                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1844

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Kyle Anthony Compardo,
                                    Appellant.

                                Filed August 18, 2014
                                      Affirmed
                                   Johnson, Judge

                            Ramsey County District Court
                              File No. 62-CR-11-4537


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

John J. 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 Connolly, Presiding Judge; Johnson, Judge; and

Hooten, Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

      A Ramsey County jury found Kyle Anthony Compardo guilty of a third-degree

controlled-substance offense based on evidence that he sold heroin to a confidential

informant. Compardo argues that the district court erred by denying his pre-trial motion

to suppress evidence of an inculpatory statement that he gave to investigating police

officers. We affirm.

                                        FACTS

      In late 2010, a confidential informant who was cooperating with the Richfield

Police Department informed Officer Brian Rogge that Compardo was selling heroin. In

January 2011, Officer Rogge arranged for the informant to make a controlled buy from

Compardo. Officers attached audio-surveillance equipment to the informant, brought

him to Compardo’s apartment building, and provided him with four $20 bills after

recording their serial numbers. Officers conducted a pat-down search of the informant

before he entered the building to ensure that he was not carrying any drugs or weapons.

The informant entered Compardo’s apartment building and returned “within a couple of

minutes” with .4 grams of heroin. The informant told officers that he purchased the

heroin from Compardo. During the controlled buy, law-enforcement officers conducted

both audio and visual surveillance of the informant at all times, except when the

informant was inside the apartment building, when only audio surveillance was possible.

      Two days later, after confirming that Compardo was on probation in Ramsey

County, Officer Rogge, two other police officers, and two probation agents went to


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Compardo’s apartment to conduct a probationary search.              The officers informed

Compardo that the purpose of the visit was two-fold: to conduct a probationary search

and to obtain his consent to search for controlled substances.           The officers read

Compardo his Miranda rights and presented him with a consent-to-search form, which

included a written Miranda warning. Compardo signed the form, and officers searched

his apartment. Officers found two of the $20 bills that had been supplied to the informant

before the controlled buy.

       After the officers found the two $20 bills, Officer Rogge interviewed Compardo in

his living room. During the interview, Compardo stated that he was “involved in, you

know, dealing and hooking people with some heroin.” He stated that he usually has

between two and twelve half-grams of heroin on hand, that he normally sells the heroin

from his apartment, that he typically buys heroin for $50 per half-gram, and that he

typically sells a half-gram of heroin for “[a]round 80” dollars. He stated that the last time

he sold heroin was “a couple days” earlier.

       At some point while in Compardo’s apartment, the officers had a conversation

with him in which they inquired whether he was interested in assisting the police

department as a confidential informant in other investigations. Compardo apparently

provided some information to law enforcement about drug-trafficking activity by others,

but Officer Rogge later testified that Compardo’s information “did not pan out.”

       Officer Rogge’s interview of Compardo, which lasted approximately six minutes

and contained Compardo’s admission that he sold heroin, was audio-recorded. The




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officers’ conversation with Compardo about the possibility of becoming a confidential

informant was not audio-recorded.

       In June 2011, the state charged Compardo with third-degree controlled-substance

crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2010).         In January 2012,

Compardo moved to suppress the statement he gave to Officer Rogge on the ground that

the officers did not record the conversation concerning the possibility of Compardo

becoming a confidential informant. The district court denied the motion.

       The case was tried to a jury over two days in April 2013.           The jury found

Compardo guilty. The district court sentenced him to 46 months of imprisonment.

Compardo appeals.

                                      DECISION

       Compardo argues that the district court erred by denying his motion to suppress

the evidence of his self-inculpatory statement to Officer Rogge on the ground that the

officers did not make an audio-recording of all conversations between him and the

officers who were in his apartment.

       Twenty years ago, in State v. Scales, 518 N.W.2d 587 (Minn. 1994), the supreme

court, exercising its “supervisory power to insure the fair administration of justice,” held

that “all custodial interrogation including any information about rights, any waiver of

those rights, and all questioning shall be electronically recorded where feasible and must

be recorded when questioning occurs at a place of detention.” Id. at 592. Since Scales,

law enforcement officers have been “legally obliged to tape record not just the so-called

‘formal statement’ by the defendant but the entire custodial interrogation, including the


                                             4
giving of the Miranda warning, the obtaining of a waiver, and that part of the

interrogation that [officers] euphemistically refer[] to as the ‘pre-interview.’” State v.

Thaggard, 527 N.W.2d 804, 808 (Minn. 1995).              If a violation of the recording

requirement is “substantial,” “any statements the suspect makes in response to the

interrogation may be suppressed at trial.” Scales, 518 N.W.2d at 592. Whether a failure

to record an interrogation is a substantial violation of the Scales recording requirement is

a question of law, to which this court applies a de novo standard of review. State v.

Inman, 692 N.W.2d 76, 79 (Minn. 2005).

       The state argues that there is no Scales violation in this case because Compardo

was not in custody when he spoke with officers about the possibility of becoming a

confidential informant. The state also argues, in the alternative, that if there is a Scales

violation, the violation is not substantial.     The state further argues, again in the

alternative, that if there is a substantial Scales violation, the violation would be a

harmless error.

       We need not address the state’s first argument concerning whether Compardo was

in custody because, given the facts in the district court record and the parties’ respective

arguments, it is clear that, even if there is a Scales violation, the violation is not

“substantial.” See State v. Buckingham, 772 N.W.2d 64, 69 (Minn. 2009) (“We need not

determine if there was a Scales violation here because, if there was, it was not

substantial.”). “Among the factors in determining the substantiality of a Scales violation

is whether the violation is prejudicial to the accused.” Inman, 692 N.W.2d at 81 (citing

Scales, 518 N.W.2d at 592 n.5; Model Code of Pre-Arraignment Procedure § 150.3(2)(a)


                                             5
(1975)). This factor promotes “‘the rationale underlying the recording requirement,’”

which is “‘to avoid factual disputes underlying an accused’s claims that the police

violated his constitutional rights.’” Id. (quoting State v. Williams, 535 N.W.2d 277, 289

(Minn. 1995)). Accordingly, a Scales violation is not substantial “[i]f it is undisputed

that the Miranda warning was administered, or that the accused waived his or her right to

remain silent” because in such a case “the lack of a recording creates no prejudice to the

accused.” Id.; see also Buckingham, 772 N.W.2d at 69; State v. Miller, 573 N.W.2d 661,

674-75 (Minn. 1998); Williams, 535 N.W.2d at 289.               Other factors relevant to

substantiality include, but are not limited to, “the extent to which the violation was

willful, the extent to which the exclusion will tend to prevent future violations, [and] the

extent to which the violation is likely to have influenced the defendant’s decision to make

the statement.” Inman, 692 N.W.2d at 80 n.3.

       In this case, there is no apparent prejudice to Compardo arising from the lack of a

recording of the conversation about the possibility of his becoming a confidential

informant. It is undisputed that Compardo was advised of his Miranda rights while the

officers were in his apartment. Compardo received his first Miranda warning orally

before officers obtained his consent to search his apartment. He also received a written

Miranda warning via the consent-to-search form, which he signed. Compardo received

another oral Miranda warning during Officer Rogge’s audio-recorded interview. Each

time, Compardo indicated that he understood his rights and was willing to talk to the

officers. In light of the absence of any dispute about the existence and validity of the

Miranda warnings, the partial recording was not prejudicial to Compardo. See id. at 81.


                                             6
       The other factors relevant to substantiality also support the conclusion that any

Scales violation is not substantial. See id. at 80 n.3. One of the officers testified that, in

his experience, conversations with suspects about becoming confidential informants are

“absolutely not” recorded because doing so could lead to the disclosure of the

informant’s identity, which could jeopardize the informant’s safety. Compardo does not

challenge the officer’s justification for not recording that part of the conversation.

Compardo also does not identify any other factors that would support a conclusion that

any Scales violation is substantial. Thus, we conclude that any Scales violation in this

case is not substantial. In light of that conclusion, we need not consider the state’s

argument concerning harmless error.

       In sum, the district court did not err by denying Compardo’s motion to suppress

evidence.

       Affirmed.




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