                          This opinion will be unpublished and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
                                     A15-0751

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                 Larry Lawayne Hewitt,
                                      Respondent.

                                Filed September 8, 2015
                                Reversed and remanded
                                    Johnson, Judge

                              Nicollet County District Court
                                 File No. 52-CR-14-396

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michelle M. Zehnder Fischer, Nicollet County Attorney, James P. Dunn, Chief Deputy
County Attorney, St. Peter, Minnesota (for appellant)

Silas L. Danielson, Jeffrey A. Grace, Blethen, Gage & Krause, PLLP, Mankato,
Minnesota (for respondent)

         Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         Larry Lawayne Hewitt is charged with driving while impaired. He moved to

suppress evidence and dismiss the charge on the ground that deputy sheriffs did not have
the reasonable, articulable suspicion necessary to temporarily detain him to investigate an

anonymous tip that he had been driving while impaired. The district court granted

Hewitt’s motion but on a different ground that was not urged by Hewitt, namely, that

deputy sheriffs entered his property without a warrant. In this pretrial appeal, the state

argues that the district court erred because the state did not have notice of the issue on

which the district court decided the motion and, thus, did not have an opportunity to

present evidence and argument to the district court on that issue.            We agree and,

therefore, reverse and remand for further proceedings.

                                         FACTS

       On September 6, 2014, at approximately 1:05 p.m., an anonymous tipster reported

to the Nicollet County Sheriff’s Department that “Larry Hewitt may be driving drunk

over by Hewitt Roll-a-Dock.” Deputy Sheriff Daniel Kanuch went to the premises and

observed a pick-up truck parked inside a large metal building that was under

construction. Deputy Sheriff Michael O’Gorman arrived one minute later and observed

Deputy Kanuch speaking with Hewitt, who was sitting in the driver’s seat of the truck.

Both deputies observed indicia of intoxication and suspected Hewitt of committing the

offense of being in physical control of a vehicle while under the influence of alcohol.

Deputy Kanuch arrested Hewitt and transported him to the sheriff’s office.           Hewitt

submitted to a breath test, which revealed an alcohol concentration of .17.

       The state charged Hewitt with two counts of third-degree driving while impaired

(DWI) and two counts of fourth-degree DWI. See Minn. Stat. §§ 169A.20, subds. 1(1),

1(5), 169A.26, subd. 1, 169A.27, subd. 1 (2014). In April 2015, Hewitt moved to


                                             2
suppress evidence and to dismiss the complaint. He served and filed a memorandum of

law in support of the motion, in which he argued that the anonymous tip did not provide

the officers with a reasonable, articulable suspicion of criminal activity so as to justify the

investigative detention. At the hearing on the motion, counsel for the parties jointly

offered the police reports into evidence and agreed that there was no need for testimony.

Counsel for both parties presented oral argument.

       During Hewitt’s attorney’s argument, the district court asked whether Hewitt was

arguing that the deputies violated the Fourth Amendment by entering his property

without a warrant.     Hewitt’s attorney provided a brief, equivocal answer and then

continued to argue that the deputies did not have a reasonable, articulable suspicion of

criminal activity. Three days after the hearing, the state submitted a memorandum of law

in opposition to Hewitt’s motion in which it argued that, contrary to Hewitt’s arguments,

the officers had a reasonable, articulable suspicion of criminal activity. Ten days later,

Hewitt submitted a reply memorandum of law in which he essentially reiterated his

earlier arguments. Four days later, the district court issued an order in which it granted

Hewitt’s motion to suppress on the ground that “[t]he deputies’ warrantless entry into the

building where they made contact with Defendant was improper.”                In light of its

suppression ruling, the district court dismissed the charge for lack of probable cause. The

state appeals.




                                              3
                                     DECISION

       The state argues that the district court erred by granting Hewitt’s motion, for two

reasons. First, the state argues that the district court erred by granting Hewitt’s motion to

suppress on an issue that was not argued in Hewitt’s motion papers and was not argued

by Hewitt’s attorney at the hearing on the motion. The state does not argue that it is

improper for a district court to grant relief to a moving party on a basis that never was

raised or argued by the moving party. Rather, the state contends that it was deprived of

fair notice and an opportunity to present evidence and argument on the issue that the

district court deemed to be decisive because Hewitt did not make the argument and

because the district court did not inform the state that the issue would be considered and

decided. Second, the state argues that the district court erred by concluding that the

officers’ warrantless entry violated the Fourth Amendment without considering whether

Hewitt had a reasonable expectation of privacy based on the particular facts of this case,

including the fact that the investigative detention apparently occurred on commercial

property.1


       1
         If the state appeals from a pre-trial order, “the state must clearly and
unequivocally show . . . that the trial court’s order will have a critical impact on the
state’s ability to prosecute the defendant successfully.” State v. Barrett, 694 N.W.2d 783,
787 (Minn. 2005) (quotations omitted). Hewitt concedes that the district court’s
suppression order would have a critical impact on the state’s prosecution. Hewitt
contends, however, that the state may not appeal from the district court’s pre-trial order
because the district court dismissed the complaint for lack of probable cause based on a
factual determination. Hewitt relies on a rule that precludes the state from appealing
from a district court’s pre-trial ruling “if the [district] court dismissed a complaint for
lack of probable cause premised solely on a factual determination.” Minn. R. Crim. P.
28.04, subd. 1(1). But the district court did not dismiss the complaint solely because of a
factual determination; rather, the district court’s determination that there is no probable

                                             4
       For its first argument, the state relies on State v. Needham, 488 N.W.2d 294

(Minn. 1992). In that case, the defendant sought to suppress certain pre-trial statements

on the ground that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602 (1966). Needham, 488 N.W.2d at 295. At the omnibus hearing, the

defendant introduced evidence that was intended to prove that he did not agree to talk to a

police officer without an attorney. Id. at 296. The parties simultaneously filed post-

hearing memoranda of law. Id. at 296. In the defendant’s memorandum, he argued, for

the first time, that the state failed to carry its burden of proving by a preponderance of the

evidence that the investigating officer’s Miranda warning was a proper warning. Id. The

district court granted the defendant’s motion on that issue. Id. On the state’s pre-trial

appeal, the supreme court reversed the district court’s suppression ruling on the ground

that “it was not clear to the prosecutor that the defense was contending that the warning

admittedly given defendant was inadequate or incomplete.” Id. The supreme court

reasoned that “the focus of the omnibus hearing was on other issues relating to the taking

of the confession” and that “[i]t was not until the prosecutor received the defendant’s

omnibus hearing brief, filed simultaneously with the state’s brief, that the prosecutor

could know that the defense was making an issue of the adequacy of the warning given

defendant.” Id. Accordingly, the supreme court concluded that “a reopening of the


cause is based on its legal conclusion that law-enforcement officers violated the Fourth
Amendment in obtaining the evidence that Hewitt sought to suppress. If a dismissal for
lack of probable cause is based on a legal conclusion contained in the same order, the
state is not precluded from bringing a pre-trial appeal. See State v. Dunson, 770 N.W.2d
546, 549 (Minn. App. 2009), review denied (Minn. Oct. 20, 2009). Thus, the state may
pursue this pre-trial appeal of the district court’s order.

                                              5
omnibus hearing is justified in order to give the state a full and fair opportunity to meet

its burden” on the adequacy of the Miranda warning. Id. at 296-97.

       Hewitt argues that this case is distinguishable from Needham. He contends that

the state had notice of the issue on which the district court decided the motion. More

specifically, he contends that the state was put on notice of the decisive issue by

statements made at the hearing on his motion. Before inquiring into the record, we note

that there is a clear distinction between the sole issue raised by Hewitt’s motion papers

before the hearing and the issue that caused the district court to grant his motion. Hewitt

made only one argument in his initial memorandum of law: that the information provided

by the anonymous tip was lacking in reliability and specificity such that it did not allow

the officers to form a reasonable, articulable suspicion that Hewitt had committed the

offense of DWI. The district court, however, resolved the motion by deciding that the

officers violated the Fourth Amendment by entering Hewitt’s property without a warrant.

The state plainly could not have anticipated the district court’s ruling based only on the

motion papers that Hewitt served and filed before the hearing. The question is whether

the state received notice of the warrantless-entry issue after Hewitt served and filed his

motion.

       Hewitt contends that the state received notice of the warrantless-entry issue at the

hearing on his motion.      Hewitt’s contention is focused on the following exchange

between the district court and his attorney:

                           COURT: . . . . They can walk up to him, if his
                     pickup is in a public place or a place accessible to the



                                               6
                     public. But what about entering a private building
                     which he’s -- it’s his building?

                            MR. DANIELSON: It is. Yeah.

                            THE COURT: Can they do that? . . . . Are
                     you going to argue that? Because that’s where my
                     concern comes up.         I tend to agree with [the
                     prosecutor]. If he’s stopped on the road, they can walk
                     up to him without probable cause. They can walk up
                     to anyone in a public area. And if they detect the odor
                     of alcohol, and he’s in physical control, that’s one
                     thing. But to walk into a building that’s owned by
                     him, without a warrant --

                            MR. DANIELSON: Well, yeah. And, I guess -
                     - yeah. I’m not here to disagree with you, obviously.
                     But I didn’t even think they had the right to come into
                     his presence. Because the only reason that they came
                     there was because of these reports. And if the reports
                     provide no basis, at all, for any kind of suspicion of
                     criminal activity, they would never have been there at
                     all. And to just say somebody is drunk, when you
                     haven’t said, well, I saw them driving around, they
                     almost hit the building or this or that. That, to me, is
                     not enough for them to even be . . . there.

This excerpt demonstrates that the district court raised an issue concerning the officers’

warrantless entry and specifically asked Hewitt’s attorney, “Are you going to argue

that?” Hewitt’s attorney did not take the opportunity to pursue the issue identified by the

district court by adopting it as an argument made on behalf of Hewitt. In fact, the

transcript reveals that Hewitt’s attorney quickly transitioned back to his original

argument that the anonymous tipster had not provided the officers with enough

information to allow them to form a reasonable, articulable suspicion that Hewitt had

engaged in criminal activity. After this exchange, it was reasonable for the prosecutor to



                                            7
believe that Hewitt was not expanding his argument for suppression beyond the one issue

that was argued in Hewitt’s initial memorandum of law. Thus, the colloquy between the

district court and Hewitt’s attorney did not put the state on notice that the district court

would consider the officers’ warrantless entry to be a basis for granting Hewitt’s motion.

       Because the state did not have notice of the warrantless-entry issue, the state did

not have “a full and fair opportunity to meet its burden” on the question whether the

officers’ warrantless entry violated the Fourth Amendment. See id. at 296-97. For that

reason, “a reopening of the omnibus hearing is justified.” See id. Having resolved the

state’s first argument in its favor, we need not consider the state’s second argument.

       In sum, we reverse the district court’s order suppressing evidence and dismissing

the charge, and we remand the matter to the district court for further proceedings.

       Reversed and remanded.




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