal history and ongoing participation in criminal activity, Buckner is not a concerned citizen. Rather, he is a confidential informant, whose credibility and reliability must be bolstered by statements regarding a history of providing accurate information in prior criminal investigations. State v. Siegfried, 274 N.W.2d 113, 114-15 (Minn. 1978); see also State v. Reese, 446 N.W.2d 173, 177 (Minn.App.1989), review denied (Minn. Nov. 15, 1989); State v. Gabbert, 411 N.W.2d 209, 212-13 (Minn.App.1987). As the Siegfried court determined, the credibility of an informant akin to Buckner cannot be assumed. 274 N.W.2d at 114— 15.

[I]t is not enough that the affidavit states in a conclusory fashion that [an informant] is credible or reliable. Rather, the affidavit must provide the [issuing judge] with adequate information from which [the judge] can personally assess the informant’s credibility. This is often done by showing that the informant has a track record, e. g., by showing that in the past the information he has given the police has been accurate.

Id. Indeed, Siegfried makes evident that Det. Skorczewski’s affidavit omitted information about Buckner’s credibility that is crucial to the issuing judge’s credibility assessment.

Det. Skorczewski’s affidavit also contained erroneous statements regarding Buckner’s knowledge of Laura Nolen’s drug use. By the time Det. Skorczewski applied for the search warrant in November, approximately four months had passed since Buckner had observed Laura Nolen using cocaine at the McGrath-Ru-precht residence. But the affidavit states that Buckner’s observation occurred one month prior to the date of the affidavit. The affidavit also refers to cocaine sales from McGrath to Laura Nolen, falsely implying that Buckner witnessed this activity or had direct knowledge of it. But Buckner did not witness Laura Nolen purchase cocaine, nor did he have any information relating to such sales.

When asked why he did not present information about Buckner’s drug addiction, criminal record, and recent criminal activity to the issuing judge, Det. Skorc-zewski replied, “I don’t know.” Det. Skorczewski then indicated that such information was not needed because he considered Buckner to be a concerned citizen at that time. We disagree. By elevating Buckner to the status of a “concerned citizen,” whose credibility as an informant is presumed, the need for the issuing judge to scrutinize the informant’s motive and credibility was obscured. Buckner’s credibility and reliability were not those of a neutral, independent citizen-witness. The issuing judge should have been informed about the true nature of the source of the information. Id. The district court correctly determined that the issuing judge was misled as to “the credibility of, and the source of, the information provided.”

We also agree with the district court’s conclusion that Det. Skorczewski’s statements as to Buckner’s credibility as a “concerned citizen” demonstrate a reckless disregard for the truth. Details such as Buckner’s criminal history, use of aliases, and pending charges were relevant to a finding of probable cause. A veteran law enforcement officer, such as Det. Skorc-zewski, with more than ten years’ experience, including the preparation of more than 115 affidavits in support of search warrants, should have known the relevance of this information and presented it to the issuing judge. Because the omissions from the affidavit demonstrate a reckless disregard for the truth that hindered the issuing judge’s opportunity to meaningfully assess the informant’s credibility, the district court did not err in its determination that the affidavits contained reckless misrepresentations of fact that undermined the finding of probable cause.

In light of our conclusion that the search-warrant affidavit included reckless misrepresentations of fact, we next consider whether the reckless misrepresentations are material to the determination of probable cause. In doing so, we set aside Skorezewski’s misleading statements, and supply any omissions regarding Buckner to determine whether any basis for finding probable cause remains. Doyle, 336 N.W.2d at 250; State v. Smith, 448 N.W.2d 550, 555-56 (Minn.App.1989) (holding that reckless misrepresentation is “material” if there is not probable cause to issue search warrant when misrepresentation is set aside), review denied (Minn. Dec. 29, 1989). If after this rehabilitation there is sufficient information to sustain a finding of probable cause, the search warrant is not void. Elec. Fetus Co., 547 N.W.2d at 452.

The state contends that probable cause to issue the search warrant was independently established by the evidence seized during three curbside garbage searches conducted at the Nolen residence. From these searches, police recovered four plastic bags that tested positive for the presence of marijuana. The district court concluded that the evidence retrieved from the Nolens’ garbage was insufficient to establish probable cause to search the No-len residence because (1) the evidence merely demonstrated personal use of marijuana, and (2) possession of a small amount of marijuana is a petty misdemeanor — not a crime, which is an enumerated ground for issuing a search warrant. Minn.Stat. § 626.07(3) (2004) (“A search warrant may be issued upon any of the following grounds: ... [t]he possession of the property or things constitutes a crime[.]”); see Minn.Stat. § 152.027, subd. 4 (2004) (stating that possession of small amount of marijuana is petty misdemeanor); Minn. Stat. § 609.02, subd. 4 (2004) (stating that petty misdemeanor is not a crime).

Probable cause to issue a search warrant requires a fair probability to believe that contraband or evidence of a crime will be found in the location to be searched. Harris, 589 N.W.2d at 788; Zanter, 535 N.W.2d at 633. Indeed, probable cause requires “ ‘only a probability or substantial chance of criminal activity, not an actual showing of such activity,’ ... the significant fact being ‘not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 555 (Minn.1985) (quoting Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13). Innocent or noncriminal activity can contribute to the totality of the circumstances on which a finding of probable cause is based. State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998) (citing State v. Johnson, 444 N.W.2d 824, 826-27 (Minn.1989)). “When determining whether there is probable cause, the ‘ultimate inquiry is not whether there is some hypothesis of ... “innocence” which is reasonably consistent with the circumstances shown.’ ” State v. Hawkins, 622 N.W.2d 576, 580 (Minn.App. 2001) (quoting United States v. Sanchez, 689 F.2d 508, 515 (5th Cir.1982)).

Contraband seized from a garbage search can provide an independent and substantial basis for a probable-cause determination. Papadakis, 643 N.W.2d at 356 (finding that spoon with burn marks and plastic bag containing cocaine residue were sufficient to establish probable cause for search); see also State v. Goebel, 654 N.W.2d 700, 702 (Minn.App.2002) (spoon with cocaine residue). In State v. Dreyer, marijuana residue retrieved during a residential garbage search led to the issuance of a constitutionally valid search warrant for a residence. 345 N.W.2d 249, 250 (Minn.1984). Respondents contend that the district court was correct when it determined that the plastic bags with marijuana residue were insufficient to establish probable cause because possession of small amounts of marijuana is noncriminal. We rejected a similar argument in State v. Skapyak, 702 N.W.2d 331, 334 (Minn.App. 2005), review denied (Minn. Oct. 18, 2005). In Skapyak we noted that possession of even small amounts of a controlled substance like marijuana is sufficient to put “the possessor on notice of the illegality of his actions.” Id. (citing State v. Benniefield, 678 N.W.2d 42, 48 (Minn.2004)). Moreover, the test is not whether the residual amounts of marijuana are criminal. Rather, the test is whether those amounts support a reasonable expectation that more marijuana or other evidence of criminal activity will be found on the premises. State v. Eggler, 372 N.W.2d 12, 14-15 (Minn.App.1985), review denied (Minn. Sept. 19,1985).

Minnesota caselaw does not support the district court’s determination that small, noncriminal amounts of marijuana cannot establish a fair probability that evidence of a crime or' contraband will be found in a particular place. A search-warrant application establishes probable cause if “the affidavit, interpreted in a common-sense and realistic manner, contain[s] information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.” Rosillo v. State, 278 N.W.2d 747, 748—49 (Minn.1979). In addition to cocaine, the search-warrant application and affidavit sought other controlled substances, including marijuana, and narcotics paraphernalia. After supplying the omissions and correcting the erroneous information contained in the affidavit relating to the informant’s veracity, we conclude that the plastic bags with marijuana residue provided an independent and substantial basis to establish probable cause to issue a search warrant for the Nolen residence.

Our probable-cause analysis requires us to examine two final issues: the staleness of the evidence used to support probable cause and the nexus between the alleged crime and the particular place to be searched.

The evidence supporting a finding of probable cause must be closely related in time to the issuance of the search warrant so as to justify a finding of probable cause at the time the search is to be conducted. Jannetta, 355 N.W.2d at 193. Factors such as “whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable” are relevant to our consideration of whether the information supporting the search warrant is stale. State v. DeWald, 463 N.W.2d 741, 746 (Minn.1990).

Unlike Laura Nolen’s alleged cocaine use reported by Buckner, the evidence of marijuana use was obtained shortly before the search warrant was sought. The first evidence of this type was seized three weeks before the search warrant was sought. Two additional searches produced similar evidence. And the last garbage search occurred only one day before the application was made and two days before the search warrant was executed. The recovery of discarded bags with marijuana residue on a weekly basis is indicative of ongoing activity of an illegal nature. Thus, the evidence recovered from the garbage searches was not stale.

This evidence also supplies the “direct connection, or nexus, between the alleged crime and the particular place to be searched” necessary to establish probable cause. Souto, 578 N.W.2d at 747.

Based on the totality of the circumstances, we conclude that there was probable cause to issue the search warrant for the Nolen residence and that the district court erred in suppressing the evidence seized during the search.

C.

As a final matter, without regard for well-established precedent, respondent Laura Nolen invites us to rule that garbage searches are per se unreasonable under Minnesota law. We decline to do so. “It is, as the United States Supreme Court points out, ‘common knowledge’ that plastic garbage bags left on or beside a public street are vulnerable to any number of invasions, whether from animals or members of the public.” State v. Goebel, 654 N.W.2d 700, 703-04 (Minn. App.2002) (quoting California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1628-29, 100 L.Ed.2d 30 (1988)). As a result, the expectation of privacy in garbage placed at curbside for normal pickup is eroded. Id. The Minnesota Supreme Court has recognized that “a householder may ordinarily have some expectation of privacy in the items he places in his garbage can.” State v. Oquist, 327 N.W.2d 587, 591 (Minn.1982). However, when a police officer searches trash set on the curb for routine pickup without trespassing on the premises, an unreasonable search has not occurred. Dreyer, 345 N.W.2d at 250.

According to the search-warrant affidavit, each of the three garbage searches was conducted on garbage set out at curbside for normal pickup. There is no evidence that any of the searches exceeded the constitutionally permissible bounds. Accordingly, these searches were not unreasonable.

DECISION

Notwithstanding reckless misrepresentations of fact by the affiant in the search-warrant application, the evidence of ongoing marijuana possession and use retrieved from respondents’ curbside garbage supplied an independent basis sufficient to establish probable cause to issue the search warrant. The district court, therefore, erred by suppressing the evidence seized during the search.

Reversed and remanded.

      . Ruprecht was searched in his vehicle after leaving the Nolen residence shortly before the execution of the search warrant. Officers seized 2.5 grams of cocaine from his possession.

      . The state dismissed the child-endangerment charge against McGrath and the controlled-substance charge against Lazor.

      . Franks v. Delaware., 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978) (permitting an evidentiary hearing to challenge the validity of a search-warrant affidavit upon allegations of deliberate falsehood or of reckless disregard for the truth accompanied by an offer of proof).

      .Respondents do not challenge the search warrant for the McGrath-Ruprecht residence. Although the district court found that Det. Skorczewski similarly exhibited a reckless disregard for the truth in statements contained in that search-warrant affidavit, the controlled buy of cocaine provided an independent basis for probable cause to search the McGrath-Ruprecht residence.


author: KALITOWSKI, Judge.

text:
    STATE of Minnesota, Respondent, v. Daniel Leslie MAURSTAD, Appellant.
    No. A04-1000.
    Court of Appeals of Minnesota.
    Dec. 13, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, MN, for respondent.
    Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and SHUMAKER, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant challenges his sentence and an order denying postconviction relief from his sentence, arguing that (1) he did not waive his sentencing challenge by failing to raise it at trial; (2) his criminal history score should not have included a custody status point; and (3) he was entitled to a jury determination of his criminal history score.

FACTS

On February 6, 1996, appellant Daniel Leslie Maurstad pleaded guilty to aiding burglary in the second degree. At appellant’s sentencing, the court stayed imposition of that sentence and placed him on supervised probation “for a period not to exceed the statutory maximum.” At that time, the statutory maximum for aiding and abetting burglary in the second degree was ten years. Minn.Stat. §§ 609.52, subd. 3(2), .582, subd. 2 (1996). On November 3, 1999, the district court discharged appellant from probation.

On December 17, 2003, appellant pleaded guilty to charges of controlled substance crime in the first degree, manufacture of methamphetamine; controlled substance crime in the second degree, sale of methamphetamine; and misdemeanor domestic assault. The plea agreement contemplated that the sentences would run concurrently and that appellant would be sentenced according to the sentencing guidelines.

The Pre-Sentence Investigation Report (PSI) uncovered the 1996 conviction for aiding burglary in the second degree, of which the court had been unaware at the time of the plea hearing. This discovery raised appellant’s criminal history score by two points, one point for the prior felony and one point for custody status. Based on a total of three prior crimes and one custody status point, appellant was assigned a criminal history score of four rather than the score of two he had anticipated.

On February 10, 2004, the district court sentenced appellant to concurrent sentences of 78 months on the controlled substance crime in the second degree conviction, 129 months on the controlled substance crime in the first degree conviction, and 90 days for the misdemeanor domestic assault conviction. Both of the felony sentences fell within the presumptive range under the Minnesota Sentencing Guidelines.

On June 3, 2004, appellant filed a notice of appeal with this court. Appellant then requested and received a stay of his appeal so that he could file a postconviction petition in district court. Appellant argued to the postconviction court that the sentencing judge erred by crediting him a custody status point when he was not under criminal justice custody. The postconviction court denied appellant’s petition for post-conviction relief holding that by failing to object to his criminal history score or to the PSI at sentencing, appellant “waived any objections at the time of sentencing or, at a minimum, has forfeited his right to raise an objection unless he can meet his burden of proving plain error.” The stay of appellant’s appeal to this court was vacated. Appellant challenges the rulings of the district court and the postconviction court on direct appeal.

ISSUES

1. Did the postconviction court err by finding that appellant waived his right to challenge his criminal history score?

2. Did the district court err by attributing a custody status point to appellant when calculating his criminal history score?

3. Did the district court violate appellant’s Sixth Amendment rights by failing to submit the issue of appellant’s criminal history score to a jury?

ANALYSIS

I.

Appellant argues that he did not waive his right to contest his criminal history score by failing to challenge the score at sentencing. We agree.

Normally, “[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But where appellant first files a direct appeal, which this court stays to allow appellant to file a subsequent petition for postconviction relief, we use the standard of review for direct appeals. Santiago v. State, 644 N.W.2d 425, 439 (Minn.2002). Whether waiver is established is ordinarily a question of fact. Meagher v. Kavli, 251 Minn. 477, 486, 88 N.W.2d 871, 878 (1958). Findings of fact will not be set aside on appeal unless clearly erroneous. Minn. R. Civ. P. 52.01.

'[4] The failure to object to an error at trial may constitute waiver of the right to appeal on that basis unless appellant shows that there was plain error affecting substantial rights. See, e.g., State v. Gutierrez, 667 N.W.2d 426, 433-34 (Minn. 2003) (upholding jury instructions where appellant failed to object before they were given to the jury); State v. Taylor, 650 N.W.2d 190, 205 (Minn.2002) (upholding admission of evidence where appellant failed to object at trial).

In the sentencing context, however, this court has not held that errors not raised at trial are barred on appeal. A court may correct an illegal sentence at any time. Minn. R.Crim. P. 27.03, subd. 9. And a defendant can appeal to the court of appeals “from any sentence imposed or stayed by the district court according to the Rules of Criminal Procedure for the district court of Minnesota.” Minn.Stat. § 244.11, subd. 1 (2004). In addition, this court has held that a defendant’s right to appeal an illegal sentence cannot be waived. Ballweber v. State, 457 N.W.2d 215, 218 (Minn.App.1990). Moreover, where there has been no prior direct appeal, the Knaffla waiver rule does not apply. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that once a direct appeal has been taken, all matters raised in the direct appeal, and all claims known but not raised, will not be considered in postconviction petitions).

We reject the state’s argument that Minn. R.Crim. P. 27.03, subd. 1(D) will be rendered irrelevant if appellant is allowed to raise his posttrial sentencing challenge. Rule 27.03, subd. 1(D) merely describes the procedure by which a defendant may contest the sentencing worksheet or PSI before sentencing. It does not state that sentencing challenges are barred if not raised at trial. Thus, we conclude that allowing this postsentencing challenge does not contradict Minn. R.Crim. P. 27.03, subd. 1(D).

Because a criminal defendant cannot waive the right to appeal a sentence, we conclude that the postconviction court erred by finding that appellant had waived his right to appeal his criminal history score, a factor in calculating his sentence, because he did not object to the score at trial.

II.

The state suggests that this court may only review appellant’s criminal history score if we find plain error in the district court’s determination of the score. We disagree.

The Minnesota Supreme Court applied plain-error analysis to an unobjected-to trial error in State v. Griller, 583 N.W.2d 736, 740-42 (Minn.1998). But, in Griller, the appellant challenged the district court’s jury instructions, not its sentencing. Id. at 740. And cases applying the Griller plain-error analysis have not applied it to sentencing errors. See, e.g., State v. MacLennan, 702 N.W.2d 219, 235-36 (Minn.2005) (applying plain-error analysis when appellant alleged prosecutorial misconduct for the first time on appeal); State v. Vick, 632 N.W.2d 676, 684-85 (Minn.2001) (explaining that failure to object to the admission of evidence at trial waived that challenge on appeal unless the admission was plain error).

We decline to apply plain-error analysis to unobjected-to errors in sentencing. Because a defendant does not waive the right to appeal a sentence by not objecting at trial, the standard for triggering this court’s review of the sentence on appeal should not be heightened. We thus conclude that a defendant should not be forced to prove plain error before obtaining the appellate review to which he has an unwaivable statutory right.

Appellant’s .challenges to his criminal history score involve interpretation of the sentencing guidelines, a question of law subject to de novo review. State v. Rouland, 685 N.W.2d 706, 708 (Minn.App. 2004), review denied (Minn. Nov. 23, 2004).

Under the 2002 Minnesota Sentencing Guidelines, a custody status point may be assigned when the offender commits the “current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony[.]” Minn. Sent. Guidelines II.B.2.C. The comment to the rule states:

The Commission believes that the potential for a custody status point should remain for the entire period of the initial length of stay pronounced by the sentencing judge. An offender who is discharged early but subsequently is convicted of a new felony within the period of the initial length of stay should still receive the consequence of a custody status point.

Minn. Sent. Guidelines cmt. II.B.201.

Appellant contends that the district court erred by assigning him a custody status point because his current offenses were not committed within the “initial length of stay” of his 1996 conviction. We agree.

At appellant’s 1996 sentencing, the court stayed imposition of his sentence and placed him on supervised probation “for a period not to exceed the statutory maximum” of ten years. Appellant argues that the “initial length of stay” of that offense ended in 1999 when the court discharged his probation. The state argues that the discharge of appellant’s probation “simply has no bearing” on appellant’s criminal history score because his “initial length of stay” was ten years.

It is important to note that it is the judge, not the presentencing investigator, who pronounces a defendant’s “initial length of stay.” Id. Here, the judge in 1996 imposed probation for a period “not to exceed” the statutory maximum of ten years. But the phrase “not to exceed” does not define a probationary period. It merely provides the outer limit of that probationary period. And when the court discharged appellant’s probation in 1999, that discharge provided the definitive end of his probation and of his “initial length of stay.”

The judge’s words at sentencing did not impose a ten-year probationary period on appellant, and we decline to read such a meaning into them. We cannot say that an initial length of stay “not to exceed” ten years equals an initial length of stay of ten years. Ambiguities in the sentencing guidelines should be resolved against the state and in defendant’s favor. State v. McGee, 347 N.W.2d 802, 805 (Minn.1984). We conclude that appellant’s “initial length of stay” from his 1996 conviction ended in 1999 and was no longer in effect when he committed the underlying offenses here. Therefore, the district court erred by attributing a custody status point to appellant at sentencing.

We reverse and remand for resentenc-ing. Because we reverse, we do not address appellant’s other challenges to the custody status point under the sentencing guidelines.

III.

Appellant argues that the calculation of his custody status point violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We disagree.

A criminal defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases his sentence beyond the statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000); see also Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537. In Blakely, the Supreme Court held that the greatest sentence that a judge may impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303,124 S.Ct. at 2537.

This court has held that Blakely does not require a jury finding to establish custody status points as part of the defendant’s criminal history score. State v. Brooks, 690 N.W.2d 160, 163-64 (Minn. App.2004), review granted (Minn. March 15, 2005). The Brooks court concluded that the determination of a criminal history score, including the custody status point, is analogous to the Blakely exception for the fact of a prior conviction. Id. at 163. “[C]ustody status points are established by the court’s own records” and are “based on the fact that a person has one or more prior convictions.” Id.

The question of whether appellant was on probation at the time he committed the offenses here was established by looking at the court’s records and is based on appellant’s prior conviction. We conclude that the district court was not required to submit the question of appellant’s custody status point to a jury and could find the

custody point on its own without violating appellant’s Sixth Amendment right as applied in Blakely.

DECISION

A criminal defendant does not waive the right to object to a criminal history score by failing to object to the score at sentencing. And a defendant is not required to show plain error before this court will review a determination of a defendant’s criminal history score.

Finally, we conclude that because Blakely does not require a jury finding to establish custody status points as part of a defendant’s criminal history score, the district court did not err by failing to submit the issue of appellant’s custody status point to a jury.

Reversed and remanded.


author: KAPSNER, Justice.

text:
    2005 ND 206
    Kjerstin Thora ERIKSMOEN, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20050129.
    Supreme Court of North Dakota.
    Nov. 29, 2005.
    Rehearing Denied Jan. 31, 2006.

      Henry H. Howe (argued), Howe & Sea-worth, Grand Forks, ND, for petitioner and appellant.
    Andrew Moraghan (argued), Assistant Attorney General, and Zachary E. Pelham (appeared), Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Kjerstin Eriksmoen appeals from a district court judgment upholding a Department of Transportation’s three-year revocation of Eriksmoen’s driving privileges for refusing to take an intoxilyzer test. Eriksmoen argues she was denied an adequate opportunity to consult with her attorney. We affirm.

I.

[¶2] Eriksmoen was driving several passengers home from a wedding reception. Highway Patrol Officer Troy Hischer was following Eriksmoen when he noticed Eriksmoen turn on her right blinker in the right-turn-only lane, but then proceed to make a left turn on to 32nd Avenue in Grand Forks. Eriksmoen’s car was stopped. As the officer approached, he smelled alcohol on Eriksmoen’s breath and noticed one of the passengers had a case of beer in the back seat of the car. The officer asked Eriksmoen if she had been drinking. After admitting to drinking earlier that night at a wedding reception, Eriksmoen was given a field sobriety test. She failed the test. Officer Hischer then read the implied consent advisory set out in N.D.C.C. § 39-20-01 to Eriksmoen and asked her to submit to an onsite screening test. Eriksmoen refused and requested to speak to an attorney. Eriksmoen was arrested for driving under the influence of intoxicating liquor and taken to the Grand Forks Police Department. Officer Hischer allowed Eriksmoen to obtain her cell phone from the car and she called the son of attorney Henry Howe. While Eriksmoen was on the phone, she indicated she would take the onsite screening test. She gave a breath sample for the SD-2 test and failed the test.

[¶ 3] In the intoxilyzer room at the Grand Forks Police Department, Officer Hischer again read the implied consent advisory to Eriksmoen and asked if she would submit to an intoxilyzer test. She requested to make another phone call on a land line phone because her cell phone was dead. Before making the call, she was notified that her attorney, Henry Howe, had arrived at the police station.

[¶ 4] Howe requested a room where he could meet with his client in private. Officer Hischer stated he was required to keep constant observation of Eriksmoen and that no private room with an observation window was available. Officer Hischer offered to stand at the other end of the room “to be out of earshot, but so as to allow visual observation.” Officer Hischer thought he would be about 20-25 feet away. The room was actually 21 feet long. Occasionally people, including other police officers, would walk through the room.

[¶ 5] Howe concluded a conversation in this room would not be adequate because he would not be able to consult with his client out of earshot of the police. Howe left the building without advising Erik-smoen whether she should submit to an intoxilyzer test. Eriksmoen refused to submit to the intoxilyzer test. A hearing officer determined that Eriksmoen’s limited statutory right to consult with counsel was not violated. A district court judge reviewed and affirmed the hearing officer’s decision. Eriksmoen’s primary argument on appeal is that she was denied a reasonable opportunity to consult with an attorney in a meaningful way.

II.

[¶ 6] Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. This Court reviews the record before the administrative agency and will affirm an agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46; Lee v. N.D. Dep’t of Transp., 2004 ND 7, ¶ 8, 673 N.W.2d 245.

[¶ 7] In reviewing a license suspension, we give deference to the Department’s findings. Lee, at ¶ 9. The Court determines “only whether a reasoning mind could have concluded the Department’s findings were supported by the weight of the evidence from the entire record.” Id.

[¶ 8] Starting with Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 290 (N.D.1987), a majority of this Court held that a person arrested for driving under the influence has a limited statutory right under N.D.C.C. ch. 39-20 to consult with counsel before deciding whether to submit to a chemical test. The right to consult with an attorney before taking a chemical test is derived from N.D.C.C. § 29-05-20. State v. Sadek, 552 N.W.2d 71, 73 (N.D. 1996). Section 29-05-20, N.D.C.C. requires that “any attorney at law entitled to practice in the courts of record of this state, at his request, may visit [an accused] person after his arrest.”

[¶ 9] This Court has established a balancing test to evaluate whether the limited statutory right to consult with counsel has been violated: “The arrestee’s right to consult privately with counsel must be balanced against society’s strong interest in obtaining important evidence.” Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 12, 622 N.W.2d 180. If a person arrested for driving under the influence is asked to submit to a chemical test and responds with a request to speak with an attorney, the failure to allow the arrested person a reasonable opportunity to contact an attorney prevents the revocation of her license for refusal to take the test. Id. The reasonableness of the opportunity to consult with counsel is viewed objectively in light of the totality of the circumstances. City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D.1994).

[¶ 10] Eriksmoen correctly notes the facts in this case are very similar to Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146 (N.D.1988). In Bickler, a defendant requested to speak with his attorney “in a private setting.” Id. at 147. The arresting officer refused to allow the defendant to consult with his attorney out of the officer’s view. Id. The attorney left the jail without asking Biekler any questions. Id. Biekler refused to take an intox-ilyzer test and his license was revoked. Id. A hearing officer found Biekler had an “opportunity to consult with an attorney” but still refused to submit to the test. Id. The hearing officer revoked Bidder’s driving privileges for one year. Id.

[¶ 11] The district court reversed and ruled that “a reasonable opportunity to consult with counsel required a free and open discussion between the attorney and client, for which a private room should be provided, if available.” Id. This Court reversed the district court and affirmed the hearing officer holding that “when an arrested person asks to consult with counsel before electing to take a chemical test he must be given the opportunity to do so out of police hearing, and law enforcement must establish that such opportunity was provided.” Id. at 148. Thus, under Bick-ler, a private room is not required.

[¶ 12] While Eriksmoen is correct in arguing the facts in Biekler are similar to her situation, Eriksmoen is incorrect in arguing Biekler supports her position. In this case, Eriksmoen had an opportunity to consult with her attorney, but her attorney insisted upon a private room. Because the officer believed a private room with an observation window was not available, the officer stated that he would stand at the other end of a 21-foot hallway while Eriksmoen discussed the situation with her attorney. This was unsatisfactory to her attorney. Whether the attorney was satisfied with the arrangements to consult with his client in private is not the relevant inquiry. As we explained in Jewett, the ability to consult only has to be reasonable. Jewett, 517 N.W.2d at 642. The reasonableness of the opportunity to consult with counsel is viewed objectively in light of the totality of the circumstances. Id.

[¶ 13] The hearing officer concluded Eriksmoen’s “limited statutory right to consult with an attorney was afforded to her.” Eriksmoen argues this finding is erroneous because a room 21 feet in length with officers walking nearby could not be “out of police hearing.” While some of our previous cases have discussed distances, see, e.g., City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D.1994), we have refused to hold a specific distance as being entirely reasonable or unreasonable. We believe the hearing officer’s findings are supported from the record and are not clearly erroneous.

[¶ 14] Eriksmoen also argues her attorney exercised the only option he had by leaving because anything overheard by the police officers could be used against her. But this is a mistaken characterization of the law. Had an officer overheard the consultation about whether to take the test and attempted to use what he heard against Eriksmoen, the testimony would be inadmissible under Jewett, 517 N.W.2d at 643 (citing Comm’r of Public Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992)). The easiest solution would be to have the attorney speak quietly to his client. There is nothing in the administrative record to indicate that such communication would not be possible or adequate. “Simply put, the linchpin for determining if police have given an accused a meaningful opportunity for contacting an attorney is reasonableness under the circumstances.” State v. Berger, 2001 ND 44, ¶ 18, 623 N.W.2d 25. We conclude that the agency’s finding that Eriksmoen had a reasonable opportunity to consult with her attorney is supported by a preponderance of the evidence.

[¶ 15] Eriksmoen also argues, for the first time on appeal, she was denied due process at the license suspension hearing because the hearing officer had knowledge of a previous case involving Eriksmoen. We decline to address this issue because it was raised for the first time on appeal. Robert v. Aircraft Inv. Co., 1998 ND 62, ¶ 14, 575 N.W.2d 672; Messer v. Bender, 1997 ND 103, ¶ 10, 564 N.W.2d 291; Christenson v. Job Service, 399 N.W.2d 300, 303 (N.D.1987).

III.

[¶ 16] The judgment of the district court is affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.