This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2125
State of Minnesota, Respondent,
vs.
Andre Thomas Johnson, Appellant.
Filed December 14, 2015 Affirmed in part, reversed in part, and remanded Larkin, Judge
Ramsey County District Court File No. 62-CR-12-9488
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge. UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges his convictions of second-degree murder and second-degree
assault, arguing that his trial counsel’s failure to challenge a warrant that authorized the
search of his property constitutes ineffective assistance of counsel. Appellant also
challenges his sentence, arguing that the district court erred by failing to sentence the
offenses in the order in which they occurred and that the state failed to introduce
evidence at trial necessary to trigger a mandatory-minimum sentence under Minn. Stat.
§ 609.11, subd. 5(a) (2010). Because appellant’s trial counsel was not ineffective, we
affirm appellant’s convictions. But because the district court did not sentence the
offenses in the order in which they occurred, we reverse appellant’s sentence and remand
for resentencing on all convictions, without addressing his argument regarding section
609.11.
FACTS
On the night of July 6, 2012, R.B., a heroin dealer, and his acquaintance D.V.
were leaving R.B.’s Saint Paul home when a man with a rifle approached them and
ordered them back inside the house. Once inside, the man pointed the gun at T.C., who
was inside the house. T.C. ran out the front door. The man demanded drugs and money
from R.B. R.B. gave the man some money from his pocket and some heroin. When R.B.
failed to produce more money and drugs, the man shot R.B. twice, shot D.V. once in his
leg, and left the home. R.B. died from his wounds.
2 During the investigation of R.B.’s murder, Saint Paul police identified appellant
Andre Thomas Johnson as a suspect. Saint Paul Police Sergeant Sheila Lambie applied
for a warrant to search Johnson’s residence in Ironton, Minnesota. Sergeant Lambie
drafted the search-warrant application, the supporting affidavit, and the proposed search
warrant. The supporting affidavit provided the following facts in support of probable
cause. Officers learned that R.B. had been selling narcotics and that one of his associates
was T.H., who lived next door. An officer interviewed T.H., and T.H. provided his home
and cell phone numbers. Officers obtained T.H.’s home phone records and learned that
just prior to and shortly after the murder, there were calls between T.H.’s home phone
and a number listed to a person named J.J. Sergeant Lambie learned that Johnson is
T.H.’s nephew or cousin, and that J.J. is Johnson’s mother. Johnson was convicted of
aggravated assault in 1997 and had just been released from prison. Johnson’s cell phone
records revealed that Johnson was in Saint Paul continuously from July 6 until July 7.
Johnson’s parole officer told officers that Johnson was allowed to travel to the Twin
Cities, but he was not allowed to spend the night.
When Sergeant Lambie interviewed T.H., he denied that he knew Johnson and that
he had a relative by that name. But T.H.’s wife told Sergeant Lambie that Johnson is the
son of T.H.’s cousin, J.J., and that Johnson and J.J. were at her house with T.H. on the
day of the murder. T.H.’s wife told the police that T.H. was in the front yard with the
cordless house phone right after the murder occurred. A confidential reliable informant
(CRI) told the police that T.H. stated, “[I]t wasn’t supposed to go down that way, I got all
these mother f-ckers mixed up on that, nobody was supposed to get hurt, supposed to be
3 in and out.” The CRI told the police that T.H. said the murder was supposed to be a
robbery.
The surviving victim, D.V., and another witness to the murder described the
suspect as a black male who was wearing a wig, which was “stringy and fake looking.”
The suspect wore a skull cap over the wig, and the hair hung out of the bottom and sides
of the skull cap. The suspect also wore a black jacket or hoodie with red stripes down the
arms.
The search-warrant application requested to search Johnson’s address, including
“any garage or shed in relation to this address,” for firearms, ammunition, a wig or fake
hair, a skull cap, and a black jacket or hoodie with red strips on the arms. However,
when drafting the search warrant, Sergeant Lambie mistakenly inserted the list of items to
be seized in the spot designated for identification of the place to be searched. As a result,
the search warrant did not describe the place to be searched. Sergeant Lambie presented
the search-warrant application, the supporting affidavit, and the search warrant, which
were paper-clipped together, to a district court judge, who read and signed the supporting
affidavit and the search warrant, noting the date and time of his signature on both
documents.
After obtaining the search warrant, Sergeant Lambie briefed the tactical team that
would eventually execute the warrant. She provided the team with the warrant and the
supporting affidavit, she showed the team photographs of the property’s layout, and she
discussed with the team the buildings on the property. The tactical team found a wig and
shell casings during the ensuing search of Johnson’s property. A ballistics analyst
4 concluded that a casing found on Johnson’s property was fired from the same gun as
casings found at the crime scene.
Respondent State of Minnesota charged Johnson with two counts of second-degree
murder for R.B.’s death, one count of second-degree assault against D.V., and one count
of second-degree assault against T.C. The case was tried to a jury, and the jury found
Johnson guilty of all charges. The district court sentenced Johnson to serve 450 months
in prison for one count of second-degree murder. Next, the district court sentenced
Johnson to serve 60 months in prison for the assault against D.V., consecutively to the
450-month murder sentence. Lastly, the district court sentenced Johnson to serve 60
months for the assault against T.C., concurrently with the other assault sentence.
Johnson appealed, and this court granted his request to stay the appeal and remand
for postconviction proceedings. Johnson petitioned for postconviction relief, arguing that
his trial counsel was ineffective because he failed to challenge the search warrant for lack
of probable cause and lack of specificity regarding the place to be searched. The
postconviction court held a hearing on the petition and heard testimony from Johnson’s
trial counsel and from Sergeant Lambie. The postconviction court denied Johnson’s
petition, concluding that the search warrant was based on sufficient probable cause, its
failure to describe the place to be searched was cured by the attached supporting
affidavit, and that Johnson’s trial counsel was not ineffective. This court dissolved the
stay and reinstated Johnson’s appeal.
5 DECISION
I.
“[Appellate courts] review the denial of postconviction relief based on a claim of
ineffective assistance of counsel de novo because such a claim involves a mixed question
of law and fact.” Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013). To succeed on a
claim of ineffective assistance of counsel, a defendant must show that his counsel’s
representation fell below an objective standard of reasonableness and that, but for the
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068
(1984).
Johnson contends that his trial counsel’s failure to challenge the search warrant
fell below an objective standard of reasonableness because the search warrant was not
supported by probable cause. The United States and Minnesota Constitutions provide
that no warrant shall issue without a showing of probable cause. U.S. Const. amend. IV;
Minn. Const. art. I, § 10. Generally, a search is lawful only if it is executed pursuant to a
valid search warrant issued by a neutral and detached magistrate after a finding of
probable cause. Minn. Stat. § 626.08 (2012); State v. Harris, 589 N.W.2d 782, 787
(Minn. 1999).
“When determining whether a search warrant is supported by probable cause, we
do not engage in a de novo review.” State v. McGrath, 706 N.W.2d 532, 539 (Minn.
App. 2005), review denied (Minn. Feb. 22, 2006). Instead, “great deference must be
given to the issuing [magistrate’s] determination of probable cause.” State v. Valento,
6 405 N.W.2d 914, 918 (Minn. App. 1987). When reviewing a decision to issue a search
warrant, we limit our review to whether the issuing magistrate had a substantial basis for
concluding that probable cause existed. State v. Yarbrough, 841 N.W.2d 619, 622 (Minn.
2014). To determine whether the issuing magistrate had a substantial basis for finding
probable cause, we look to the totality of the circumstances. State v. Wiley, 366 N.W.2d
265, 268 (Minn. 1985).
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including 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 Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
When reviewing the sufficiency of a search-warrant affidavit under the totality-of-
the-circumstances test, “courts must be careful not to review each component of the
affidavit in isolation.” Id. “[A] collection of pieces of information that would not be
substantial alone can combine to create sufficient probable cause.” State v. Jones, 678
N.W.2d 1, 11 (Minn. 2004). “Furthermore, the resolution of doubtful or marginal cases
should be largely determined by the preference to be accorded warrants.” Wiley, 366
N.W.2d at 268 (quotation omitted).
Johnson argues that the supporting affidavit “offered no explanation as to how
[his] visit to the metro and his telephone conversations with his mother linked him to the
shooting.” We disagree. The affidavit alleged that Johnson was in Saint Paul the night of
the murder and remained there until the next day; that both Johnson and his mother, J.J.,
7 were with T.H. at T.H.’s house next door to the victim’s house prior to the murder; that
there were phone calls between T.H.’s home phone and J.J.’s phone prior to and after the
murder; that T.H. was aware of or involved with the planning of the robbery and stated
that “nobody was supposed to get hurt”; and that T.H. denied that he knew Johnson or
anyone with Johnson’s name, suggesting that he was trying to hide Johnson’s
involvement in the robbery and murder. Moreover, the affidavit alleged that Johnson had
recently been released from prison for a 1997 aggravated-assault conviction. When
viewed together, under the totality of the circumstances, the affidavit established a fair
probability that Johnson was involved in the robbery and R.B.’s murder.
Johnson also argues that the affidavit “failed to provide specific information to
establish why, even if [he] was the shooter, he would have brought incriminating
evidence of the crime from St. Paul to his home in Ironton.”
Probable cause not only requires that the evidence sought likely exists, but also that there is a fair probability that the evidence will be found at the specific site to be searched. A sufficient nexus must be established between the evidence sought and the place to be searched. However, direct observation of evidence of a crime at the place to be searched is not required. A nexus may be inferred from the totality of the circumstances.
Yarbrough, 841 N.W.2d at 622 (citations and quotation omitted). We consider “the type
of crime involved, the nature of the items sought, the extent of an opportunity for
concealment, and reasonable assumptions about where a suspect would likely keep that
evidence.” State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004). Depending on the circumstances, “it is reasonable to infer that
8 [gun] evidence would be kept at a defendant’s residence, thereby satisfying the nexus
requirement.” Yarbrough, 841 N.W.2d at 623. In this case, it was reasonable to infer
that Johnson—a murder suspect—would keep the murder weapon, ammunition, clothes,
and disguise (i.e., the wig) at his home, which was far from the crime scene. See State v.
Pierce, 358 N.W.2d 672, 674 (Minn. 1984) (stating that “the normal place one would
keep extra bullets for his gun and papers showing ownership of his gun would also be at
his residence”).
Johnson also argues that the search warrant was issued nearly five months after the
crime, suggesting that the information establishing probable cause was stale. But the
time limit for obtaining a warrant is flexible and determined by the circumstances of each
case. State v. Jannetta, 355 N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn.
Jan. 14, 1985). “Factors relating to staleness include whether there is any indication of
ongoing criminal activity, . . . whether the property sought is easily disposable or
transferable, and whether the items sought are of enduring utility.” State v. Souto, 578
N.W.2d 744, 750 (Minn. 1988). Information supporting probable cause may not be stale
“even after the passage of several months where the items sought are of enduring utility
to their taker.” State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990) (quotation omitted).
In this case, only five months passed between the murder and the search, and the objects
of the search—a firearm, clothing, and a wig—have an enduring utility.
In sum, the search-warrant affidavit supports the issuing judge’s practical,
common sense determination that there was a fair probability that contraband or evidence
of a crime would be found on Johnson’s property. The issuing judge therefore had a
9 substantial basis for concluding that the constitutional probable-cause standard was
satisfied.
Johnson next contends that his trial counsel’s failure to challenge the search
warrant fell below an objective standard of reasonableness because the warrant lacked
specificity regarding the place to be searched. The United States and Minnesota
Constitutions require that search warrants particularly describe the place to be searched.
U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The main purpose of the requirement
is to minimize the risk that officers executing search warrants will by mistake search a
place other than the place intended by the magistrate.” State v. Gonzales, 314 N.W.2d
825, 827 (Minn. 1982) (quotation omitted).
As support for his position, Johnson relies on caselaw regarding when an affidavit
may be used to cure a search warrant that lacks particularity under the incorporation
doctrine. That caselaw provides that “the affidavit and search warrant must be physically
connected so that they constitute one document” and that “the search warrant must
expressly refer to the affidavit and incorporate it by reference using suitable words of
reference.” State v. Herbst, 395 N.W.2d 399, 404 (Minn. App. 1986) (quotation
omitted); see also State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994) (stating that
“an affidavit may be used to cure a deficient warrant if the affidavit and warrant are
physically attached to one another and the warrant refers to the affidavit and incorporates
it by reference” (quotation omitted)); State v. Bonynge, 450 N.W.2d 331, 335 (Minn.
App. 1990) (stating that “an affidavit may be used to cure a deficient warrant if the
10 affidavit and warrant are physically attached to one another and the warrant refers to the
affidavit and incorporates it by reference”).
Johnson argues that the state failed to establish that the search warrant and
supporting affidavit in this case were physically connected when the warrant was
executed or that the warrant expressly refers to the affidavit and uses suitable words to
incorporate it by reference. But the caselaw on which Johnson relies uses the
incorporation doctrine to determine whether an affidavit cures a warrant that fails to
particularly describe the things to be seized, as opposed to the place to be searched. See
Herbst, 395 N.W.2d at 403 (stating that “[t]he search warrant issued for appellant’s home
did not contain a particular description of the things to be seized”); see also Balduc, 514
N.W.2d at 610 (addressing a search warrant that “contains no description of the things to
be seized”); Bonynge, 450 N.W.2d at 334, 336 (addressing whether the warrant was “of
insufficient particularity to authorize seizure of . . . videotapes”).
When determining whether a warrant is constitutionally invalid because it fails to
particularly describe the place to be searched, this court follows Gonzales, which
provides:
Not all errors in the search warrant’s description of the premises to be searched will invalidate a search pursuant to the warrant. The test for determining the sufficiency of the description of the premises is whether the description is sufficient so that the executing officer can locate and identify the premises with reasonable effort with no reasonable probability that other premises might be mistakenly searched.
Gonzales, 314 N.W.2d at 827 (quotation and alterations omitted).
11 In Gonzales, the police obtained a warrant to search the defendant’s house at 41
Wood Street. Id. When officers arrived to execute the warrant, they learned that the
defendant’s address actually was 41 Delos Street. Id. The supreme court concluded that
the warrant was not constitutionally defective because “there was no reasonable
probability [of] searching the wrong house,” reasoning that the officer who prepared the
warrant application knew which house was the defendant’s house, the house had the
number 41 on it, the house was on a corner bounded by Wood Street on one side, and
there were no other houses bearing the number 41 in the neighborhood. Id.
Similarly, in State v. Kessler, an officer applied for a warrant to search the
defendant’s home and prepared a supporting affidavit that described the premises to be
searched as 1521 216th Street North, but the defendant lived at 5821 216th Street North.
470 N.W.2d 536, 537 (Minn. App. 1991). This court concluded that the warrant was not
constitutionally defective, reasoning that the officer who applied for and executed the
warrant had previously seen the defendant’s house and had later flown over the house
with another officer in a State Patrol airplane and observed that the property layout
conformed to an informant’s diagram. Id. at 539. This court noted that there was
no indication of subterfuge or intent to deceive the court or [the defendant]. No home was mistakenly searched. [The defendant] suffers no prejudice from the wrong address on the warrant. The attachments to the complaint establish that the officers executing the warrant went directly to the house that [the officers] observed from the air and that the informant had shown [the affiant] on the ground. Regardless of the mistaken address in the warrant, they did in fact execute the
12 warrant on the house meant to be searched. Such a clerical error, resulting in no prejudice, is not reversible error.
Id.
As in Gonzales and Kessler, the tactical team that executed the warrant in this case
was provided a description sufficient to locate and identify the correct premises to be
searched and there was no reasonable probability that other premises might be mistakenly
searched. Sergeant Lambie prepared the search-warrant application and supporting
affidavit, briefed the tactical team that executed the warrant, provided the team with the
warrant and the supporting affidavit—which contained Johnson’s address—and showed
the team photographs of the places to be searched. Sergeant Lambie was present when
the tactical team prepared to execute the warrant, was blocks away as the team entered
Johnson’s property, and drove to the scene after the premises were secured for the search.
In sum, the tactical team was provided Johnson’s address and searched Johnson’s
property even though the search warrant did not contain Johnson’s address. The
omission of Johnson’s address from the face of the warrant created no reasonable
probability that another property might be mistakenly searched.
Johnson dismisses Gonzales and Kessler, arguing that “this is not a case in which
the search warrant contained a mistaken address,” but rather “a case in which the place to
be searched was not described whatsoever.” He further argues that “there is no indication
that the issuing judge intended to allow the police to search all the places Sergeant
Lambie had asked to search in the warrant application.” We are not persuaded. First,
whether an alleged defect results from an incorrectly stated address or an omitted address,
13 the alleged constitutional inadequacy is the same: failure to particularly describe the place
to be searched. The mistaken address cases are therefore relevant. Second, the issuing
magistrate signed and dated both the search warrant and the supporting affidavit,
indicating that he intended to allow the police to search all of the places in the warrant
application. Thus, the police did not engage in a constitutionally impermissible
exploratory search. They searched the locations indisputably authorized by the issuing
magistrate. We therefore hold that the clerical error in this case does not constitutionally
invalidate the search warrant or the search.
Because the search warrant was constitutionally valid, Johnson has failed to show
that his trial counsel’s decision not to challenge the warrant was objectively unreasonable
or that the result of the proceeding would have been different if he had challenged the
warrant. We therefore affirm the postconviction court’s denial of his petition for relief.
II.
Johnson contends that his “sentences must be reversed because the district court
sentenced him on his second-degree murder conviction before sentencing him on his
second-degree assault convictions even though the latter offenses were completed before
the murder.” Sentencing decisions are reviewed for an abuse of discretion. State v. Ford,
539 N.W.2d 214, 229 (Minn. 1995).
Johnson argues that because the victim’s death is an element of second-degree
murder and the evidence established that R.B. did not die until after Johnson pointed the
rifle at T.C. and shot D.V., he committed the assaults before the murder. Johnson
therefore argues that the district court was required to sentence him for the assaults before
14 the murder. Under the Minnesota Sentencing Guidelines, “[w]hen multiple current
offenses are sentenced on the same day before the same judge, sentencing shall occur in
the order in which the offenses occurred.” Minn. Sent. Guidelines cmt. 2.B.105 (Supp.
2011); see also State v. Anderson, 361 N.W.2d 896, 898 (Minn. App. 1985) (“When
multiple current offenses are sentenced on the same day, sentencing should occur in the
order in which the offenses occurred.”). A defendant is properly sentenced first for the
offense he completes first. See State v. Anderson, 345 N.W.2d 764, 766 (Minn. 1984)
(holding that when a burglary was completed before criminal damage to property,
burglary was properly sentenced first).
The district court should have sentenced Johnson in accordance with that
principle. The state concedes that “justice requires that the sentences be imposed
correctly” and that remand for resentencing is appropriate. We agree. We therefore
reverse Johnson’s sentence and remand for the district court to resentence the offenses in
the order in which they occurred.
III.
Johnson also contends that his “60-month consecutive sentence must be reversed
because the state failed to introduce any evidence at [his] trial that would allow the jury
to find beyond a reasonable doubt that [he] had a prior qualifying offense involving a
firearm to trigger the mandatory-minimum sentencing requirement in Minn. Stat.
§ 609.11, subd. 5(a).” The district court did not articulate the basis for the 60-month
sentence. Because we reverse Johnson’s sentence and remand for the district court to
15 resentence all of Johnson’s convictions on other grounds, we do not address Johnson’s
remaining challenge to his sentence.
Affirmed in part, reversed in part, and remanded.