author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Joseph D. TURE, Appellant.
    No. C8-00-798.
    Supreme Court of Minnesota.
    Aug. 16, 2001.

      Mark D. Nyvold, for appellant.
    Mike Hatch, Attorney General, Thomas R. Razatz, Assistant Attorney General, Roger S. Van Heel, Stearns County Attorney, for respondent.
   OPINION

PAGE, Justice.

Appellant Joseph Ture was convicted in January 2000 of four counts of first-degree murder in violation of Minn.Stat. § 609.185, subd. 1 (1978), for the December 15, 1978, murders of Alice Huling and three of her four children. Ture was sentenced to four consecutive life sentences. In this direct appeal, Ture argues that the district court erred when it denied his motion at trial to suppress three items seized from his car four days after the murders: a metal bar wrapped in what appeared to be a steering wheel cover, a two-inch Corgi Juniors Batmobile toy car, and a ski mask. Ture also claims that the court erred in finding that the police properly retained those items until his trial in this case. In addition, Ture argues that he was denied a fair trial by evidentiary rulings that (1) permitted the state to introduce evidence that the seized toy car was similar to a toy that may have been present at the murder scene and (2) allowed the state to present expert testimony that a bruise on Alice Huling was caused by the metal bar seized from Ture’s car. Ture also raises various pro se issues. We affirm.

During the early morning hours of December 15, 1978, Alice Huling and three of her four children were murdered in their house located in rural Stearns County. The surviving child, William Huling, was 11 years old at the time and was the only witness to the murders. At trial, William testified that he was asleep in the upstairs bedroom he shared with his 13-year-old brother, Wayne, when at approximately 4:00 a.m. he was awakened by loud noises coming from the kitchen below. He heard muffled noises and wrestling, and then a gunshot. A short while later, he heard footsteps coming up the stairs and saw a person standing in the doorway to the bedroom. The person appeared to be of medium build, less than six feet tall, and wearing a stocking cap. William could see a silhouette of the person’s face, but not well enough to make a positive identification. From his bed, Wayne asked, ‘Who are you?” The person fired a shotgun at Wayne, lolling him instantly. The person then left the boys’ room and went to 16-year-old Susie’s bedroom where he shot her in the head, and proceeded to 12-year-old Patti’s bedroom where he shot her in the head. Both girls died instantly. After shooting both girls, the gunman returned to the boys’ room and fired twice at William, missing both times, and then left. After 10 or 15 minutes, William got out of bed and fled to a neighbor’s house.

On the morning of December 19, four days after the murders, Wright County Deputy Sheriff Gary Miller was dispatched to the restaurant at the Clearwater Travel Plaza in response to a complaint about a customer later identified as Ture. After learning that the car Ture was driving had been reported stolen, Miller arrested Ture for unauthorized use of a motor vehicle and placed Ture, handcuffed, in the back of his squad car. Upon entering Ture’s car to look for its keys and a newspaper Ture indicated he wanted, Miller discovered a metal bar, approximately 32 inches in length, on the front passenger seat. Miller seized the metal bar, transported Ture to the Wright County Sheriffs Department, and arranged for Ture’s car to be towed. Miller and another officer conducted an inventory search of Ture’s car, during which the toy car and ski mask were discovered. No weapons or ammunition were found.

Several of the items found during the search, including the toy car, the ski mask, and the metal bar discovered earlier, were turned over to Deputy James Kostreba and Detective Ross Baker of the Stearns County Sheriffs Department, who were investigating the Huling murders. Kos-treba and Baker interviewed Ture on December 20, 1978. An audiotape of the interview was played to the jury at Ture’s trial. During the interview, Ture said that he had been fired from his job a few days before and that he had been living out of his car. Ture stated that the toy car belonged to him and that he had grandchildren. Ture then indicated that the toy car was for his sister’s children. Ture was charged with unauthorized use of a motor vehicle and released on January 4, 1979. Although Ture was not charged with the Huling murders at that time, he remained a suspect.

In 1981, Ture was incarcerated with Toby Krominga at the Sherburne County Jail. According to Krominga, Ture confessed to murdering the Hulings and signed a written confession that Krominga had drafted according to Ture’s instructions. Although the police obtained a copy of the written confession and questioned Ture on several occasions about the confession and the murders, no charges were brought against Ture. In the summer of 1998, Ture and Randall Ferguson were inmates at Minnesota Correctional Facility-Oak Park Heights. According to Ferguson, Ture confessed to the Huling murders. Ferguson informed the authorities of Ture’s statements in August 1998, and in May 1999 Ture was indicted on four counts of first-degree murder in violation of Minn. Stat. § 609.185, subd. 1.

Before trial, Ture moved to suppress, among other things, the metal bar, the toy car, and the ski mask, claiming that the warrantless seizure of those items was not justified by any exception to the warrant requirement. He also claimed that the three items were improperly retained by the police from the time of their seizure until the trial in this case. During the suppression hearing, Ture testified that he found the metal bar and the toy car while working at a junkyard and that he had the ski mask because he worked outdoors at a car lot. The state argued that the metal bar was properly taken during a search incident to arrest, and that the toy car and ski mask were properly taken during an inventory search or, in the alternative, during a search under the automobile exception to the warrant requirement. The district court found that the metal bar was properly seized during the search incident to Ture’s arrest and, noting that there was no evidence that the inventory of Ture’s car was conducted in bad faith, that the toy car and ski mask were properly seized during the inventory search. The district court also found that the three items were properly retained by the police and admissible at trial. Ture subsequently filed a motion in limine to prevent the state from introducing evidence related to the toy car. This motion was also denied.

At trial, the state offered evidence concerning Ture’s confessions to Toby Kro-minga and Randall Ferguson. Krominga testified that, while he and Ture were incarcerated at the Sherburne County Jail in 1981, Ture admitted to committing the Huling murders. According to Krominga, Ture asked him whether someone would be considered crazy for killing a bunch of people. Ture repeated the question a few weeks later and at some point admitted to killing a family of four. Krominga stated thafi' over time, Ture gave him additional information, and that Ture wanted to dictate a letter for Krominga to write and send to a judge. Krominga testified that he wrote a number of drafts of the letter, to which Ture made corrections until they had a final draft. Krominga testified that he saw Ture sign the letter and that he signed it as a witness.

The four-page letter indicates that it was written by Krominga because Ture’s spelling is not very good. The letter explains that Ture was angry because Alice Huling had called him a pervert when he asked her if he could go out with “Pat” Huling, and that he broke into the Hul-ings’ house to rape “Pat” and knock everybody out with his “billy club.” The letter states that Ture shot Alice with his shotgun above the knees and hit her a couple of times because she woke up and recognized him, even though he had a ski mask on. The letter states that Ture then went upstairs and shot two girls and one boy. The letter indicates that Ture returned to Alice, told her what he had done, beat her with his fists and his “billy club,” and then shot her in the head. The letter ends by stating that “this statement should prove” that he is insane. When questioned by the police, Ture denied making any confession or even discussing the Huling case with Krominga, and stated that, when he signed the alleged confession, it consisted of blank pages that Krominga told him would be used to make complaints about jail food.

Ferguson testified that in 1998, when he and Ture were inmates together at Minnesota’s Oak Park Heights correctional facility, Ture admitted to Ferguson that he had “shotgunned” a family to death. According to Ferguson, Ture spoke of the surviving boy’s anticipated testimony about a toy car the boy had owned that was found in Ture’s car, bragging that the only way the boy could remember the toy car was if “the fear was etched into his memory so badly that he would have to live with it for the rest of his life.”

At trial, the state offered the testimony of three pathologists regarding a one-inch by four-inch bruise found beneath Alice Huling’s right breast during her autopsy. Dr. James Hansen conducted Alice Hul-ing’s autopsy. Dr. Hansen testified that he had compared autopsy photos of the bruise under Alice Hulin'g’s right breast with the metal bar found in Ture’s car and that, in his opinion, the bar could have caused the bruise. Dr. Michael McGee, the medical examiner for Ramsey and Washington Counties, testified that he had examined Alice’s autopsy reports, photographs of the bruise, and the metal bar. Dr. McGee stated that the dimension and appearance of the bar matched the bruise. He testified that, in his opinion, either Ture’s metal bar, or one of “similar configuration,” caused the bruise. By “simpar configuration,” Dr. McGee testified that he meant a bar that “look[s] identical.” Finally, Dr. Daniel Davis, a forensic pathologist with the Hennepin County Medical Examiner’s Office, testified that he had also examined photographs of Alice’s bruise and the metal bar. Dr. Davis testified that the bruise was a patterned injury and was unique for all practical purposes. According to Dr. Davis, the way in which the covering material was wrapped around the bar with its unique plastic lacing tied into a knot and the “unique length of the left overlacing,” combined to make the arrangement, like Mice Huling’s bruise, practically unique. In his testimony, Dr. Davis explained how numerous characteristics of the bruise corresponded to characteristics of the wrapping on the metal bar and concluded that, in his opinion, the metal bar caused the bruise.

In this appeal, Ture challenges the district court’s denial of his motion to suppress the metal bar, toy car, and ski mask. He also claims that the court erred when it ruled that those items were properly retained until his trial in this case. He further claims that he was denied a fair trial by evidentiary rulings that allowed the state to introduce evidence about the toy car and to present expert testimony that the bruise beneath Alice Huling’s right breast was caused by the metal bar. Finally, he raises various pro se issues.

I.

We first consider whether the district court erred in finding that the police properly searched Ture’s car and seized the metal bar, the toy car, and the ski mask, and did not improperly retain those items. When the facts are undisputed, this court reviews de novo a district court’s denial of a motion to suppress. State v. Carter, 569 N.W.2d 169, 173 (Minn.1997). In this case, there are no disputed facts surrounding the search of Ture’s car, the seizure of the three items in question, or their retention by the police. Accordingly, we give no deference to the district court’s decision to deny Ture’s motion to suppress these items.

Both the United States and Minnesota Constitutions prohibit the state from conducting unreasonable searches or seizures. U.S. Const, amend. IV; Minn. Const. Art. I, § 10; State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). In general, searches conducted without a search warrant are “per se unreasonable.” Munson, 594 N.W.2d at 135. In this case, the police did not have a search warrant authorizing a search of Ture’s car. Therefore, unless “one of the well-delineated exceptions to the warrant requirement” applies, the seizure of the three items from his car was unconstitutional. Id. The state bears the burden of establishing an exception to the warrant requirement. See State v. Fitzgerald, 562 N.W.2d 288, 288 (Minn.1997) (state bears the burden of establishing the existence of an emergency justifying a warrantless entry under the emergency exception to the warrant requirement); State v. Mastrian, 285 Minn. 51, 56, 171 N.W.2d 695, 699 (1969) (upon challenge to a warrantless arrest, state has the burden of proving that the arrest did not violate the Fourth Amendment).

With respect to the metal bar, the state contends that the exception for searches incident to arrest applies. With respect to the toy car and ski mask, the state argues that the exception for inventory searches applies. Under the exception for searches incident to arrest, once a vehicle’s occupant is lawfully arrested the police may search the vehicle’s passenger compartment. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Robb, 605 N.W.2d 96, 100 (Minn.2000). The inventory exception, in turn, permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation. State v. Holmes, 569 N.W.2d 181, 188 (Minn.1997).

Search Incident to Arrest

The state argues that the metal bar was properly seized during a search incident to Ture’s arrest. Ture concedes that the police may conduct such searches without violating the Fourth Amendment, but nevertheless argues that probable cause is required to “seiz[e] specific items of property pursuant to such a search” and that the metal bar was improperly seized from his car because it did not have any “immediately apparent evidentiary value.”

Ture misconstrues the nature of a search incident to arrest, which is directed not only at preventing the destruction of evidence, but also at removing any weapons the arrestee might use to resist arrest or flee. State v. Mitchell, 285 Minn. 153, 161, 172 N.W.2d 66, 71 (1969); see also State v. Rodewald, 376 N.W.2d 416, 420 (Minn.1985). Accordingly, the metal bar need not have had “immediately apparent evidentiary value.” Because the metal bar could have been used as a weapon, we conclude that its seizure was proper as part of the search of Ture’s car incident to his arrest.

Inventory Search

When performing inventory searches, the police fulfill “administrative or caretaking functions” that protect the vehicle owner’s property and also protect the police from claims of lost or damaged property. Holmes, 569 N.W.2d at 186. The requirement of particularized inventory procedures is designed to make sure the intrusion is no greater than necessary to execute this “caretaking function.” Id. at 187 (quoting South Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)).

Ture acknowledges that Miller testified that the inventory was conducted according to Wright County Sheriffs Department policy, but argues that, because the state never introduced a written copy of the policy, the district court had no way to determine if the inventory was actually conducted according to the department’s policy. Our decision in Rodewald, however, demonstrates that both the existence of standard inventory procedures, as well as compliance with those procedures, may be established through testimony and does not require admission of the policy itself into evidence.

In Rodewald, the defendant sought to suppress evidence found in his wallet by a police officer and jailer conducting an inventory search of the defendant as part of the booking process. 376 N.W.2d at 418. Both the officer and jailer testified that such searches were standard procedure and included looking in wallets. The jailer further testified that this was in accordance with written jail policy. Id. Significantly, however, there is no indication that the written policy was admitted into evidence. Neither could recall which of them filled out an inventory sheet in that case, but the officer testified that one of them did so, and the jailer testified that an inventory is completed whenever property is taken from an arrestee. Id. This court held that it was clear from this testimony “that the search was carried out in accordance with standard procedures.” Id. at 421; see also United States v. Lowe, 9 F.3d 43, 45-46 (8th Cir.1993) (rejecting claim that a written inventory policy is required to establish the existence of standard procedures).

In this case, Miller testified that it was standard department policy in 1978 to inventory the contents of impounded cars and to make a list of those contents. He also provided details about the search itself. He testified that he and the officer assisting him removed all the items from Ture’s car and put them on the garage floor around the car, and that he recorded them on a detailed list as they were returned to the car.

In response, Ture argues that the fact that some items removed from the car were not identified on the inventory list demonstrates that the inventory search was not conducted according to department policy but was conducted with an investigatory motive. Miller acknowledged at trial that some items, including the metal bar, the toy car, and — possibly— the ski mask, were not recorded on the inventory list. We note, as discussed above, that the metal bar was properly seized at the time of Ture’s arrest and was not involved in the inventory search of Ture’s car. With respect to the other items, Miller explained that during the inventory they found a number of notebooks and pieces of paper listing license numbers, descriptions of females, first names (over 200), and descriptions of travel routes from places of work to houses. Because this seemed unusual, Miller notified his superiors, who took possession of several items, including the toy car and ski mask, in addition to the notebooks, pieces of paper, and the metal bar. Miller testified that, because he recorded items on the inventory list as they were returned to the car, items taken by his superiors before being returned would not necessarily have made it onto the list. Ture points to nothing in the record that would cast doubt on Miller’s explanation, nor does he explain why failing to list a few of the numerous items found in the car renders the entire search invalid. As it was in Rodewald, it is clear here that the inventory search of Ture’s car was conducted in accordance with standard procedures.

Although Ture asserts that the police had an investigatory motive when they searched his car, an inventory search need only be conducted in part for the purpose of obtaining an inventory. Holmes, 569 N.W.2d at 188. To be invalid, the investigatory motive must be the sole purpose behind the search, meaning that the search would not have occurred but for the investigatory motive. Id. Because the car Ture was driving was reported stolen, there is no question that impounding the car was proper. And, given Miller’s undisputed testimony that it was standard procedure to perform inventory searches of impounded cars, there is no basis for concluding that the purported investigatory motive was the sole purpose behind the inventory. Because we conclude that the inventory search of Ture’s car was conducted in accordance with standard procedures and that the inventory search was conducted at least in part for the purpose of obtaining an inventory, the seizure of the toy car and ski mask was proper.

Retaining the Seized Items

Ture argues that the district court erred in holding that, under Minn.Stat. § 626.04 (1978), the state had the authority to retain his property after he was released without charges following his December 19,1978, arrest.

The version of section 626.04 in effect in 1978 provides, in relevant part:

When any officer shall seize, with or without warrant, any property or thing, the same shall be safely kept by direction of the court or magistrate, so long as may be necessary for the purpose of being produced as evidence on any trial, and then the property or things shall, unless otherwise subject to lawful detention, be returned to the owner thereof, or to such other person as may be entitled to the possession of the same and the other things so seized may be destroyed or otherwise disposed of under the direction of the court or justice of the peace.

Ture argues that the statutory language indicating that property seized by an officer “shall be safely kept by direction of the court or magistrate so long as may be necessary for the purpose of being produced as evidence on any trial” means that the police must obtain specific permission from a court in order to retain seized property. The state argues that this interpretation is absurd because it would “place an enormous burden on law enforcement and on district courts” by “requiring] police to obtain judicial authorization every time evidence is seized and not immediately returned.” The state interprets the statutory language as meaning “that evidence held by the police is under the direction of the court; [it] is under the court’s control, and may be ordered returned by the court.” We agree with the state’s interpretation of section 626.04 and conclude that retention of the metal bar, the t< j car, and the ski mask was not impro, ier.

Ture also argues that, after his 1981 trial for the murder of Diane Edwards, see State v. Ture, 353 N.W.2d 502 (Minn.1984), the state was required to return his property “unless otherwise subject to lawful detention.” The problem with this argument is that it ignores the statutory language that permits the seized property to be retained “so long as may be necessary for the purpose of being produced as evidence on any trial.” Because Ture continued to be a suspect in the Huling murders, particularly in light of his confessions to Toby Krominga and Randall Ferguson, but had not been tried for any of them, retention of the items for the purpose of introducing them at a future trial was proper.

II.

We next address whether the district court erred when it permitted the state to introduce the toy car seized from Ture’s car or when it allowed an expert witness to testify that the leather-wrapped metal bar seized from Ture’s car caused the bruise injury found under Alice Huling’s right breast.

Toy Car

Ture moved to suppress the toy car and evidence related to it on the basis that it was irrelevant and prejudicial. Following a pretrial hearing held in December 1999 on this issue, the court denied Ture’s motion, finding the toy car to be “clearly relevant to the possibility that [Ture] was at the murder site.” The court also found that the jury could properly weigh the evidence without any undue prejudice to Ture.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. Rule 401 “adopts a minimal relevancy approach.” State v. Provost, 490 N.W.2d 93, 99 (Minn.1992). Rulings on the “relevancy of evidence are generally left to the sound discretion of the trial court.” State v. Horning, 535 N.W.2d 296, 298 (Minn.1995).

Ture argues that the toy car was irrelevant because “no logical basis” supports the inference that it was William’s car. We disagree. The seized toy car supports an inference that Ture was present at the Huling house. This is particularly true, as the district court noted, in fight of Ture’s alleged statements to Randall Ferguson concerning the toy car. Moreover, given Ture’s evasive responses during the December 20, 1978, interview concerning the toy car’s origin and their inconsistency with Ture’s testimony at the suppression hearing, the toy car is directly relevant to the question of Ture’s guilt. This satisfies Rule 401’s “minimal relevancy approach.” Provost, 490 N.W.2d at 99.

Ture next claims that, under Minn. R. Evid. 403, the prejudicial effect of admitting the toy car substantially outweighed its probative value. He argues that the toy must have had “a powerful effect on the jury” because “the incredibly sad events that befell William Huling” must have made them want to believe that it was William’s. This argument lacks merit. While it suggests that William Ruling’s experience had a prejudicial effect on the jury, it says little if anything about the toy car’s prejudicial effect. Ture has offered no other basis on which we can conclude that the prejudicial effect of admitting evidence related to the toy car substantially outweighed its probative value. We therefore conclude that the district court did not abuse its discretion when it admitted evidence related to the toy car at trial.

Expert Testimony

Trial courts have discretion in determining whether to admit an expert’s opinion. State v. Bradford, 618 N.W.2d 782, 793 (Minn.2000) (citation omitted). Here, the district court permitted Dr. Daniel Davis to testify that the metal bar caused the bruise found under Alice Hiding’s right breast. Ture argues that it was “outside the realm of Dr. Davis’s expertise” and of forensics “to conclude that only the bar owned by Mr. Ture could have inflicted the bruise.” Specifically, Ture argues that it was improper for Dr. Davis to give the “categorical judgment” that it was Ture’s bar that caused the bruise because Dr. Davis did not know whether identical bars existed among “the untold numbers of objects in the world.”

As the state points out, however, accepting Ture’s argument would mean that “no witness can ever make a positive identification of an object” because no witness could claim to have seen every object in the world. Moreover, Dr. Davis did not make a categorical statement that no other bar could have caused the bruise. He merely stated, “I would find it hard to believe that we’re ever going to And another bar just like this anywhere in the world.” Thus, the jury was aware that Dr. Davis understood that an identical bar might exist but that, in his opinion, it was highly unlikely. We therefore conclude that the district court did not abuse its discretion in permitting Dr. Davis to testify that the metal bar caused the bruise.

III.

With respect to the claims raised in Ture’s pro se brief, Ture first argues that his request for a change of venue should have been honored because of the publicity in this case. However, Ture provides nothing to sustain his burden of proving “actual prejudice” from the publicity. State v. Everett, 472 N.W.2d 864, 866 (Minn.1991). Ture also claims ineffective assistance of counsel. To prevail, Ture has the burden of demonstrating that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) a reasonable probability that the outcome would have been different but for counsel’s errors. State v. Lahue, 586 N.W.2d 785, 789 (Minn.1998). Although Ture advances several alleged errors committed by his trial counsel, he makes no attempt to establish either of the above elements and therefore fails to meet his burden. Finally, Ture claims that, because he was not given the Miranda warning at any time, his alleged admissions to law enforcement investigators should not have been admitted. Again, Ture fails to provide any authority or argument to support this claim and we therefore deem that claim waived. See McKenzie v. State, 583 N.W.2d 744, 746 n. 1 (Minn.1998) (defendant who “alludefd]” to certain issues in his brief waived those issues by failing to address them in the argument portion of his brief).

Affirmed.

      . The record reflects that at the time of the murders William Huling had a toy car that was "probably identical” to the toy car found in Ture's car.

      . Section 626.04 was amended in 1983. Act of June 14, 1983, ch. 359, § 111, 1983 Minn. Laws 2488. Although the amendment removed obsolete references to "justice of the peace” and "magistrate” and made other changes as well, the statutory language at issue in this case — "shall be safely kept by direction of the court” — was not changed. No amendments have occurred since 1983.

      . As noted previously, Ture was interviewed on December 20, 1978, by Deputy James Kos-treba and Detective Ross Baker of the Stearns County Sheriffs Department. A transcript of that audiotaped interview shows that the following colloquy took place regarding the toy car:
      Q: I noticed a little toy there. A little thing with Batman, was that in the car when you got it too or do you recall where that might have come from?
      A: It's mine. I got grandkids.
      Q: Oh, you have grandkids?
      A: My daughter does. I'm uncle or whatever.
      Q: Well if your daughter has children well then you'd be a grandfather then, huh?
      A: Yea.
      Q: How old are you?
      A: No. I mean my sister[.]
      Q: Oh your . . . ?
      A: Uncle, yea. Uncle.
      Q: Your your [sic] uncle’s children and they would be what, they would be your grandchildren or won’t be his grand.... ?
      A: I'm the uncle. My sister’s got kids I'm the uncle, right?
      Q: Oh, I see. Alright. And then you were around them after you picked up this car here?
      A: Well what is that ah difference that a couple of toys make?
      Q: Well it might make a lot of difference. You never know. Huh. I just wanted to know if you know where that one come from if it was in the car or or [sic] not? Do you recall it?
      A: No, I don't see where it makes any difference.
      Q: Well it could though. It could make a difference.
      A: Well until you prove it to me.
      Q: Prove what. I mean where you got it?
      A: No. Till you prove me what this whole charade is.

      . While Ture complains about Dr. Davis's testimony, he does not complain about Dr. McGee's. Yet we see no substantive difference between Dr. Davis's testimony and the testimony of Dr. McGee — that the bruise was caused by either Ture's metal bar or one of “similar configuration,” meaning a metal bar that "look[s] identical.” Thus, had Dr. Davis's testimony on that point been excluded, the outcome would have been the same.


source: Caselaw Access Project

author: STRINGER, Justice.

license: Public Domain

text:
    Xavier GARZA, Jr., Respondent, v. STATE of Minnesota, Petitioner, Appellant. Xavier Garza, Sr., Respondent, v. State of Minnesota, Petitioner, Appellant.
    Nos. C8-00-526, CX-00-527.
    Supreme Court of Minnesota.
    Aug. 16, 2001.

      Michael Hatch, Attorney General, Kelly S.Kemp, Assistant Attorney General, Lisa Borgen, Clay County Attorney, for appellant.
    Mark D. Nyvold, for Xavier Garza, Jr., respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, for Xavier Garza, Sr., respondent.
   OPINION

STRINGER, Justice.

Following a controlled buy of marijuana by Fargo, North Dakota police, the trail of supply led to the home of Xavier Garza, Sr., his son, Xavier Garza, Jr. (collectively respondents) and Dora Garza, the wife of Xavier Garza, Sr., in Dilworth, Minnesota. A Clay County Sheriffs Office detective executed' a search of the residence and storage shed. The warrant included a provision for an unannounced entry and was issued by a magistrate based upon the detective’s affidavit that recited numerous incidences of prior drug dealing, possession and usage by Xavier Garza, Jr. but was not specific as to the need for an unannounced entry. When the warrant was executed, only Dora Garza was home. Based upon evidence seized in the raids, including currency used by Fargo police for the controlled buy of narcotics, respondents were arrested and charged with one count each of a fourth-degree controlled substance crime in violation of Minn.Stat. § 152.024, subd. 1(4) (2000). Respondents’ pretrial motion to suppress the seized evidence based on the failure of the warrant to furnish particularized reasons for the need for an unannounced entry was rejected, and respondents were tried on stipulated facts and found guilty as charged. Respondents initially filed notices of appeal, but then instead pursued state postconviction relief. After the trial court denied postconviction relief, respondents appealed and the court of appeals reversed the convictions on the ground that the search warrant was issued without a showing of particularized circumstances justifying the need for an unannounced entry. We affirm in part and reverse in part.

On February 10, 1998, a Fargo, North Dakota police officer made a controlled buy of 56 grams of marijuana from Lucas Sipes. Sipes identified his supplier as “Guy” (later identified as Guy Nicholls) who lived in a trailer court in Moorhead, Minnesota, and said that Nicholls received his marijuana from a person named “Harvey” and it was delivered in a red Marlboro bag at Harvey’s home in Dilworth, Minnesota. The next day the police set up a surveillance of Harvey’s home in Dil-worth, and observed Nicholls arrive in a vehicle with Rebecca Roth, enter the residence and leave with a red Marlboro bag. That same day the police seized three ounces of marijuana, packaging materials and a scale from Nicholls’ trailer and arrested Nicholls and Roth. Roth provided a statement saying that respondents sold and stored marijuana at their house. Further evidence of drug dealing occurred on February 22, 1998 when Xavier Garza, Jr. was stopped by Dilworth police for a traffic violation and was found in possession of marijuana. On the morning of February 24, 1998 Dilworth police searched the garbage at the Garza residence and discovered a marijuana smoking device and small containers with marijuana residue.

Later in the day on February 24, 1998 a detective with the Clay County Sheriffs Department applied for a search warrant for respondents’ residence and storage shed supported by an affidavit stating that authorities had reason to believe that they would find controlled substances and evidence of the sale and distribution of controlled substances at the Garza residence. It identified Garza, Jr. as the subject of a three-year investigation, his arrest for possession of marijuana in 1995 after receiving information that he was selling marijuana out of his residence, and observations of activity consistent with drug trafficking outside his residence. The affidavit further referred to an informant’s statement that he purchased drugs from Garza, Jr., other information from various sources that Garza, Jr. was involved in the sale of drugs, Roth’s statements to the police, the traffic stop, and the smoking device found in the garbage. The affidavit also included a request for an unannounced entry based on the following statement:

Persons involved in Drug trafficking will destroy evidence if given prior warning. Drug traffickers also will use violence if given prior warning therefore Law Enforcement needs the element of surprise to protect themselves from harm.

Based upon the affidavit, the magistrate issued the search warrant with a provision authorizing an unannounced entry for the Garza residence and the shed located on the southeast corner of the lot.

That same day authorities executed the search warrant, entering the Garza residence without announcing their authority or purpose. Neither respondent was home at the time the search was conducted but Dora Garza was present. Police found hidden under some clothing in Garza Sr.’s bedroom $1,465 in currency, including $150 in “buy money” from the Fargo Police Department narcotics “buy” fund. In Garza, Jr.’s bedroom police found marijuana, marijuana smoking devices, and other drug-related evidence. In the storage shed located outside the residence police found a pound of marijuana.

Respondents were charged with one count each of violating Minn.Stat. § 152.024, subd. 1(4) (sale of a controlled substance in a school zone). Respondents filed motions to suppress the evidence seized during the search of their residence on the grounds that the affidavit supporting probable cause for the search warrant contained reckless misrepresentations and omissions and that the application for an unannounced entry failed to establish particularized circumstances justifying the need for an unannounced entry. After an omnibus hearing the trial court denied the motions to suppress.

Respondents were found guilty following trials to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). They initially appealed directly to the court of appeals but were granted a dismissal without prejudice to pursue postconviction relief. Respondents’ challenge to the unannounced entry was rejected on the postconviction court’s determination that under our decision in State v. Lien, 265 N.W.2d 833 (Minn.1978), and the decision of the U.S. Supreme Court in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the particularized facts required to support an unannounced entry were supplied by police testimony at the omnibus hearing-Xavier, Jr.’s propensity for violence and his possible possession of a firearm-and that this testimony amounted to a “strong showing” that an announced entry would be dangerous to the officers. The state did not contest respondents’ standing to raise the unannounced entry in light of their absence from their residence when the warrant was executed, nor did the trial court refer to it in its order denying post-conviction relief.

The court of appeals reversed, relying on the decision of the Supreme Court in Richards and our decision in State v. Was son, 615 N.W.2d 316 (Minn.2000). It reasoned that after Richards an unannounced entry must be supported by more than boilerplate language in the affidavit stating that an unannounced entry is necessary to avoid injury and destruction of evidence and evidence that the premises is being used for drug trafficking. The court then addressed the ruling by the postcon-viction court relying on the police testimony at the omnibus hearing to supply the missing particularized showing of need. The court of appeals held that statements made after-the-fact at an omnibus hearing cannot be the basis of an unannounced entry because they were not provided to the magistrate in the affidavit attached to the warrant application. Thus there was no advanced authorization of the unannounced entry. The court held that the search of the shed was also unauthorized because it was within the curtilage of respondents’ home and was therefore subject to the same constitutional protection.

The state argued for the first time at the court of appeals that respondents did not have standing to contest the unannounced entry because they were not home when the search was conducted. The court of appeals disagreed holding that respondents had standing because they were long-time residents in their home. The state also raised a “good faith” exception argument under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Cal.1984), that even if the unannounced entry was unauthorized, the evidence seized should not be suppressed because the police “acted in good faith reliance on a search warrant issued by a neutral and detached magistrate.” The court held that the Leon “good faith” exception rule does not apply to police failure to provide sufficiently particularized justification for an unannounced entry. The court therefore ordered that the evidence seized in the unannounced entry search must be suppressed and reversed the conviction.

I.

Because standing is a threshold issue, wq begin with the state’s argument that respondents do not have standing to contest the unannounced entry provision of the search warrant because they were not home when the search warrant was executed. The state did not raise an issue of standing at either the omnibus hearing or the postconviction hearing, and we ordinarily will not review issues that are raised for the first time on appeal unless a decision is necessary in the interests of justice. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). The record is silent as to harm that might have been inflicted, if any, by reason of the unannounced entry despite respondents’ absence from the dwelling, or to the privacy interests of others that might have been invaded, but the court of appeals held that respondents had standing because they had a “long-term connection to the premises.” While we question whether standing to challenge an unannounced entry can be conferred as the court of appeals ruled, we conclude that the state waived the issue of standing by failing to raise it in an omnibus hearing in the trial court. At that point the factual details of the entry could have been developed to determine to what extent the respondents’ absence removed any practical significance to the unannounced entry. Because the state failed to take advantage of its opportunity to build a factual record with respect to standing, we do not believe that resolution of the standing issue is necessary to the interests of justice. We therefore affirm the court of appeals’ ruling that respondents have standing but on the basis that the state waived its right to raise the issue by failing to assert it before the trial court.

II.

We next consider whether the information presented in the affidavit was sufficient to justify a search warrant providing for an unannounced entry. 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, Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), and “evidence should be suppressed when the circumstances do not warrant an unannounced entry,” Wasson, 615 N.W.2d at 320. Facts justifying an unannounced entry must be presented to the magistrate at the time of application, Lien, 265 N.W.2d at 838. Failure to supply the necessary supportive facts to the issuing magistrate will nullify the warrant and facts later presented, as here, will not bring the warrant back to life.

In 1997 the U.S. Supreme Court in Richards held that “[i]n order to justify a ‘no-knock’ entry, the police 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.” Richards, 520 U.S. at 394, 117 S.Ct. 1416 (emphasis added). In enunciating this principle, the Supreme Court struck down the Wisconsin Supreme Court’s blanket rule approving unauthorized, unannounced entries for felonious drug cases. Id. at 395, 117 S.Ct. 1416. The Wisconsin Supreme Court based its ruling on the principle that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation because of the dangerous nature of drug trafficking. State v. Richards, 201 Wis.2d 845, 549 N.W.2d 218, 221 (1996). The Supreme Court rejected the rationale of the Wisconsin Supreme Court because it overgeneralized the risk of violence and danger in drug investigations and could be applied to support blanket exceptions to the knock-and-announce rule for other kinds of criminal activity. Richards, 520 U.S. at 392-94, 117 S.Ct. 1416.

The state contends, nonetheless, that information in the affidavit tending to show that respondents used their residence as an outlet to sell drugs is sufficient under our 1978 decision in Lien to justify the warrant authorizing the unannounced entry. The state fails to take into account that under the Supreme Court ruling in Richards requiring a showing of need “under particular circumstances,” which we adopted in Wasson, 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, Wasson, 615 N.W.2d at 320, there was no particularized showing of dangerousness, futility or destruction of evidence here. The only expression of need for an unannounced search was in general terms, that “Persons involved in Drug trafficking will destroy evidence * ⅜ * [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 Wasson. We therefore affirm the court of appeals in its conclusion that the unannounced entry provision of the warrant was unauthorized and the evidence seized in the search of the home must be suppressed.

III.

The state contends that even if the unannounced entry into respondents’ home was not constitutional, the marijuana discovered in the shed is admissible because the shed is not accorded the same Fourth Amendment protection from unannounced entry as the dwelling. The court of appeals determined that the evidence recovered in the shed was not admissible because the shed was within the curtilage of the dwelling and therefore the knock-and-announce rule applied to the shed. The state argues the knock-and-announce rule should not apply to the shed even if it is within the curtilage of the dwelling because the purposes of the rule are not implicated when the building to be searched is an unoccupied storage shed.

We have stated that the purpose of the knock-and-announce rule is to prevent the unnecessary destruction of property and mistaken entry into the wrong premises, protect against unnecessary shock and embarrassment and decrease the potential for a violent response when a search is executed. Wasson, 615 N.W.2d at 319-20. These objectives are implicated when a building within the curtilage of a dwelling is searched, particularly with regard to minimizing damage and avoiding a violent response of an owner to a stranger forcing entry into the building. A dwelling’s curtilage is generally the area so immediately and intimately connected to the home that within it, a resident’s reasonable expectation of privacy should be respected. See State v. Crea, 305 Minn. 342, 345-46, 233 N.W.2d 736, 739 (1975). A reasonable expectation of privacy would extend to a storage shed if located within the curtilage because entry would implicate rights to privacy to personal property within the shed as well as instigate a potentially violent response of a resident. Thus, we hold that absent a showing of necessity, authorities making an unannounced entry into a storage building within the curtilage of a dwelling must have a valid warrant to do so or must first announce their authority and purpose at the dwelling before entering the storage building.

The location of the shed with respect to respondents’ home was not established at the trial court and there is no record from which to determine whether the shed lay within the curtilage of the dwelling. We therefore reverse the ruling of the court of appeals with respect to the suppression of evidence found in the shed and remand to the trial court to determine whether the shed lay within the curtilage of respondents’ dwelling.

IV.

Finally, the state argues that even if the unannounced entry was unconstitutional, the officers acted in good faith on the basis of a neutral magistrate’s authorization and therefore under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), the evidence recovered in the house and the shed was admissible. In Leon the government sought the admission of evidence seized pursuant to an invalid search warrant on the basis that the officers acted in good faith on a faeially-valid warrant. Id. at 902-03, 104 S.Ct. 3405. Reasoning that the exclusionary rule functions to deter unlawful police behavior, the Supreme Court held that the evidence seized was admissible in large part because the officers acted in good faith on the warrant of a neutral magistrate. Id. at 915-26, 104 S.Ct. 3405. While we have no reason to believe police executing the warrant in this case did not act in good faith, even if we were to adopt Leon the good faith of the police cannot cure the absence of particularized circumstances in the warrant application justifying an unannounced entry. See State v. Zanter, 535 N.W.2d 624, 634 (Minn.1995) (holding good faith of police cannot cure clear insufficiency of application for warrant). We interpret the requirement in the Minnesota Constitution that persons not be subject to unreasonable searches and seizures to require sufficiently particularized circumstances justifying an unannounced entry before such entry may be authorized. As we stated in Wasson, the showing is “not high,” but the officer must point to a particular fact about the residence at issue that would justify an unannounced entry. 615 N.W.2d at 320-21.

In summary, we affirm the court of appeals in its conclusion that the unannounced entry into the respondents’ dwelling was unauthorized and evidence seized in the dwelling must be suppressed. As to the evidence seized in the search of the shed, we reverse the court of appeals’ ruling that the shed was a part of the curti-lage of the dwelling as unsubstantiated by the record and remand to the trial court for determination of this issue and the admissibility of the evidence seized in the shed.

Affirmed in part; reversed in part.

      . To the extent Lien can be understood to authorize an unannounced entry on a showing only that the premises were used for drug trafficking, it is overruled.


author: Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard T. JELLINGER, an Attorney at Law of the State of Minnesota.
    No. C3-00-1681.
    Supreme Court of Minnesota.
    Aug. 17, 2001.
   ORDER

On May 3, 2001, this court publicly reprimanded respondent Richard T. Jellinger and placed him on supervised probation for two years. In re Jellinger, 625 N.W.2d 143 (Minn.2001). The terms of probation included the requirements that respondent cooperate with the Director in any investigation of additional allegations of professional misconduct, that he cooperate with the Director’s efforts to monitor compliance with the terms of probation, and that he abide by the Rules of Professional Conduct. Id. at 148-49. We further provided that:

Failure to abide by the conditions of probation will result in more severe sanctions, including the possibility of an immediate temporary suspension pending a full evidentiary hearing on any alleged violations of probation or further violations of the Rules of Professional Conduct.

Id. at 149.

The Director has filed a petition for revocation of probation and for further disciplinary action. The Director has also filed a petition for temporary suspension under Rule 16, Rules on Lawyers Professional Responsibility (RLPR). In the petition for temporary suspension, the Director alleges that respondent has violated the terms of his probation and the Rules of Professional Conduct in failing to respond to notices of investigation of additional complaints of professional misconduct and in failing to respond to correspondence regarding respondent’s probation. The Director further alleges that respondent’s failure to cooperate has prevented the Director from implementing probation.

Respondent has not answered the petition for temporary suspension. Therefore, the allegations in the petition are deemed admitted and the court “may enter an order suspending the lawyer pending final determination of disciplinary proceedings.” Rule 16(c), RLPR.

We have independently reviewed the file and conclude that based on the allegations in the petition for temporary suspension, which are deemed admitted, respondent has violated the terms of his court-ordered probation and the Rules of Professional Conduct. See Minn. R. Prof. Conduct 8.1(a)(3) (requiring attorney to provide information requested in disciplinary investigation); In re Hoedeman, 620 N.W.2d 714, 717 n. 2 (Minn.2001) (noting that failing to cooperate with monitoring of probation violates Minn. R. Prof. Conduct 3.4(c) and 8.4(d)). We further conclude that temporary suspension is warranted under our May 3, 2001, order and Rule 16, RLPR.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard T. Jellinger is temporarily suspended from the practice of law in Minnesota. Respondent shall comply with the requirements of Rule 26, RLPR.

BY THE COURT:

Paul H. Anderson Associate Justice


author: PAGE, Justice. PAUL H. ANDERSON, J. BLATZ, Chief Justice GILBERT, Justice

text:
    STATE of Minnesota, Respondent, v. Thomas Wayne CALMES, Petitioner, Appellant.
    No. CX-00-1273.
    Supreme Court of Minnesota.
    Aug. 23, 2001.

      John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Michelle E. Moren, Roseau County Attorney, Roseau, for respondent.
   OPINION

PAGE, Justice.

On February 13, 1997, pursuant to a plea agreement, appellant Thomas Calmes pleaded guilty to second-degree criminal sexual conduct in violation of MinmStat. § 609.343, subd. 1(d) (2000), and first-degree burglary in violation of MinmStat. § 609.582, subd. 1(c) (2000). In return, the state agreed that Calmes would receive the presumptive sentence under the sentencing guidelines, which the parties believed would be an executed 57-month prison term. At his sentencing hearing on March 17, 1997, Calmes was sentenced to an executed 57-month term on the burglary charge and a concurrent 48-month term on the criminal sexual conduct charge. Although Calmes’ criminal sexual conduct conviction required that his sentence include a 5-year conditional release term, see Minn.Stat. § 609.346, subd. 5(a) (1996), there is no record of any discussion of a conditional release term as part of the plea negotiations or at either the plea or sentencing hearings. No conditional release term was imposed by the sentencing court at that time.

Approximately 2 weeks after sentencing, the Department of Corrections requested clarification from the sentencing court as to whether the court intended to include a conditional release term as part of Calmes’ sentence. In a letter dated April 10, 1997, the court responded that it intended to apply a 5-year conditional release term. The Department of Corrections subsequently changed Calmes’ sentencing record to include the term.

Calmes immediately brought a motion to have the conditional release term removed from his sentence. The state did not oppose this motion and on July 30, 1997, the sentencing court vacated Calmes’ 5-year conditional release term.

We subsequently held in State v. Humes, 581 N.W.2d 317, 319-20 (Minn.1998), and State v. Garcia, 582 N.W.2d 879, 881 (Minn.1998), that the imposition of a conditional release term for certain criminal sexual conduct convictions, including the conviction at issue in this case, is mandatory and nonwaivable. See also State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn.2000); State v. Brown, 606 N.W.2d 670, 674 (Minn.2000).

On November 22, 1999, Calmes was released from prison and placed on supervised release. On May 5, 2000, during the period of supervised release and without notice or a hearing, the sentencing court reimposed the 5-year conditional release term through an amended sentencing order. On appeal, citing Humes and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the court of appeals rejected Calmes’ double jeopardy claim. State v. Calmes, 620 N.W.2d 61, 63-64 (Minn.App.2000). Relying on Humes and Garcia, the court concluded that Calmes was not denied due process because, like the defendants in those cases, he had no crystallized expectation of fínality in his original sentence. Id. at 64-65. Although not raised by Calmes in his appeal to the court of appeals, the court further concluded that it is not necessary to hold a hearing “each time a sentence is modified only to conform to statutory mandate.” Id. at 65. In his appeal to this court, Calmes raises the same constitutional claims that he raised below and, in addition, challenges the court of appeals’ ruling that he was not entitled to a hearing before his sentence was revised.

I.

We first consider Calmes’ due process claim. The United States and Minnesota Constitutions, through their due process clauses, “ensure that sentencing proceedings observe the standards of fundamental fairness essential to justice.” Humes, 581 N.W.2d at 320. We acknowledged in Humes that other courts have recognized that due process concerns are implicated when a defendant’s sentence is corrected. Id. at 321. We cited United States v. Lundien, 769 F.2d 981, 985-87 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986), and Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978), for the proposition that due process may be violated when a defendant’s sentence is enhanced after the defendant has developed a crystallized expectation of finality in the earlier sentence. Humes, 581 N.W.2d at 321 n. 22.

As in this case, the defendant in Humes challenged a district court’s correction of his sentence for a criminal sexual conduct conviction by adding a conditional release term. Id. at 318. At the sentencing hearing, the court stayed Humes’ 34-month sentence and imposed probation for 5 years. The conditional release term required by statute was not included as part of the sentence. After Humes violated his probation, Humes’ sentence was executed. Thirty-two months after Humes was originally sentenced, the sentencing court corrected his sentence by adding the conditional release term. On appeal, we concluded that under the facts Humes did not have a crystallized expectation of finality in his sentence and therefore his due process rights were not violated. Id. at 321.

In Garcia, the sentencing court also failed to include the conditional release term at the time of sentencing. 582 N.W.2d at 880-81. Twenty months after Garcia was originally sentenced, the sentencing court corrected the sentence by adding the conditional release term. On appeal, we concluded that “Garcia had not developed a crystallized expectation of finality in his sentence such that double jeopardy or due process concerns would arise,” and affirmed the sentencing court’s correction of his sentence. Id. at 881.

We did not state definitively in Humes or later in Garcia that we recognize due process limits on a court’s ability to modify a sentence or a test for determining whether a defendant had a crystallized expectation of finality in the sentence. Therefore, we take this opportunity to explain that we recognize a due process limitation on a court’s ability to modify a sentence, and evaluate whether the modification of Calmes’ sentence violated due process.

In Breest, the defendant was sentenced to life imprisonment. 579 F.2d at 97. Approximately 2 weeks after sentencing, the lower court held a hearing and certified the defendant’s crime as “psychosexual in nature” under New Hampshire law. Id. The certification meant that the defendant would have to serve 40 years before becoming eligible for parole, a restriction not inherent in the original sentence. The defendant challenged the amendment to the sentence on double jeopardy grounds. The First Circuit rejected that claim, but in doing so stated:

[W]e note our concern that the power of a sentencing court to correct even a statutorily invalid sentence must be subject to some temporal limit. When a prisoner first commences to serve his sentence, especially if it involves a long prison term as here, the prospect of release on parole or otherwise may seem but a dimly perceived, largely unreal hope. As the months and years pass, however, the date of that prospect must assume a real and psychologically critical importance. The prisoner may be aided in enduring his confinement and coping with the prison regime by the knowledge that with good behavior release on parole or release outright will be achieved on a date certain. After a substantial period of time, therefore, it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner’s expectations by postponing his parole eligibility or release date far beyond that originally set. We need not decide, however, how long or under what circumstances the state or a sentencing court constitutionally can wait to enhance an invalid sentence. The short period of time involved here clearly was permissible.

Id. at 101.

In Lundien, the defendant was originally sentenced to two concurrent 10-year sentences. 769 F.2d at 982. Five days later, the district court increased the sentence to 20 years, explaining that it had meant the 10-year terms to run consecutively. In examining a due process challenge, the Fourth Circuit noted that due process can be denied if an amendment to a sentence is made out of vindictiveness or other improper motive of the trial court, or when a sentence is “enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized.” Id. at 987. The court in Lundien found no indication of an improper motive and, because Lundien had served only 5 days of a 10-year sentence, his expectations of finality in his sentence had not crystallized.

Therefore, in both Breest and Lundien, the First and Fourth Circuits recognized a due process limit on a court’s ability to modify a sentence once the defendant has begun serving it, but found that the facts in each case did not indicate a due process violation. In DeWitt v. Ventetoulo, the First Circuit again addressed a due process challenge to a modified sentence. 6 F.3d 32 (1st Cir.1993), cert. denied, 511 U.S. 1032, 114 S.Ct. 1542, 128 L.Ed.2d 193 (1994). DeWitt was given a life sentence, which, under Rhode Island law, meant that he was not eligible for parole for at least 10 years. In 1981, 3 years into his sentence, DeWitt came to the aid of a prison guard being assaulted by an inmate, and later testified at the trial. In recognition of DeWitt’s efforts, the superior court held a hearing and entered an order suspending all but 15 years of DeWitt’s life sentence, shortening the minimum period before which he could seek parole. In January 1987, DeWitt was released from prison on parole. He began a painting and siding business and resumed his relationships with family members and his girlfriend. Id. at 33.

Eight months after his release, DeWitt was in an altercation with a former landlord in which the landlord and his wife were injured. Instead of seeking revocation of DeWitt’s parole, the state asked the superior court to vacate its 1981 order suspending in part DeWitt’s original life sentence. The court granted the motion and DeWitt was reincarcerated under his life sentence. DeWitt’s petition for habe-as corpus, claiming a due process violation, was granted by the district court. On appeal, the First Circuit stated:

We are concerned here not with the substantive grounds of a state’s decision to reduce or increase a sentence, but rather with the inherently procedural issue of whether and when a state can reopen a matter after a final unappealed decision, after a substantial lapse in time during which the state had actual knowledge of the error, and after a significant change in circumstances.

Id. at 34. The court acknowledged that a defendant does not automatically acquire a vested interest in an erroneous sentence, and that only in an “extreme case” will a revision be so unfair that it amounts to a violation of due process. Id. at 35. The court rejected any single test for a due process violation, but considered the lapse of time between the original mistaken sentence and the attempted increase, whether the defendant contributed to the mistake, the reasonableness of the defendant’s expectations, the prejudice of the sentencing change to the defendant, and the diligence exercised by the state in seeking the change. The court noted that the lengthy delay in the correction of the sentence and DeWitt’s changed circumstances were not decisive, but were relevant to whether due process was violated. The court also noted that the state appeared to have sought to correct the sentence to avoid the due process obligations that attach to parole revocations. The court concluded that the various considerations weighed in favor of finding a “very rare exception to the general rule that courts can, after sentence, revise sentences upward to correct errors.” Id. at 36. The court therefore held that the resentencing violated due process.

Consistent with this authority, we recognize there are due process limits on a court’s ability to modify a sentence to correct an error. However, we agree with the First Circuit in DeWitt that such cases will be rare. We also find the considerations the court used in DeWitt helpful to our analysis of Calmes’ due process claim without establishing any sort of formula for a due process violation.

We consider first the length of the delay in correcting the sentence. Calmes argues that his ease is distinguishable from both Humes and Garcia because the time period between his original sentencing date and the date of the amended sentencing order — 37 months — is greater than the time period involved in either Humes (32 months) or Garcia (20 months). Although Calmes’ sentence was corrected 37 months after his original sentencing, we do not view the 5-month difference between the correction of Humes’ sentence after 32 months and Calmes’ sentence after 37 months, standing alone, as significant in establishing a due process violation.

Passage of time is not the only consideration of whether a correction of a sentence violates due process. Calmes also argues that, unlike the defendants in Humes and Garcia, intervening circumstances gave him reason to believe that he would not be subject to a conditional release term. Specifically, Calmes notes that the sentencing court had vacated the previously imposed conditional release term almost 3 years before his sentence was amended, and that he had been released from prison over 5 months before the amendment. In this respect, he is perhaps more like DeWitt, who had been released from the institution. Calmes argues that, because of these circumstances, he suffered prejudice in the form of “dashed expectation^ and hope[s] regarding the sentence he was serving.” Finally, he claims that “the state did absolutely nothing to dispel [his] expectation.”

While Calmes’ conditional release term, first imposed, was vacated on July 30, 1997, we do not see that fact as determinative of a due process violation. At the time conditional release was removed from his sentence, Calmes was on notice that a statute required that he serve a conditional release term. Moreover, because citizens are presumed to know the law, State v. King, 257 N.W.2d 693, 697-98 (Minn.1977), once this court issued its decisions in Humes and Garcia holding that the conditional release term required by section 609.346, subdivision 5(a), was mandatory and nonwaivable, Calmes could not have developed a reasonable crystallized expectation of finality in a sentence that did not include a mandatory and nonwaivable condition. Thus, although the court had previously removed the conditional release term, Humes and Garcia demonstrated that the term was subject to reinstatement upon appeal or at the request of the Commissioner of Corrections.

Calmes also argues that his expectation had become crystallized because he had been released for over 5 months when the amended sentencing order was issued. Calmes was on supervised released at that time, however. Supervised release imposes on an offender a series of restrictions that should have made clear to Calmes that he remained in the custody of the commissioner despite being out of the institution. See Minn. R. 2940.2000 (1999) (imposing reporting and contact requirements and restrictions on use of intoxicants, possession of firearms, and departure from state on those on supervised release); Minn. R. 2940.2100 (1999) (authorizing commissioner of corrections to impose special conditions of release regarding contact with specified persons, travel, treatment programs, etc.). These restrictions on Calmes’ freedom should have imparted to him that his sentence was in no way complete. As the court in DeWitt noted, the change of circumstances resulting from release from the institution is not determinative of a due process violation. 6 F.3d at 35.

While there are similarities between Calmes and DeWitt in this regard, a significant distinction between DeWitt and this case is the court’s finding in DeWitt that the state appears to have singled out DeWitt for correction of his sentence, and did so to avoid a parole revocation hearing. Id. In contrast, it does not appear that Calmes has been singled out for imposition of the conditional release term. See Jumping Eagle, 620 N.W.2d 42; Brown, 606 N.W.2d 670; Garcia, 582 N.W.2d 879; Humes, 581 N.W.2d 317. The court in DeWitt noted that the cases in which relief based on due process is denied were distinguishable in that the defendant was still in prison, the lapse of time between the original sentence and its correction was not significant, or the defendant almost certainly knew or should have known that an error in sentencing had been made. 6 F.3d at 36. In this case, Calmes was still subject to supervised release at the time of correction of the sentence, and knew or should have known that a mandatory and nonwaivable aspect of his sentence had been omitted.

While the court’s action undoubtedly dashed Calmes’ hopes regarding his sentence, any expectation regarding the finality of his sentence was not reasonable in light of his status on supervised release, the clear mandate of the conditional release law, and this court’s rulings in Humes and Garcia. We conclude that modification of Calmes’ sentence to include the conditional release term did not violate his due process rights.

II.

We next address Calmes’ claim that the United States and Minnesota constitutional guarantees against double jeopardy were violated when the district court amended his sentence to include the conditional release term. The double jeopardy clauses of both constitutions protect criminal defendants from “three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” Humes, 581 N.W.2d at 320. Here, our only concern is with multiple punishments for the same offense, which Calmes claims results from the correction of a sentence to include a conditional release term.

We stated in Humes that “[t]he double jeopardy guarantees are generally not violated when a district court corrects an unauthorized sentence, even if the sentence is increased. This is because ‘a sentence does not have the qualities of constitutional finality that attend an acquittal.’ ” Id. (quoting DiFrancesco, 449 U.S. at 134), 101 S.Ct. 426 (footnote omitted). Moreover, Calmes’ revised sentence does not impose multiple punishments, but simply the single punishment that was mandatory at the time of sentencing. Therefore, the correction of his sentence does not violate double jeopardy.

III.

Finally, we consider whether due process or the Minnesota Rules of Criminal Procedure afforded Calmes the right to a hearing before his sentence was corrected to include the conditional release term. Calmes cites State ex rel. Shetsky v. Utecht, 228 Minn. 44, 54, 36 N.W.2d 126, 131 (1949), in support of his claim that the imposition of a sentence, even in the defendant’s voluntary absence, is unlawful and violates due process.

In Utecht, the court stated its agreement with the view, expressed in the American Law Institute (ALI) Code, that “the imposition of a sentence of death or imprisonment in the absence of the defendant is illegal.” Utecht, 228 Minn. at 51, 36 N.W.2d at 130 (emphasis added). Thus, Utecht does not stand for the proposition that the imposition of any sentence requires the defendant’s presence, only sentences to imprisonment or death.

Here, Calmes’ sentence was corrected by the addition of a statutorily mandated conditional release term, but no sentence of actual imprisonment was imposed. The provision of the ALI Code relied on by the court in Utecht provided that “[t]he defendant need not be present when a sentence of a fíne only, or a fine and imprisonment until the fine is paid, is pronounced.” Id. at 51 n. 5, 36 N.W.2d at 130 n. 4 (citation omitted). Thus, under the ALI Code, a defendant need not always be present when a judge imposes a sentence.

Calmes also relies on Minn. R.Crim. P. 27.03, subd. 2, which provides that a “[d]efendant must be personally present at the sentencing hearing and at the time sentence is pronounced.” However, the organization of Rule 27.03 demonstrates that subdivision 2 of that rule deals only with the original sentencing hearing, and not modifications to a sentence. The subdivisions of Rule 27.03 correspond to the chronological order in which a sentence is imposed and implemented. See, e.g., Minn. R.Crim. P. 27.03, subds. 1 (“Hearings”), 4 (“Imposition of Sentence”), 7 (“Judgment”), 9 (“Correction or Reduction of Sentence”). Subdivision 9 specifically provides that “[t]he court at any time may correct a sentence not authorized by law.” Minn. R.Crim. P. 27.03, subd. 9 (emphasis added). Therefore, the rule does not by its terms prohibit the court from correcting a sentence in the absence of the defendant.

However, the mere possibility of imprisonment inherent in the imposition of conditional release is admittedly more significant than a fine, imposition of which, we suggested in Utecht, did not require the defendant’s presence. 228 Minn. at 51, n. 5, 36 N.W.2d at 130 n. 4. Ultimately, we leave the determination of whether a defendant should have a hearing on the imposition of conditional release to correct a sentence to the discretion of the sentencing court. When there are questions about, for example, the validity of a plea agreement in light of the correction, or the length of the conditional release term, a hearing may be appropriate. See, e.g., Jumping Eagle, 620 N.W.2d at 44. In this case, Calmes does not allege any facts that suggest he is not required to serve a term of conditional release. His offense of conviction clearly required imposition of a conditional release term. Minn.Stat. § 609.346, subd. 5(a) (1996); Minn.Stat. § 609.109, subd. 7. He makes no claim, as in Jumping Eagle, that a plea was induced by the promise of a sentence of a specific number of months that did not include conditional release, for which a hearing may be appropriate. See Jumping Eagle, 620 N.W.2d at 44.

In sum, we hold that the decision whether to grant a hearing on the imposition of a mandatory and nonwaivable conditional release term to correct an illegal sentence rests within the discretion of the sentencing court. Because Calmes fails to allege any facts to suggest he is not subject to imposition of a conditional release term, a hearing at which he was entitled to be present was not required in order for the court to correct his sentence.

For the foregoing reasons, we conclude that the correction of Calmes’ sentence without a hearing did not violate due process, double jeopardy, or our rules of criminal procedure.

Affirmed.

PAUL H. ANDERSON, J.

(dissenting).

I respectfully dissent. This case arises from the Roseau County District Court’s sua sponte reimposition of a conditional release term on appellant Thomas Calmes’ criminal sentence. The imposition of the conditional release term was upheld by the Minnesota Court of Appeals. The majority concludes that Calmes did not develop a crystallized expectation of finality in his earlier sentence and thus due process was not violated by the imposition of the statutorily mandated conditional release term. I agree with the majority that there is a due process limit to a court’s ability to modify a sentence, but conclude that Calmes did develop a reasonable crystallized expectation of finality in his sentence.

In reaching its conclusion that Calmes’ due process rights were not violated, the majority relies on the factors outlined in DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993), and the fact that Calmes’ claim is not distinguishable from the due process challenges we addressed in State v. Humes, 581 N.W.2d 317 (Minn.1998), and State v. Garcia, 582 N.W.2d 879 (Minn.1998). However, in reaching this conclusion, the majority disregards the fact that the state originally informed the court that Calmes was correct that the conditional release term should not be applied to his sentence.

Calmes was originally sentenced on March 17, 1997, and his sentence did not include the statutorily mandated conditional release period. On April 10, 1997, the sentencing judge corrected this error and added a 5-year conditional release term to Calmes’ sentence. Calmes immediately opposed this addition and filed a motion to have the conditional release provision removed, asserting that “the sentence originally imposed on Mr. Calmes was properly authorized by law and the court did not have the power to increase the sentence by adding a five-year conditional release term.”

Contrary to the majority’s characterization, the state did more than just “not oppose” Calmes’ motion. The Roseau County Attorney responded to Calmes’ motion with a letter to the court stating that Calmes’ “motion is correct.” The court then rescinded the conditional release term on July 30, 1997. We decided Garcia and Humes on July 9, 1998. Calmes was released from prison on November 22, 1999, and on May 5, 2000, the court sua sponte reimposed the conditional release term on Calmes. However, in its memorandum accompanying its order reimposing the 5-year conditional release term, the court acknowledged that when the sentence was vacated on July 30, 1997, “[t]he defendant, his attorney, the State Public Defender’s Office, the Department of Corrections and the County Attorney agreed that the sentence could not be changed ⅜ *

The majority deems the state’s role in Calmes’ sentencing irrelevant by asserting that “citizens are presumed to know the law” and that due to our subsequent decisions in Humes and Garcia, “Calmes could not have developed a reasonable crystallized expectation of finality in a sentence that did not include a mandatory and non-waivable condition.” This conclusion by the majority eviscerates any due process challenge based on a crystallized expectation of finality because under the majority’s reasoning, a defendant’s expectation is not “reasonable” even though the state and the court both asserted in writing that the conditional release period would not be applicable. Instead, the majority presumes a defendant will continually monitor recent court opinions just in case an appellate court has modified the rules involving the application of sentence terms, thus negating the “finality” of a sentence. And, although the majority presumes this diligence of a defendant, it does not require it of the state, despite the fact that the state should also be presumed to know the law and, under the analysis adopted by the majority and the court in DeWitt, the state has some duty to diligently correct a sentencing error.

Accordingly, I conclude that Calmes developed a crystallized expectation of finality in his sentence based on (1) the state’s original position that the conditional release term should not be applied to him, (2) the court’s order vacating the conditional release term, and (3) the state’s failure to diligently correct the sentencing order following our opinions in Garcia and Humes. I would therefore hold that the conditional release term should be rescinded from Calmes’ sentence.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

GILBERT, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . Section 609.346, subdivision 5(a), provided, in relevant part:
      [Wjhen a court sentences a person to prison for a violation of section * * * 609.343 * * * the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of section * * * 609.343 * * * the person shall be placed on conditional release for five years, minus the time the person served on supervised release.
      In 1998, this section was repealed and reenacted as Minn.Stat. § 609.109, subd. 7 (2000). Act of April 6, ch. 367, art. 6, § 6, 1998 Minn. Laws 731, 795.

      . A term of imprisonment is presumptively equal to two-thirds of the executed sentence, with the remaining time to be served as supervised release. Minn.Stat. §§ 244.04, subd. 1, 244.05, subd. lb(a) (2000). Violating a condition of supervised release may result in reincarceration. Minn.Stat. § 244.05, subd. 3 (2000). Conditional release "is a term of probation * * * imposed upon [a] sex offender after he or she has completed his or her sentence." Humes, 581 N.W.2d at 319 n. 2. As with supervised release, a sex offender who violates any condition of release may be reincarcerated for the remainder of the conditional release term. Minn.Stat. § 609.109, subd. 7(b) (2000).

      . DeWitt was subsequently acquitted of charges related to the assault on the landlord. 6 F.3d at 34.

      . We do not suggest that a presumed or actual knowledge of the law will always defeat an expectation of finality in an illegal sentence. Rather, the facts in this case illustrate a particularly clear signal to Calmes that under Minnesota law his offense required imposition of a term of conditional release. He was actually aware of the statute, and presumptively aware of the holdings in Humes and Garcia that conditional release was mandatory and nonwaivable. Moreover, the state’s initial failure to object to removal of the conditional release term predated Humes and Garcia. While in another case presumed knowledge of the illegality of a sentence may not be as significant a factor, the particular clarity of the application of conditional release to Calmes’ conviction, combined with the procedural history including our decisions in Humes and Garcia, combine to defeat an expectation of finality in this case.

      . The federal constitution provides: ''[N]or shall any person be subject for the same of-fence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Minnesota Constitution provides: ”[N]o person shall be put twice in jeopardy of punishment for the same offense * * Minn. Const, art. I, § 7.

      . Our concern that a defendant have an opportunity to be heard regarding the imposition of conditional release is allayed by the defendant's right to a hearing when release is revoked and the offender is reincarcerated. See Minn. R. 2940.3500, 2940.4200, and 2940.4300. In addition, as we acknowledged recently in State v. Schwartz, an offender may obtain judicial review of the commissioner's decision to revoke conditional release through postconviction procedures. 628 N.W.2d 134, 141 n. 3 (Minn.2001); Minn.Stat. § 590.01 (2000). A postconviction hearing is required unless the petition and files and records conclusively show that the petitioner is entitled to no relief. Minn.Stat. § 590.04 (2000).