                           This opinion will be unpublished and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
                                      A14-1621

                                     State of Minnesota,
                                         Respondent,

                                             vs.

                                      Wallace Owens,
                                        Appellant.

                                  Filed December 7, 2015
                                         Affirmed
                                      Peterson, Judge

                              Hennepin County District Court
                                 File No. 27-CR-14-890

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Linda K. Jenny,
Assistant County Attorneys, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Peterson, Judge; and Stauber,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from a conviction of possession of a firearm by a prohibited person,

appellant (1) challenges the denial of his motion to suppress evidence and (2) argues that
the evidence presented at trial was insufficient for the jury to find that he constructively

possessed a handgun. We affirm.

                                         FACTS

       In January 2014, Hennepin County Sheriff’s Deputies Marshall and Sundberg

executed a warrant for the arrest of appellant Wallace Owens. Court records showed that

in August and November 2013, Owens provided an address on Lowry Avenue as his

address. Records also showed that Owens had used an address on Washburn Avenue, but

the deputies learned that new tenants lived at the Washburn address.

       The deputies went to the Lowry Avenue address and listened at the door to the

apartment at that address. They heard a male and a female speaking inside the apartment.

Marshall knocked on the door, and N.W. answered. According to Marshall, when N.W.

was asked whether Owens was inside the apartment, “she turned, quickly looked back

over her shoulder, turned back towards [the deputies] with her mouth hanging open and a

blank stare on her face like she didn’t know what to say.” Sundberg also testified that

N.W. “looked over her left shoulder towards the bedroom and looked back at us with

kind of a blank stare, mouth open, and did not have a response.” “Based on the totality of

what we knew and what [N.W.] did at that time,” Marshall believed that Owens was

inside the apartment, and he pushed the door further open without N.W.’s consent.

       The deputies were familiar with Owens’s appearance, and they saw him in the

bedroom sitting on the side of the bed. The deputies entered the apartment without

consent and arrested Owens. At the time of the arrest, Sundberg did a “brief protective




                                             2
sweep” of the bedroom and “could see in plain view under . . . an open nightstand, that

there was a Mason jar that appeared to have marijuana in it.”

      Based on Sundberg’s observation of a suspected felony amount of marijuana, law

enforcement obtained and executed a search warrant for the apartment that same day. In

addition to finding marijuana, law enforcement discovered a loaded handgun under the

mattress in the bedroom. Owens had a previous felony conviction, and he was charged

with possession of a firearm by a prohibited person.

      At a Rasmussen hearing, Owens argued that the arrest warrant was improperly

executed and moved to suppress the evidence against him. The district court heard

testimony from Marshall, Sundberg, and N.W. and then, in a ruling from the bench,

denied Owens’s motion to suppress evidence, stating:

             There’s more than enough evidence to believe the [deputies]
             had reason to believe that [Owens] was staying at [the Lowry
             Avenue] address. . . . [H]e, by his own admissions, he had
             listed that address in August of 2013 and November of 2013,
             so the [deputies] did their due diligence to try to find out
             where he was living. He apparently used two different
             addresses: one of them was on Washburn and the other one
             was this address on Lowry. The [deputies] checked the
             Washburn one and he obviously wasn’t there, so they
             checked the only other one that he himself apparently had
             listed on two different occasions fairly recently, and that was
             the one on Lowry.

                    So the [deputies] . . . didn’t just barge in, they
             knocked, they told the person why they were there, they
             asked her some questions. And what she did made them even
             more suspicious, or kind of confirmed their suspicion that he
             was in fact staying there. So they certainly had a right. They
             would have had a right to go in anyway, even without the
             contact at the door, but that just gives them even more belief,



                                            3
              reasonable belief that he was staying there. And, of course,
              he was.

                     So I do think the [deputies] had sufficient evidence to
              enter that residence and to arrest [Owens].

The district court also determined that the subsequent search warrant, search of the

apartment, and discovery of the handgun were lawful due to the observation of marijuana

in plain view during the execution of the arrest warrant.

       At the jury trial that followed, Marshall testified that the Lowry Avenue

apartment was leased by N.W., Owens had listed the Lowry Avenue address as his

address in court records, and the property at the Washburn Avenue address on record for

Owens had been occupied by new tenants since September 2013. Another sheriff’s

deputy testified that, when Owens was booked into jail following his arrest, he told the

booking clerk that he had lived at the Lowry Avenue apartment for approximately four

months.

       An examiner employed by the Hennepin County Sheriff’s Office Crime Lab

testified that he found no identifiable fingerprints when he examined and tested the

handgun discovered in the bedroom. The examiner also testified that it is not unusual to

find no identifiable fingerprints on a firearm. A forensic scientist employed by the crime

lab testified that she performed DNA testing on the handgun and there were so many

DNA profiles on the gun that “there was no guarantee that any one person was fully

represented there.” The forensic scientist testified that such a result is not unusual when a

firearm is tested for DNA. The jury found Owens guilty of possession of a firearm by a

prohibited person. This appeal followed.


                                             4
                                     DECISION

                                             I.

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

evidence stemming from what he contends was an improper execution of the arrest

warrant.    When reviewing a district court’s pretrial order on a motion to suppress

evidence, an appellate court reviews factual findings under a clearly-erroneous standard

and reviews legal determinations de novo. State v. Eichers, 853 N.W.2d 114, 118 (Minn.

2014), cert. denied 135 S. Ct. 1557 (2015). “A finding is clearly erroneous when there is

no reasonable evidence to support the finding or when an appellate court is left with the

definite and firm conviction that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880,

885 (Minn. 2012). The determination of witness credibility on a motion to suppress

evidence is left to the district court. See State v. Johnson, 463 N.W.2d 527, 532 (Minn.

1990).     The constitutionality of a search or seizure is reviewed de novo.        State v.

Anderson, 733 N.W.2d 128, 136 (Minn. 2007).

         “[A]n arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when there is reason to

believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,

1388 (1980); see also Steagald v. United States, 451 U.S. 204, 221, 101 S. Ct. 1642, 1652

(1981) (stating that “an arrest warrant alone will suffice to enter a suspect’s own

residence to effect his arrest”). “Under Payton, officers executing an arrest warrant must

have a reasonable belief that the suspect resides at the place to be entered and have reason

to believe that the suspect is present at the time the warrant is executed.” United States v.


                                             5
Risse, 83 F.3d 212, 216 (8th Cir. 1996) (emphasis omitted) (quotation omitted). Whether

officers possessed a reasonable belief about the suspect’s residence “is a mixed question

of fact and law.” Id. at 215 (quotation omitted). The findings with respect to the

historical facts are reviewed for clear error and the ultimate conclusion is reviewed de

novo. Id.

          An arrest warrant does not authorize entry into a third party’s home to conduct an

arrest; absent exigent circumstances, a search warrant must be obtained to enter the third

party’s home. Steagald, 451 U.S. at 220-22, 101 S. Ct. at 1652. The exclusionary rule

requires suppression of the direct or indirect products of an unlawful invasion. Wong Sun

v. United States, 371 U.S. 371, 484-85, 83 S. Ct. 407, 416 (1963).

          Owens argues that the district court failed to make necessary findings that the

deputies had a reasonable belief that he resided at the Lowry Avenue apartment and had

reason to believe that he was present at the apartment when the arrest warrant was

executed. The district court determined that there was “more than enough evidence to

believe the [deputies] had reason to believe that [Owens] was staying at [the Lowry

Avenue] address” and that the deputies had a “reasonable belief that he was staying

there.”     Owens contends that because “staying” may be defined differently than

“residing,” the district court did not find that the deputies had a reasonable belief that he

resided at the Lowry Avenue apartment. But the district court also found that Owens was

using the address on Lowry Avenue as his address and that the deputies “did their due

diligence to try to find out where [Owens] was living,” which demonstrates that although

the district court referred to where Owens was “staying,” the district court’s conclusion


                                              6
was that the deputies had a reasonable belief that Owens was residing at the Lowry

Avenue apartment.

      Furthermore, we review de novo the ultimate conclusions that the deputies had a

reasonable belief that Owens resided at the Lowry Avenue apartment and that he was

present at the apartment when the arrest warrant was executed. See Risse, 83 F.3d at 215.

Marshall testified at the Rasmussen hearing that he had addresses for Owens on

Washburn Avenue and Lowry Avenue, and he learned that new tenants resided at the

Washburn Avenue address. He also learned that Owens had provided the Lowry Avenue

address for court records in August and November 2013, only a few months before the

arrest warrant was executed. From these facts, we conclude that the deputies had a

reasonable belief that Owens resided at the Lowry Avenue apartment.

      Marshall and Sundberg testified at the Rasmussen hearing that they listened at the

door before knocking and heard a male and a female speaking inside. Marshall testified

that, when N.W. answered the door and was asked whether Owens was inside the

apartment, “she turned, quickly looked back over her shoulder, turned back towards [the

deputies] with her mouth hanging open and a blank stare on her face like she didn’t know

what to say.” Marshall also testified that, “[b]ased on the totality of what we knew and

what [N.W.] did at that time [he] believed . . . Owens was in the apartment.” Sundberg

testified that N.W.’s reaction upon being asked whether Owens was inside the apartment

was that “[s]he looked over her left shoulder towards the bedroom and looked back at us

with kind of a blank stare, mouth open, and did not have a response.” Sundberg also

testified that, “in my training and experience, it looked like [N.W.] was trying to hide


                                           7
something, that there was someone behind her.” Based on this testimony, we conclude

that the deputies had reason to believe that Owens was present at the Lowry Avenue

apartment.

       Because the deputies had a reasonable belief that Owens resided at and was

present at the Lowry Avenue apartment, they had the authority to enter the apartment to

execute the arrest warrant after knocking at the door and giving the apartment’s residents

an opportunity to respond. See Payton, 445 U.S. at 603, 100 S. Ct. at 1388; see also

Hudson v. Michigan, 547 U.S. 586, 589-90, 126 S. Ct. 2159, 2162-63 (2006) (stating that

law enforcement officers executing a warrant at a residence generally must announce

their presence and provide the residents an opportunity to open the door).

       Owens argues in his pro se supplemental brief that the protective sweep of the

bedroom during his arrest was not justified. “[L]aw enforcement officers may conduct,

as a precautionary measure, protective sweep searches of areas immediately adjoining the

place of arrest without probable cause or reasonable suspicion to believe criminal conduct

is occurring.” State v. Bergerson, 671 N.W.2d 197, 203 (Minn. App. 2003) (citing

Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990)), review denied (Minn. Jan. 20,

2004). The deputies testified at the Rasmussen hearing that when Marshall arrested

Owens as Owens was leaving the bedroom, Sundberg entered the bedroom and saw the

Mason jar in plain view. Sundberg’s protective sweep of the bedroom during Owens’s

arrest was lawful. Because the arrest warrant was properly executed, the district court did

not err by denying Owens’s motion to suppress evidence.




                                            8
                                            II.

       Owens argues that the evidence presented at trial was insufficient to prove beyond

a reasonable doubt that he possessed the handgun discovered in the apartment. Assessing

the sufficiency of the evidence involves “a painstaking review of the record to determine

whether the evidence and reasonable inferences drawn therefrom, viewed in a light most

favorable to the verdict, were sufficient to allow the jury to reach its verdict.” State v.

Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted). The appellate court must

“assume that the [jury] believed the state’s witnesses and disbelieved any contrary

evidence.” Gulbertson v. State, 843 N.W.2d 240, 245 (Minn. 2014) (quotation omitted).

A guilty verdict will not be reversed “if, giving due regard to the presumption of

innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt,

the jury could reasonably have found the defendant guilty of the charged offense.” Vang,

847 N.W.2d at 258 (quotation omitted).

       The sufficiency of circumstantial evidence is reviewed using a two-step analysis.

State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).          First, the appellate court

identifies the circumstances proved by the evidence, “consider[ing] only those

circumstances that are consistent with the verdict.” Id. at 598-99 (stating that the jury is

in the best position to evaluate the credibility of circumstantial evidence and that the

appellate court “defer[s] to the jury’s acceptance of the proof of these circumstances and

rejection of evidence in the record that conflict[s] with the circumstances proved”

(quotation omitted)).      Second, the appellate court “determine[s] whether the

circumstances proved are consistent with guilt and inconsistent with any rational


                                             9
hypothesis except that of guilt.”    Id. at 599 (quotations omitted) (stating that the

reasonableness of all inferences is examined independently, with no deference given to

the jury’s choice between reasonable inferences).

      “Possession of a firearm may be proved through actual or constructive

possession.” State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015).

             [T]o establish constructive possession, the State must show
             either (1) that the prohibited item was found “in a place under
             defendant’s exclusive control to which other people did not
             normally have access,” or (2) if the prohibited item was found
             “in a place to which others had access, there is a strong
             probability (inferable from other evidence) that defendant was
             at the time consciously exercising dominion and control over
             it.”

Id. (quoting State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975)) (stating

that the Florine analysis is fact driven and that “ease of access is certainly one factor

relevant to establishing constructive possession”); see also State v. Porte, 832 N.W.2d

303, 308 (Minn. App. 2013) (stating that “[p]roximity is an important factor in

establishing constructive possession” and that “an item that is constructively possessed

may be possessed by more than one person” (quotation omitted)).

              [T]he purpose of the constructive-possession doctrine is to
             include within the possession statute those cases where the
             state cannot prove actual or physical possession at the time of
             arrest but where the inference is strong that the defendant at
             one time physically possessed the item and did not abandon
             his possessory interest in the item but rather continued to
             exercise dominion and control over it up to the time of the
             arrest.

Salyers, 858 N.W.2d at 159 (quotation omitted).




                                           10
       The handgun was not found in Owens’s physical possession or in a place under his

exclusive control. The parties dispute whether the evidence was sufficient to permit a

strong inference that Owens consciously exercised dominion and control over the

handgun up to the time of his arrest.       The circumstances proved by the evidence

presented at trial include that Owens was living at the Lowry Avenue apartment at the

time of his arrest; he was using the Lowry Avenue address as his address and stated when

being booked into jail that he had lived at the apartment for approximately four months.

The apartment contained one bedroom.        When the deputies first saw Owens in the

apartment, he was in the bedroom sitting on the side of the bed facing the doorway to the

bedroom. Photographs admitted into evidence show that the handgun was found between

the mattress and box spring near the side of the bed closest to the doorway to the

bedroom. No identifiable fingerprint or DNA profile was discovered on the handgun,

which is not an unusual result when a firearm is tested. The search of the bedroom also

revealed loose bullets under the box spring, hidden piles of currency totaling

approximately $1,600, and multiple Mason jars containing an amount of marijuana that is

not consistent with personal use.

       The only reasonable inference from the circumstances proved is that Owens

constructively possessed the handgun by consciously exercising dominion and control

over it up to the time of his arrest. The discovery of an item in a defendant’s bedroom

permits an inference that the defendant constructively possessed the item. See, e.g., State

v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979) (holding that the evidence was sufficient to

support the jury’s finding of constructive possession where controlled substances were


                                            11
found in the defendant’s bedroom); State v. Simon, 275 N.W.2d 51, 52 (Minn. 1979)

(“The state’s evidence showed that the LSD, along with other items, including a syringe,

a passport, and a balance scale, was found in defendant’s bedroom during the execution

of a warrant to search the mobile home which defendant jointly leased and occupied with

a friend. This evidence clearly was sufficient to prove constructive possession.”). And

the handgun was discovered under the location where Owens was sitting when the

deputies first saw him. See Salyers, 858 N.W.2d at 159 (stating that “ease of access is

certainly one factor relevant to establishing constructive possession”); Porte, 832 N.W.2d

at 308 (stating that “[p]roximity is an important factor in establishing constructive

possession” (quotation omitted)). Owens is correct that N.W. or someone else may have

possessed the handgun, but, because constructive possession may be shared, that

possibility does not preclude a conclusion that Owens constructively possessed the

handgun. See Porte, 832 N.W.2d at 308 (“[A]n item that is constructively possessed may

be possessed by more than one person.”). The evidence presented at trial was sufficient

to prove that Owens constructively possessed the handgun.

      Affirmed.




                                           12
