This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0121
State of Minnesota, Respondent,
vs.
Justin Thomas Keodouangdy, Appellant.
Filed December 27, 2016 Affirmed Rodenberg, Judge
Carver County District Court File No. 10-CR-15-37
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark Metz, Carver County Attorney, Dave Hunt, Assistant County Attorney, Alexander Vian, Special Assistant County Attorney, Chaska, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his conviction of aiding and abetting burglary in the second degree,
appellant Justin Thomas Keodouangdy challenges the validity of the search warrants authorizing the search of a cell phone, residence, and SUV. Appellant also argues that he
is entitled to a new trial because the district court plainly erred by failing to instruct the
jury concerning the term “intentionally aiding” and in failing to give an accomplice-
liability instruction. We affirm.
FACTS
In January 2015, the home of P.M., W.M., and B.K. was burglarized. The morning
of the burglary, appellant contacted P.M. and offered her a ride to the mall. He came to
the house to get P.M. Before they left, he went downstairs and remained there for several
minutes.
Appellant drove to the mall in a black SUV. P.M. saw appellant with his phone at
the mall and saw him receive a text message. After appellant returned P.M. to her home,
P.M. noticed that items were missing from the home. She believed someone had entered
without permission. Footprints were located in the snow outside the house and led to the
basement door, which was normally kept locked. P.M. exchanged text messages with
appellant asking whether he had seen the missing items and accusing him of letting
someone into the house through the basement door. P.M. later received text messages from
an unknown number asking for money in return for the items that had been stolen from the
home.
Police investigated the burglary and later broadcast a “stop and hold” for appellant.
An officer located and stopped an SUV that matched the description of the SUV that
appellant had been driving on the day of the burglary. The officer spoke to the driver and,
in doing so, noticed an envelope with appellant’s name on it within the SUV. The driver
2 informed the officer that appellant was at the residence he had just left, and that appellant
had been living there. Police went to the home, took another resident of the home to the
police station, and this person then gave police appellant’s cellular phone.
A search warrant was obtained authorizing police to search that residence and the
SUV. Items taken during the burglary were found in both the residence and the SUV. A
search warrant was also issued for “all electronic data contained on” appellant’s phone.
The search of the contents of the cell phone revealed a series of text messages sent and
received by appellant before, during, and after the burglary, implicating appellant in the
crime, including texts from appellant to an accomplice describing where to find valuables
in the house. Appellant challenged the issuance of the search warrants without making
specific arguments to the district court. The district court found that the affidavits in
support of the warrants contained sufficient facts and circumstances to establish probable
cause for the issuance of the search warrants. Appellant made no further or more specific
challenge to the warrants.
A jury returned a guilty verdict on the charge of aiding and abetting burglary in the
second degree. This appeal followed.
DECISION
I. Warrant authorizing the search of the cell phone
Appellant argues that the search warrant authorizing the search of his cell phone
violated the particularity clause of the Fourth Amendment to the U.S. Constitution and
article I, section 10 of the Minnesota Constitution. He also challenges the district court’s
probable cause determination concerning that search warrant.
3 A. Appellant failed to preserve a particularity challenge.
Generally, appellate courts will only consider issues that were presented and
considered below. In re Stadsvold, 754 N.W.2d 323, 327 (Minn. 2008); Thiele v. Stich,
425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on
matters outside the record on appeal, and may not consider matters not produced and
received in evidence below.”).
The record before us does not indicate that appellant argued to the district court that
the warrant authorizing the search of his cell phone violated the particularity clause. The
district court did not make findings concerning the particularity of the search warrant. At
the omnibus hearing, appellant’s only argument concerning the search of the cell phone
was “whether the search warrant was proper to obtain the cell phone and to search the cell
phone.” Appellant made no further argument, and the district court’s only conclusion in
response to appellant’s challenge was a finding of probable cause. Appellant made no later
or further request that the district court consider whether the warrant was sufficiently
particular. Because the district court was not asked to make a particularity finding, the
record is inadequate to determine whether the description of the scope of the cell-phone
search contained in the warrant was insufficiently precise or particular. For example, there
is no evidence of how and where on the cell phone’s drive or memory the text messages
are or would generally be stored. Likewise, and although the warrant’s description of the
property and things to be searched was quite general, the record contains neither evidence
nor argument concerning how it might or should have been made more specific. This
hinders our review of whether the warrant was unconstitutionally broad. See Eisenschenk
4 v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (“A party cannot complain about
a district court’s failure to rule in [the party’s] favor when one of the reasons it did not do
so is because that party failed to provide the district court with the evidence that would
allow the district court to fully address the question.”), review denied (Minn. Nov. 25,
2003). Although the state did not argue that the particularity challenge was forfeited, there
is no basis in the record before us on which we can evaluate the issue. We therefore
conclude that appellant failed to preserve the particularity challenge and the issue is
forfeited.
We nevertheless address on the merits the constitutionality of the cell-phone search
warrant for both probable cause and particularity. Our merits consideration of the latter
issue is constrained by the record as it exists.
B. Probable cause supports the cell-phone search.
Appellant argues that the search warrant authorizing the search of the contents of
his cell phone is not supported by probable cause. He argues that his “mere possession of
a cell phone” as a suspect is “insufficient to establish probable cause to search the
contents.” The state argues that the police would “be interested in knowing” certain
information within appellant’s phone. Police officers are undoubtedly curious about all
sorts of things, including data contained within a suspect’s cell phone. But curiosity is not
a proper basis for the issuance of a search warrant. Rather, the search warrant application
and supporting affidavit must demonstrate that “a fair probability” exists that evidence or
fruits of crime will be found in the place to be searched. State v. Holland, 865 N.W.2d
666, 673 (Minn. 2015) (quotations omitted).
5 A search warrant is supported by probable cause “if, on the totality of the
circumstances, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” Holland, 865 N.W.2d at 673 (quotations omitted). We give
great deference to the district court’s determination of probable cause for a search warrant.
State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) “When reviewing a judge’s decision
to issue a search warrant, our only consideration is whether the issuing judge had a
substantial basis for concluding that probable cause existed.” State v. Fawcett, 884 N.W.2d
380, 384 (Minn. 2016) (quotation omitted). Our review is limited to the information within
the warrant application and supporting affidavit. Holland, 865 N.W.2d at 673. The warrant
application and supporting affidavit must include “specific facts to establish a direct
connection between the alleged criminal activity and the site to be searched.” State v.
Souto, 578 N.W.2d 744, 749 (Minn. 1998). In our review, “[w]e must consider the totality
of the circumstances alleged in the supporting affidavit and must be careful not to review
each component of the affidavit in isolation.” Fawcett, 884 N.W.2d at 385 (quotation
omitted).
We conclude that the affidavit supporting the warrant application contained
sufficient information to establish a connection between the suspected burglary and the
data contained within appellant’s cell phone. The affidavit describes appellant’s
interactions with P.M. on the day of the burglary, including appellant’s invitation to
transport P.M. from the house to the mall, P.M.’s observation that appellant had been in
the basement of the house where the door by which the burglar(s) obtained entry is located,
and P.M.’s observation that appellant had used his cell phone during the approximate time
6 of the burglary. The affidavit also notes that a search warrant had already been executed
at appellant’s residence, and property stolen from P.M.’s home was recovered. From the
information within the affidavit, there was a fair probability that evidence of appellant’s
involvement in the burglary would be revealed by his text messages. We defer to the
issuing judge’s determination that there was probable cause to think that appellant’s cell
phone would reveal evidence of a crime. The warrant to search the contents of appellant’s
cell phone was supported by probable cause.
C. The record is insufficient to demonstrate a particularity-clause violation.
The Fourth Amendment to the U.S. Constitution and article I, section 10 of the
Minnesota Constitution provide that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. The
particularity clause prevents “general or exploratory” searches, State v. Bradford, 618
N.W.2d 782, 795 (Minn. 2000), and “prevents the seizure of one thing under a warrant
describing another,” Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76 (1927).
A warrant written with particularity has the effect that, “[a]s to what is to be taken, nothing
is left to the discretion of the officer executing the warrant.” Id. “[A] search conducted
pursuant to a warrant that fails to conform to the particularity requirement . . . is
unconstitutional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424,
3427 n.5 (1984). “[W]hen determining whether a clause in a search warrant is sufficiently
particular, the circumstances of the case must be considered, as well as the nature of the
7 crime under investigation and whether a more precise description is possible under the
circumstances.” State v. Miller, 666 N.W.2d 703, 713 (Minn. 2003).
We recently examined a particularity clause challenge in an unpublished opinion in
State v. Bachman, No. A14-0996, 2015 WL 46547 (Minn. App. Jan. 5 2015).1 In Bachman,
a search warrant was issued for the search of “any and all data on [the] hard drive” of a
computer owned by Bachman, for the purpose of finding photos of a house destroyed by a
fire and communications made by a victim of the fire who had used the computer. Id. at
*1. In the ensuing search, child pornography was found. Id. The district court suppressed
the child-pornography evidence. Id. We affirmed on the ground that the search warrant
for “any and all data on [the] hard drive” did not adequately limit the scope of the warrant
to the probable-cause showing contained in the supporting affidavit. Id. at *1, *3.
This case is unlike Bachman. The warrant in this case was issued to search
appellant’s cell phone for text messages and other communications surrounding the time
of the burglary. Those communications were the focus of the forensic examiner’s search
of the cell phone. And those electronic communications were precisely what the
examiner’s search ultimately found. Although the search warrant’s description of the
particular “place to be searched” and “things to be seized” was broad, the record before us
1 “Although not precedential, unpublished opinions may be persuasive.” Sarber v. Comm’r of Pub. Safety, 819 N.W.2d 465, 469 n.3 (Minn. App. 2012). Because this is an emerging issue in the area of search-and-seizure law, and because Bachman is a recent opinion of this court, we consider its persuasive value here.
8 does not disclose how the portions of the cell phone authorized to be searched could have
been more precisely described.2
The officers in this case acted under what United States Supreme Court precedent
requires for the search of a cell phone; they applied for and received a warrant authorizing
a search of the cell phone. Riley v. California, 134 S. Ct. 2473, 2495 (2014) (“Our answer
to the question of what police must do before searching a cell phone seized incident to an
arrest is accordingly simple—get a warrant.”); see also State v. Barajas, 817 N.W.2d 204,
217 (Minn. App. 2012) (holding that a search warrant is required for a search of a cell
phone), review denied (Minn. Oct. 16, 2012). The legality of a search of all data contained
within a cell phone, without limitation, is an emerging area of the law where clarification
is needed,3 but the record here does not permit meaningful review of the issue because
appellant presented neither evidence nor argument to the district court concerning how the
warrant could have been made more particular. See Miller, 666 N.W.2d at 713 (noting that
part of the test for particularity is whether a more precise description is possible). Appellant
has not demonstrated either that he has been aggrieved by the claimed lack of particularity
of the search warrant, or that he is entitled to appellate relief.
2 We suppose that the warrant might have been tailored more narrowly so as to only authorize search of those portions of the phone’s memory that contain text messages. But here again, the record is silent concerning where on a cell phone’s memory or disc such things might ordinarlily be found. The record is also silent concerning how the retention of text-message data is or might be separated from other stored data. 3 The state argues that, if the warrant violated the particularity clause, a good-faith exception would apply. We do not reach the state’s alternative argument.
9 II. Warrant for the search of the SUV and the residence
Appellant challenges the probable-cause determination supporting the search
warrant issued for the searches of the SUV and the residence where he was living.4
A search warrant is supported by probable cause if the totality of the circumstances
demonstrate that there is “a fair probability that contraband or evidence of a crime will be
found in a particular place.” Holland, 865 N.W.2d at 673 (quotation omitted). The facts
alleged in the warrant application and affidavit must include “specific facts to establish a
direct connection between the alleged criminal activity and the site to be searched.” Souto,
578 N.W.2d at 749. We defer to the issuing judge’s determination of probable cause for
the search warrant and only consider whether the issuing judge had a substantial basis for
concluding that probable cause existed. Fawcett, 884 N.W.2d at 384; Rochefort, 631
N.W.2d at 804.
The facts alleged in the affidavit supporting the request for the warrant to search the
SUV and residence indicate that appellant had used the SUV sought to be searched to
transport P.M. from her home to the mall, and then back to the burglarized residence. The
affidavit alleges that P.M. believed appellant had unlocked the basement door or let
someone into the home when he went to the basement, and footprints in the snow near the
door corroborated this belief. Appellant was later seen returning to the residence carrying
a duffle bag. Under the totality of the circumstances, there was a fair probability that
4 The state asserts that appellant did not have a legitimate expectation of privacy in the SUV and therefore has no right to challenge the search. Because we conclude that probable cause supports the issuance of the search warrant for the SUV, we do not address the state’s legitimate-expectation-of-privacy argument.
10 contraband or evidence of the burglary would be found in the residence and SUV. A direct
connection existed between the facts alleged in the affidavit and the two areas to be
searched listed in the warrant. The issuing judge had a substantial basis to make the
probable-cause decision concerning the search of the SUV and residence, and we do not
disturb that determination. See Rochefort, 631 N.W.2d at 804 (directing that this court
gives great deference to the issuing judge’s finding of probable cause). The warrant
authorizing the searches of the residence and the SUV was supported by probable cause.
III. Aiding and Abetting Instruction
Appellant next argues he is entitled to a new trial because the district court plainly
erred by failing to instruct the jury on “intentionally aiding.”
Appellant did not object to the absence of such an instruction at trial. We therefore
review for plain error. State v. Washington-Davis, 881 N.W.2d 531, 541 (Minn. 2016).
Under the plain-error doctrine, we determine whether the jury instructions: (1) contained
an error, (2) that was plain, and (3) that affected the defendant’s substantial rights. Id. If
all three prongs of the plain-error analysis are satisfied, “we may correct the error only if
it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quotation omitted).
A person is “liable for a crime committed by another if the person intentionally aids,
advises, hires, counsels, or conspires with or otherwise procures the other to commit the
crime.” Minn. Stat. § 609.05, subd. 1 (2014). To conclude that a person intentionally aided
another in the commission of a crime, the state must prove “(1) that the defendant knew
that his alleged accomplices were going to commit a crime, and (2) that the defendant
11 intended his presence or actions to further the commission of that crime.” State v. Milton,
821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted). Accomplice-liability instructions
must explain that the intentionally-aiding element requires the jury to find beyond a
reasonable doubt that the defendant had foreknowledge that his accomplice was going to
commit a crime, and the defendant intended his actions or presence to aid in the
commission of the crime. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).
The state concedes that the district court plainly erred in not instructing the jury
concerning “intentionally aiding.” It remains for us to determine whether that plain error
affected appellant’s substantial rights. One claiming that an erroneous instruction affected
substantial rights has the “heavy burden of proving that there is a reasonable likelihood that
giving the instruction in question had a significant effect on the jury verdict.” Id. at 284
(quotation omitted). “An erroneous jury instruction will not ordinarily have a significant
effect on the jury’s verdict if there is considerable evidence of the defendant’s guilt.” Id.
at 283-84.
Appellant has not met the heavy burden of demonstrating that the omission of the
jury instruction had a significant effect on the verdict in this case. “Intentionally” is a
commonly understood word, and the district court ensured that the jury would consider
whether appellant’s aid was intentional by including the term in the jury instruction
concerning liability for the crimes of another, in the jury instruction for aiding and abetting
burglary, and on the jury verdict form itself. The record contains ample evidence that
appellant knew that his accomplice was going to commit the burglary, and that appellant
intended his actions of removing P.M. from the home to aid in the commission of that
12 crime. Appellant initiated the contact with P.M. that would remove her from the home,
sent text messages describing where the accomplice should look for valuables within the
home and when the accomplice should leave the house, and the stolen items were
eventually recovered from where appellant was living. After our careful review of the
record, we are convinced that an additional instruction on “intentionally aiding” would not
have had a significant effect on the verdict. The district court’s error concerning the jury
instruction did not affect appellant’s substantial rights.
IV. Accomplice-Liability Instruction
Finally, appellant argues that the district court committed plain error by failing to
instruct the jury concerning accomplice-liability testimony.
District courts must instruct juries on accomplice testimony when “it is reasonable
to consider any witness against the defendant to be an accomplice.” State v. Strommen,
648 N.W.2d 681, 689 (Minn. 2002). The duty to give the jury instruction “arises from the
very real possibility that a jury might discredit all testimony except the accomplice
testimony, and thus find the defendant guilty on the accomplice testimony alone.” State v.
Cox, 820 N.W.2d 540, 548 (Minn. 2012) (quotations omitted).
Appellant did not request an accomplice-testimony instruction at trial. We therefore
review the omission of the jury instruction for plain error. Washington-Davis, 881 N.W.2d
at 541. An accomplice is a witness who “could have been indicted and convicted for the
crime with which the defendant is charged.” State v. Pendleton, 759 N.W.2d 900, 907
(Minn. 2009) (quotation omitted). No accomplice testified as a witness against appellant
during the trial. The only witnesses who testified at trial were victims of the burglary and
13 law enforcement personnel. Because an accomplice did not testify as a witness, appellant
has not demonstrated error in the omission of an accomplice-liability instruction, much less
plain error.
To the extent appellant argues that the text messages admitted into evidence
required an accomplice-testimony instruction, this argument is contrary to the purpose of
such an instruction. Accomplice testimony is inherently untrustworthy because of the risk
that the accomplice may testify in the hope of currying favor with law enforcement or to
satisfy self-serving or malignant motives, and therefore a jury instruction is required. State
v. Clark, 755 N.W.2d 241, 253 (Minn. 2008). Without an accomplice providing actual trial
testimony, there is no reason to give an accomplice-liability instruction. Appellant was not
entitled to an accomplice-testimony instruction.
Affirmed.