                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0432

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                  Kyle Dean McClain,
                                      Appellant.

                                Filed May 4, 2015
                              Reversed and remanded
                               Cleary, Chief Judge
                          Concurring specially, Ross, Judge

                             St. Louis County District Court
                               File No. 69DU-CR-13-701


Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Peter J. Farrell, Special Assistant Public Defender, Faegre Baker Daniels LLP,
Minneapolis, Minnesota (for appellant)


      Considered and decided by Reilly, Presiding Judge; Cleary, Chief Judge; and

Ross, Judge.

                                   SYLLABUS

      The inevitable-discovery exception to the exclusionary rule is limited to physical

evidence and does not apply to statements obtained after an unlawful search.
                                     OPINION

CLEARY, Chief Judge

      The state charged appellant with first- and second-degree assault. Before trial,

appellant moved to suppress a statement that he gave after a warrantless entry. The

district court suppressed appellant’s statement, but allowed it to be used for purposes of

impeachment. During trial, the district court reversed the suppression order and admitted

appellant’s statement as substantive evidence under the inevitable-discovery doctrine.

The state subsequently utilized the statement for impeachment purposes and as

substantive evidence. The jury convicted appellant and this appeal followed. Because

the inevitable-discovery doctrine does not apply to statements and because the district

court committed prejudicial error in allowing the statement to be admitted as substantive

evidence, we reverse and remand for a new trial.

                                        FACTS

      On February 18, 2013, around 10:15 p.m., Duluth police responded to a call from

the Duluth detoxification center regarding a stabbing. The victim had a stab wound to the

chest. The police identified the victim, but he was unable to coherently respond to police

questions.

      While several officers treated the victim, other officers attempted to locate where

the stabbing had occurred. The officers were not able to recover any information from

the victim initially, so Officer Dan Neitzel began searching the victim’s history in

department computer records to see if he had any known addresses. Officer Neitzel



                                            2
found that the victim was associated with 1027 East Third Street. Officer Neitzel went to

that address with another officer and discovered drops of blood at the “northwest corner

of th[e] intersection just before the sidewalk.” Officer Neitzel followed a trail of blood

leading to the sidewalk in front of 1027 East Third Street and testified that it appeared to

come from one source. Several officers then knocked on the door to see if anyone was

inside. No one responded. Officer Neitzel stated that he believed that there could have

been other individuals inside the apartment who were injured during the victim’s stabbing

because of the large amount of blood outside.

       Officer Neitzel’s supervisor gave him permission to forcibly enter the house. The

officers kicked open the front door and found three males inside the residence. The

officers noted blood on the back of the front door, blood on the stairwell leading upstairs,

and blood on a rag inside the entryway to the residence. Once the residence was secure,

the officers took the three males to Duluth police headquarters. The police identified

appellant Kyle Dean McClain as one resident, along with roommates G.C. and R.S.

       Around midnight, two investigators began interviewing appellant. He was given a

Miranda warning and agreed to speak with the police. Appellant said that he had been in

his downstairs room all evening watching television. He claimed that he had no visitors

that evening but heard a knock at the door. He did not look to see who it was. Appellant

admitted that he knew the victim and that they had lived together at 1027 East Third

Street only a few months prior to the stabbing. When asked if there were any weapons in

the house, appellant said there was a sword in his room that had blood on it because G.C.



                                             3
had accidently cut himself. Appellant stated that there should not be any items in the

house with the victim’s blood; that he had not seen the victim in months; and that the last

time he saw the victim, appellant told him he would “kick his a--” if he came back to the

house.

         The investigators next spoke with G.C. and R.S. Both men gave substantially

similar accounts. They said that they were upstairs that evening and heard someone

pounding at the door for about an hour. They heard appellant telling the person pounding

on the door to leave, and that once the pounding stopped, appellant went upstairs and told

G.C. that he threw the victim out. About thirty minutes later, they once again heard

pounding at the door and heard appellant yelling “[g]et the hell out of here.” The

pounding stopped and they went downstairs to have a couple shots of whiskey with

appellant. At that time, both witnesses claimed that appellant only told them that he got

rid of the victim but did not mention a fight or physical altercation.

         At the same time that Officer Neitzel and others were investigating the victim’s

known residences or affiliations, the victim was transported from the detoxification

center to St. Luke’s Hospital for treatment. The hospital staff stabilized the victim’s

condition and officers began to question him. The victim eventually stated that an

individual named Kyle had stabbed him, but he did not know Kyle’s last name. The

victim said that Kyle lived at 1023 East Third Street. The officers informed Officer

Neitzel about the address. Officer Neitzel replied that they found a trail of blood leading

to 1027 East Third Street. The officers then asked the victim if he meant 1027 East Third



                                              4
Street, and the victim confirmed that he was stabbed there. The victim then said that

Kyle had stabbed him with a machete that was approximately two feet long and explained

that he lived at 1027 East Third Street up until two months ago. The victim said he got

into a “minor altercation” with Kyle leading up to the stabbing.

       After the officers interviewed the victim and the three men from 1027 East Third

Street, they applied for a warrant to search 1027 East Third Street. The warrant was

based on the belief that blood and objects that can cause sharp force trauma were located

inside. The supporting affidavit included fourteen paragraphs. Paragraphs one through

six contained facts that the police had obtained by interviewing the victim and locating

blood outside of 1027 East Third Street, including the victim’s accusation that a man

named Kyle stabbed him at that address. Paragraphs seven through fourteen contained

information that the officers obtained after forcibly entering 1027 East Third Street,

including information gleaned from the interviews with the three males at that residence.

After the district court signed the search warrant, the police executed it around 2:30 a.m.

on February 19, 2013. The police found a black and silver sword that appeared to have

blood and tissue on the blade.

       The state charged appellant with first- and second-degree assault. Appellant made

a motion to suppress the following: (1) evidence discovered during the initial warrantless

search of 1027 East Third Street; (2) evidence discovered during the execution of the

search warrant; (3) the collection of appellant’s DNA; and (4) the statements made by

appellant, G.C., and R.S. before the execution of the search warrant.



                                            5
       The district court had two omnibus hearings, the first one dealing with the

warrantless entry, and the second regarding the warrant application and the issue of

probable cause. At the first omnibus hearing, the district court suppressed the evidence

resulting from the warrantless search: blood, a bloody rag, and the statements made by

appellant and the two other residents. After a second omnibus hearing, the district court

found that there were sufficient factual representations to establish probable cause for the

issuance of the warrant, specifically pointing to paragraphs one through six of the

affidavit, while holding that the information provided in paragraphs seven through

fourteen was suppressed.

       At trial, the testimony of all three residents was inconsistent with their first

statements to the police. G.C. and R.S. repeated their testimony regarding two instances

of prolonged banging on the door on February 18, 2013. They stated that they heard

appellant telling someone to leave on both occasions, but they did not hear anything that

sounded like a physical altercation. After the person outside left the second time, they

went downstairs. G.C. and R.S. now testified that appellant told them that he stuck or

stabbed the victim. Appellant further stated that he stabbed the victim because he was

banging on the door and “raising hell.” R.S. thought appellant was joking until appellant

showed them the bloody sword. R.S. testified that appellant did not complain of being

attacked by the victim.

       Appellant also testified at trial. Appellant stated that he met the victim in 2012

and lived with him at 1027 East Third Street for about a month. Appellant said that he



                                             6
was sleeping when the banging on the door initially woke him. He went to the door and

found the victim. Appellant testified that the victim was visibly drunk and staggering.

After appellant told him that he could not enter the house, the two argued for a while, and

eventually the victim left. The victim returned and resumed pounding on the door.

Appellant again went to the door, but this time with a sword, because he wanted to

intimidate the victim. Appellant testified that as he was telling the victim to leave, the

victim “lunged forward and [appellant] stepped back and brought the sword up.”

Appellant testified that he believed the sword just “bumped [the victim’s] jacket.”

Appellant said that the victim kind of froze for a second after and then left.

       The state questioned appellant about the prior inconsistent statement he gave to the

police the night of the crime. The court held that appellant’s prior inconsistent statement

was admissible for purposes of impeachment. In addition, the district court reversed its

pre-trial ruling and held that appellant’s prior inconsistent statement was admissible as

substantive evidence because the statement would have been inevitably discovered.

       After questioning appellant on cross-examination about the prior inconsistent

statements, the state sought to use an investigator as a rebuttal witness. Before the

investigator testified, the court told the jury that “evidence of any statement [appellant]

may have made may be considered by you for all purposes.” The district court also

permitted the state to play the entire recording of appellant’s prior inconsistent statement.

Appellant objected to the recorded statement and suggested limiting the rebuttal to the




                                              7
investigator’s testimony. The district court admitted the recorded statement, the jury

convicted appellant, and this appeal followed.

                                         ISSUES

       I.     Did the district court commit prejudicial error by admitting appellant’s

prior inconsistent statement as substantive evidence?

       II.    Did the district court properly admit evidence found inside appellant’s

residence based on a sanitized search warrant?

                                       ANALYSIS

                                             I.

       The district court initially suppressed appellant’s first statement to the police, but

later admitted it not only for purposes of impeachment, but as substantive evidence,

based on the inevitable-discovery exception to the exclusionary rule. Appellant argues

the district court erred because a statement to the police, unlike physical evidence, is not

subject to the inevitable-discovery exception. The state argues that the statement should

not have been suppressed in the first place because the warrantless entry was justified by

the emergency-aid exception.      Alternatively, the state argues that the district court

properly applied the inevitable-discovery exception.

       When the facts are not in dispute and the district court’s decision is a question of

law, we “independently review the facts and determine, as a matter of law, whether the

evidence need be suppressed.” In re Welfare of B.R.K., 658 N.W.2d 565, 571 (Minn.

2003) (quotation omitted); see also State v. Askerooth, 681 N.W.2d 353, 359 (Minn.



                                             8
2004) (“When reviewing a pretrial order on a motion to suppress evidence, we may

independently review the facts and determine whether, as a matter of law, the district

court erred in suppressing or not suppressing the evidence.”).

       The Fourth Amendment of the U.S. Constitution and article I, section 10 of the

Minnesota Constitution protect individuals from unreasonable searches and seizures.

U.S. Const. amend. IV; Minn. Const. art. I, § 10. The warrantless search of a person’s

home is presumptively unreasonable. State v. Othoudt, 482 N.W.2d 218, 222 (Minn.

1992). Evidence obtained from an illegal search is also inadmissible as “fruit of the

poisonous tree.” See State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). In addition to

physical evidence, “verbal evidence which derives so immediately from an unlawful

entry and an unauthorized arrest . . . is no less the fruit of official illegality than the more

common tangible fruits of the unwarranted intrusion.” Wong Sun v. United States, 371

U.S. 471, 485, 83 S. Ct. 407, 416 (1963). The warrant requirement is subject to several

exceptions. State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). Two exceptions are

relevant here: the emergency-aid exception and the inevitable-discovery exception.

       We consider three arguments to determine whether appellant’s prior inconsistent

statement was admissible as substantive evidence.            First, we address whether the

warrantless entry was justified under the emergency-aid exception. Then, we determine

whether the district court properly applied the inevitable-discovery exception. Finally,

even if the statement was inadmissible as substantive evidence, we consider whether its

admission amounted to prejudicial error.



                                               9
                                           A.

      At the first omnibus hearing, the district court rejected the state’s reliance on the

emergency-aid exception to justify a warrantless entry. The district court suppressed the

statements given by appellant and his two roommates as fruit of the poisonous tree. The

state cross-appeals, arguing that the search was justified under the emergency-aid

exception.

      Under the emergency-aid exception, law enforcement officers may enter a home

without a warrant to render emergency assistance to an injured occupant or to protect one

from imminent injury. State v. Lemieux, 726 N.W.2d 783, 787-88 (Minn. 2007). The

state has the burden of proof to show that the circumstances meet the emergency-aid

exception, and courts apply an objective standard to determine whether the officers

reasonably believed that there was an emergency.        Id. at 788.   In determining the

reasonableness of entry, we consider whether the officers have reasonable grounds to

believe that there is an emergency at hand and an immediate need for police assistance

for the protection of life or property. Id. We also consider whether there is a reasonable

basis, close to probable cause, to associate the emergency with the area or place to be

searched. Id. Finally, we consider whether the officers’ search is primarily motivated by

the intent to arrest and seize evidence. Id. at 788, 790. In other words, we need to

consider whether the officers are motivated to enter as criminal investigators or in the




                                           10
officers’ role as community caretakers.1 See Licari, 659 N.W.2d at 258 (Gilbert, J.

dissenting). However, if there is no objectively reasonable emergency justifying the

entry, we need not consider the subjective intent of the officers. See Lemieux, 726

N.W.2d at 790 (stating that an objectively reasonable emergency is necessary to justify

the emergency-aid exception for a warrantless search conducted during a criminal

investigation).

       The officers were not justified in entering 1027 East Third Street based on the

emergency-aid exception. The police were operating under two facts that connected the

residence to the stabbing: (1) the victim was associated with 1027 East Third Street in

the past, and (2) Officer Neitzel found blood on the sidewalk leading to 1027 East Third

Street while investigating the location. These two facts suggest that potential criminal

acts had occurred, but without evidence of an injured occupant of the residence or an

occupant in danger of imminent injury, such facts do not provide a reasonable basis for

the police to execute a warrantless entry based on the emergency-aid exception. At that

point, the victim was receiving medical treatment elsewhere and the police were

investigating a crime.

       Other facts confirm that the police did not have a reasonable basis to believe there

was an emergency at hand and execute a warrantless entry. First, there were no lights on

1
  The emergency-aid exception comes from the police’s community-caretaker function.
As such, it is important to recognize that the exception should not be applied when the
officers are pursuing a criminal investigation and use emergency aid as a pretext. In
cases where the police’s intent is pursuing a criminal investigation, exigent circumstances
and probable cause are the proper tests. See B.R.K., 658 N.W.2d at 578-79 (describing
exigent circumstances test).


                                            11
at 1027 East Third Street indicating that someone was at home or awake in need of help.

Second, there was no evidence in the immediate vicinity of the house indicating that

someone needed medical treatment or that someone was in imminent danger. While

there was blood on the sidewalk leading up to 1027 East Third Street, pictures show that

there was no blood on the steps leading to the house, in the foyer, or on the house itself.

Third, Officer Neitzel testified that the blood trail looked like it belonged to one person,

which undermines his expressed concern about another possible victim.            Fourth, as

appellant notes, the police waited for more officers to arrive in order to effectuate the

warrantless entry, which is inconsistent with a belief in a true medical emergency.

       Finally, in contrast to cases where the police were directed to a house by witnesses

or victims, the officers did not have a statement from the victim or a witness at the time

of forced entry. See State v. Anderson, 388 N.W.2d 784, 787 (Minn. App. 1986) (relying

on a call from a witness saying a suspect was throwing people around and the appearance

of the front room which was strewn with papers, toys, and clothes); State v. Halla-Poe,

468 N.W.2d 570, 573 (Minn. App. 1991) (relying on a statement from a neighbor that the

neighbor had helped a person in need of medical assistance into an apartment).

       Officer Neitzel had a hunch about the house being the location of an altercation

involving the victim, but his suspicion did not give the police an objectively reasonable

belief that anyone inside was in immediate need of police assistance for the protection of

life. See Cnty. of Hennepin v. Law Enforcement Labor Servs., Inc., Local No. 19, 527




                                            12
N.W.2d 821, 826 (Minn. 1995) (stating that facts giving rise to the emergency-aid

exception occur in “rare cases”).

                                            B.

       After appellant’s testimony at trial, the district court held that appellant’s first

statement to the police, which derived from the warrantless entry, would have been

inevitably discovered. The district court gave three reasons for applying the inevitable-

discovery doctrine: the victim identified his attacker as “Kyle,” the victim gave an

approximate address of the assault, and the victim gave other details of the assault.

Appellant argues that the inevitable-discovery doctrine only applies to physical evidence

and is inapplicable to statements.

       The inevitable-discovery doctrine is an exception to the exclusionary rule. See

Licari, 659 N.W.2d at 254. “If the state can establish by a preponderance of the evidence

that the fruits of a challenged search ‘ultimately or inevitably would have been

discovered by lawful means,’ then the seized evidence is admissible even if the search

violated the warrant requirement.” Id. (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.

Ct. 2501, 2509 (1984)). “This exception has been applied in cases where the police

officers possessed lawful means of discovery and were, in fact, pursuing those lawful

means prior to their illegal conduct.” State v. Hatton, 389 N.W.2d 229, 233 (Minn. App.

1986), review denied (Minn. Aug. 13, 1986). The doctrine “involves no speculative

elements but focuses on demonstrated historical facts capable of ready verification or

impeachment.” Nix, 467 U.S. at 444 n.5, 104 S. Ct. 2509 n.5.



                                            13
       Minnesota courts have applied the inevitable-discovery doctrine to physical

evidence,2 but have never applied it to statements. The state cites In re Welfare of

J.W.K., 583 N.W.2d 752 (Minn. 1998) for the proposition that the inevitable-discovery

exception applies to both physical evidence and statements.         In J.W.K., a juvenile

consented to giving the police a blood sample to clear him from suspicion of vandalism.

J.W.K., 583 N.W.2d at 754. The police did not use the blood sample to investigate the

vandalism allegation, but instead used it to identify the juvenile with a previous burglary.

Id. The juvenile did not consent to that use of his blood sample. Id. When the police

confronted the juvenile with the blood-test results, he confessed. Id. The district court

suppressed the blood sample and resulting confession as fruit of the poisonous tree

because the juvenile’s consent did not apply to the burglary. Id. The supreme court

reversed based on the inevitable-discovery doctrine:

                     Because application of the inevitable [] discovery
              [exception] precludes the suppression of the DNA profile
              evidence in this case, we do not believe there is any problem
              with the admissibility of the confession.

                     ....

2
  See Licari, 659 N.W.2d at 254-55 (remanding to determine if physical evidence would
have been inevitably discovered on defendant); see also State v. Diede, 795 N.W.2d 836,
849 (Minn. 2011) (considering but rejecting the use of the exception for a cigarette
package); State v. Harris, 590 N.W.2d 90, 105 (Minn. 1999) (applying the exception to
drug found in the defendant’s jacket sleeve); State v. Barajas, 817 N.W.2d 204, 219
(Minn. App. 2012) (denying use of exception to photographs from a cellular phone),
review denied (Minn. Oct. 16, 2012); State v. Lembke, 509 N.W.2d 182, 184 (Minn. App.
1993) (applying exception to marijuana bag because police would have inevitably
discovered it under search incident to arrest); Geer v. State, 406 N.W.2d 34, 36 (Minn.
App. 1987) (holding that exception applied to sawed-off shotgun that would have been
inevitably discovered during inventory search), review denied (Minn. July 15, 1987).


                                            14
              Even assuming that the police violated the juvenile’s Fourth
              Amendment rights in using the evidence as they did,
              suppression of the evidence, including the confession that was
              obtained, is not required because the record is sufficient to
              establish that the police inevitably would have obtained a
              blood sample from the suspect for the use in question.

Id. at 757. The supreme court never discussed the statement in terms of the inevitable-

discovery doctrine.

       To the extent that the state argues that the supreme court implicitly authorized the

use of the inevitable-discovery doctrine for statements, such an alleged authorization is

not binding law because the supreme court never expressly considered the issue. See

Chapman v. Dorsey, 230 Minn. 279, 288, 41 N.W.2d 438, 443 (1950) (stating that issues

that were never “raised or called to the attention of the court” do not represent binding

law); In re Rollins, 738 N.W.2d 798, 802 (Minn. App. 2007) (“[A]ssumptions underlying

an opinion that are not the subject of a court’s analysis are not precedential on the point

that is assumed.”). And given the importance of the Fourth Amendment rights at issue

here, we do not interpret J.W.K. to hold that the inevitable-discovery doctrine applies to

statements obtained after an unlawful search.

       A majority of other courts that have considered the issue have not allowed

unlawfully obtained statements into evidence based on the inevitable-discovery doctrine.

See United States v. Vasquez De Reyes, 149 F.3d 192, 196 (3d Cir. 1998) (declining to

use the inevitable-discovery doctrine for a statement but not adopting a general rule);

United States v. Polanco, 93 F.3d 555, 561 (9th Cir. 1996) (stating that the inevitable-



                                            15
discovery doctrine does not apply to an unconstitutional inculpatory statement); United

States v. White, 339 F. Supp. 2d 1165, 1176 (D. Kan. 2004) (citing the rule from

Polanco); Erickson v. State, 181 P.3d 1117, 1120 (Alaska Ct. App. 2008) (refusing to

apply inevitable-discovery doctrine to statement based on facts); State v. Lopez, 896 P.2d

889, 910 (Haw. 1995) (limiting application of inevitable-discovery doctrine to tangible

evidence).

       The reasoning behind the majority approach is that the content of a statement, by

its very nature, is speculative. Vasquez De Reyes, 149 F.3d at 196 (“[A] statement not yet

made is, by its very nature, evanescent and ephemeral.”). In contrast, a tangible object is

“hard evidence, and absent its removal will remain where left until discovered.” Id.

Even a slight change in the circumstances under which the statement is made could lead

to a different outcome. In other words, while it may be inevitable that the police will

question somebody, it is not inevitable that the person will give the same statement under

different or even similar circumstances. See Nix, 467 U.S. at 444 n.5, 104 S. Ct. at 2509

n.5 (stating that the inevitable-discovery rule involves no speculative elements).

Statements are ephemeral in nature; physical evidence quite the opposite.

       The facts here present an excellent example of why the inevitable-discovery

exception should be inapplicable to statements. The police made an illegal entry into

appellant’s residence. Appellant was in his room sleeping at the time of the illegal entry.

Appellant testified that he took sleep medication and a couple shots of whiskey before

going to sleep that night. The police began interviewing appellant shortly after 12:00



                                            16
a.m., about an hour or two after appellant went to sleep. Although appellant voluntarily

agreed to speak with the police, the content of his statement, or his willingness to speak,

may well have drastically changed in a short time. For example, the police executed a

search warrant the same night as the illegal entry around 2:00 a.m. If appellant had first

been interviewed after the execution of this search warrant, the whiskey may have

already dissipated from his blood stream, and the sleep medication may have had less of

an effect. The extent to which appellant’s statement would have changed in a matter of

two hours is unknowable.

      Another underlying rationale of the inevitable-discovery doctrine is to put the

police “in the same, not a worse, position that they would have been in if no police error

or misconduct had occurred.” See Nix, 467 U.S. at 443, 104 S. Ct. at 2509. The police

will not necessarily be put in a worse position by this holding because there is already a

framework that courts can use to determine when illegally obtained confessions are

admissible as substantive evidence. In Weekes, the Minnesota Supreme Court adopted a

test to determine whether a connection between the illegal arrest and confession is

tenuous enough to purge the taint of the illegal arrest. See State v. Weekes, 268 N.W.2d

705, 708-09 (Minn. 1978) (listing relevant facts). The state can rely on Weekes to ensure

that police are not put in a worse position by the exclusion of an illegally obtained

confession. While the two doctrines will not always overlap, Weekes at least provides the

state with one avenue to get an unlawfully obtained confession into evidence. There are

situations where the police will be put in a worse situation by the suppression of an



                                            17
illegally obtained statement because the inevitable-discovery doctrine does not apply, but

Nix commands this result because the doctrine involves no speculative elements. Nix,

467 U.S. at 444 n.5, 104 S. Ct. 2509 n.5.

       Finally, the inevitable-discovery doctrine is arguably inconsistent with Weekes.

Instead of showing that the confession was purged of the illegal arrest under Weekes, the

state could argue that a defendant would have inevitably been interviewed and made the

identical confession under similar circumstances. We believe that the required showing

from Weekes is better suited for addressing confessions or statements that result from an

unlawful arrest or interrogation.

       The inevitable-discovery doctrine does not apply to statements obtained after an

unlawful search.3 The remaining issue is whether the admission of appellant’s statement

as substantive evidence was prejudicial.

                                                  C.

       In his first statement, when appellant was initially taken into custody by the police,

he denied stabbing the victim and stated that he had not seen the victim in months.

Appellant later admitted to stabbing the victim in his second statement, but argued at trial

that it was an accident. Both parties agree that the first statement was admissible for the

purpose of impeachment. The district court initially suppressed the first statement for



3
  This opinion, of course, does not change the fact that evidence derived from an illegal
statement is potentially admissible under the inevitable-discovery doctrine, just not the
statement itself. Nix, 467 U.S. at 437, 104 S. Ct. at 2506 (admitting physical evidence
derived from inadmissible statements).


                                             18
substantive purposes.    However, after appellant finished testifying, the district court

admitted it for purposes of impeachment and as substantive evidence.

       Appellant argues that the use of the first statement as substantive evidence was

prejudicial because it included several statements by appellant that he would “kick [the

victim’s] a--” if the victim came back to the house. Appellant argues that if the jury

believed those statements as to the truth of the matter stated—that appellant actually

intended to physically assault the victim—then the jury would be less likely to believe

that the stabbing was an accident. The state counters that the prior inconsistent statement

had no substantive value at all, but rather was only valuable for purposes of

impeachment: if appellant was seen as lacking credibility, then the jury would have been

less likely to believe that the stabbing was an accident.

       If appellant establishes a constitutional error by the trial court in admitting a

statement, we will still affirm if the erroneous admission of evidence was harmless

beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997). In

applying the harmless error test, we “look to the basis on which the jury rested its verdict

and determine what effect the error had on the actual verdict. If the verdict was surely

unattributable to the error, the error is harmless beyond a reasonable doubt.” Townsend

v. State, 646 N.W.2d 218, 223 (Minn. 2002) (citations and quotation omitted).            In

determining whether the verdict was surely unattributable to error, we consider the

following four factors: the “manner in which the evidence was presented, whether it was

highly persuasive, whether it was used in closing argument, and whether it was



                                             19
effectively countered by the defendant.” State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn.

2005). Overwhelming evidence of guilt is a very important factor, but we cannot focus

on evidence of guilt alone. Id.

       The four factors from Al-Naseer indicate that the erroneous admission of the

evidence for substantive purposes was prejudicial. First, the evidence was presented in a

prejudicial manner. The state played an audio recording of the entire statement for the

jury to hear, in addition to cross-examining appellant. The use of the audio statement

was overkill, giving the state the opportunity to reemphasize the earlier courtroom

interrogation of appellant. The state also played the nearly 20-minute tape at the end of

trial, meaning there was no chance that it “was lost among a plethora of other evidence.”

State v. Caulfield, 722 N.W.2d 304, 314 (Minn. 2006).

       Second, the first statement was highly persuasive as substantive evidence. The

issue at trial was intent. In the statement, appellant admitted to threatening the victim

months before the attack, stating that he would “kick the victim’s a--” if he came back. If

the jury believed that appellant intended to assault the victim if he returned, then the jury

would be less likely to believe appellant’s defense that the stabbing was an accident.

Moreover, the state relied wholly on circumstantial evidence to establish intent, mainly

arguing that the stabbing could not have been an accident given the depth of the wound.

The absence of direct evidence regarding intent makes the substantive value of the threats

highly persuasive.




                                             20
      Third, the state relied on the statement in its closing arguments. The state argued

that “[appellant] made good on his promise to [the victim]” to injure him, and that “[i]t’s

too bad [the victim] did not take that threat seriously.” The state did not mention any

other evidence regarding intent in its closing arguments, which further highlights the

critical importance of the statement to the state in countering appellant’s argument that

the stabbing was an accident.

      Finally, the statement was admitted as substantive evidence only after appellant’s

testimony. The admission came as a reversal of the district court’s own pre-trial ruling

that the statement was inadmissible for substantive purposes. Although appellant did

address the statement by claiming the stabbing was an accident, the late admission of the

statement as substantive evidence limited appellant’s ability to effectively counter it.

Additionally, given the dramatic and prejudicial manner in which the statement was

presented, appellant’s rebuttal was likely not effective. See State v. Wright, 726 N.W.2d

464, 478 (Minn. 2007) (stating that cross-examination and closing arguments were

insufficient counterweights).

      The state argues that the substantive use of the statement was not prejudicial

because   there   was   overwhelming     evidence    that   the   stabbing   was   not   an

accident: appellant’s roommates heard him yelling at the victim, appellant told his

roommates that he had stuck or stabbed the victim, appellant showed the bloody sword to

the roommates, the sword had a wet spot indicating it went in the victim’s chest, and

appellant never mentioned self-defense or an accident to the roommates. The state



                                            21
contends that based on this evidence, the verdict was surely unattributable to error. But

we do not focus on evidence of guilt alone. Townsend, 646 N.W.2d at 224; see also

Caulfield, 722 N.W.2d at 317 (stating that “we have found the error to be harmless only

where several factors weigh in that direction” and the harmless error conclusion was

reinforced by the strength of the evidence of guilt). Here, other factors indicate that the

error was not harmless beyond a reasonable doubt, and the strength of evidence is

therefore not controlling.

       The erroneous admission of appellant’s first statement was not harmless beyond a

reasonable doubt. Because appellant’s first statement made after the unlawful search was

inadmissible as substantive evidence and prejudiced appellant, appellant is entitled to a

new trial on remand.

                                            II.

       At the second omnibus hearing, the district court held that the warrant application

established probable cause after being sanitized of suppressed evidence.         Appellant

argues that any evidence obtained through the warrant was inadmissible because the

sanitized warrant application did not establish probable cause. Alternatively, appellant

argues that the district court never considered whether the police would have requested a

warrant without the illegal observations.

       While the exclusionary rule generally requires the suppression of evidence

acquired as a result of an unlawful search, the “Constitution does not require suppression

of evidence that was obtained through an independent source.” State v. Lieberg, 553



                                            22
N.W.2d 51, 55 (Minn. App. 1996). When a search warrant contains tainted evidence, the

district court must conduct a two-step analysis to determine if the independent source

doctrine applies. Id. The district court must determine if lawfully obtained evidence

contained in the warrant application establishes probable cause, and then determine if the

police would have applied for the warrant in the absence of the information generated by

the illegal search. Id.; see also Murray v. United States, 487 U.S. 533, 543, 108 S. Ct.

2529, 2536 (1988) (stating that the district court must determine whether the police

would have sought a warrant if they had not made an illegal entry). If the district court

does not undertake the second step, then a “reviewing court must remand for additional

findings.” Lieberg, 553 N.W.2d at 55.

       The first step requires the district court to determine if the sanitized warrant

application established probable cause. “An appellate court reviews a district court’s

decision to issue a warrant only to consider whether the issuing judge had a substantial

basis for concluding that probable cause existed.” State v. Rochefort, 631 N.W.2d 802,

804 (Minn. 2001). Probable cause determinations involve a “practical, common-sense

decision whether, given all the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). We consider whether

the information presented in the affidavits provided to support probable cause presents

“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).



                                             23
       The district court suppressed the information provided in paragraphs seven to

fourteen, but concluded that the other information in the warrant application established

probable cause.     Specifically, the district court found the following information

established probable cause to issue a warrant: (1) the police found a trail of blood on the

sidewalk leading up to 1027 East Third Street; (2) the victim identified the location of the

assault as 1027 East Third Street; (3) the victim alleged that he was stabbed in the chest

by Kyle (appellant’s first name); and (4) the victim had previously lived at the address

and still received mail there. The natural inference of the above facts is that evidence of

the crime, including a sword, would be found at the address. See State v. Brennan, 674

N.W.2d 200, 204 (Minn. App. 2004) (stating that the “issuing judge is entitled to draw

common-sense and reasonable inferences from the facts and circumstances”).              The

district court therefore had a substantial basis for concluding that probable cause existed.

See State v. Pierce, 358 N.W.2d 672, 674 (Minn. 1984) (relying on information that the

defendant had shot the victim to establish probable cause to search defendant’s house).

       The second step requires the district court to determine if the “police would have

sought a warrant even in the absence of the information generated by the unlawful

search.” Lieberg, 553 N.W.2d at 58. The district court never made a finding on the

second step, and, without a finding, appellant argues that remand is required. The state

counters that the district court made a ruling on the purpose of the officers’ entry during

the first omnibus hearing. At the first hearing, the district court held that “despite the

officers’ good intentions, there was not enough information to justify a warrantless entry”



                                            24
under the emergency-aid exception. In discussing the officers’ intentions for entering the

house, the district court was not addressing whether “the [police] would have sought a

warrant if they had not earlier entered.” Murray, 487 U.S. at 543, 108 S. Ct. at 2536.

The state’s argument that the district court made a finding on the second step is

unpersuasive.

      The state next argues that appellant was not prejudiced by the evidence seized

during the execution of the search warrant and remand is unnecessary. See Juarez, 572

N.W.2d at 291-92 (stating that even if an appellant demonstrates error by the district

court, a conviction will stand as long as the error was harmless beyond a reasonable

doubt). However, the sword was discovered during the execution of the search warrant

and it prejudiced appellant. Appellant’s defense was that he accidently stabbed the

victim when the victim lunged at him. To undermine the accident defense, the state

pointed to the depth of the wound. A crime scene investigator measured a “wet spot”

approximately five and a half inches long on the tip of the sword. The jury could have

relied on the testimony of the investigator and pictures of the sword to determine the

depth of the wound. Based on the depth of the wound, the jury could have concluded that

the stabbing was not an accident. In fact, the state made this argument during closing

remarks. Because the state relied on the sword to establish the depth of the wound and

challenge appellant’s defense, appellant was prejudiced.

      At the new trial, the district court must determine whether the police would have

sought a warrant if they had not made the illegal observations. See Lieberg, 553 N.W.2d



                                           25
at 58 (“If the trial court determines the police would have sought a warrant even in the

absence of the information generated by the unlawful search, [appellant’s] conviction will

stand.”). If the district court finds that the police would not have sought the warrant

without the illegal observations, then the evidence seized during the execution of the

search warrant should be suppressed in a new trial.

                                    DECISION

       Because the inevitable-discovery doctrine does not apply to statements, and

appellant was prejudiced by the admission of the statement as substantive evidence, we

reverse and remand for a new trial. The district court will also need to determine whether

the police would have sought a warrant even in the absence of the information acquired

in the earlier unlawful search.

       Reversed and remanded.




                                           26
ROSS, Judge (concurring specially)

       The people of Minnesota have entrusted us with the humbling authority necessary

to resolve their pressing conflicts. But their constitution gives us no more authority than

that. We must therefore do our duty, when exercising that authority, to overcome the

temptation to reach beyond the extant conflict just to pronounce some new rule of law. I

write separately because the majority too broadly decides this case, pronouncing a new

constitutional rule of law when clearly none is required. The majority broadly holds that

“[t]he inevitable-discovery exception to the exclusionary rule is limited to physical

evidence” and “does not apply to statements.” But neither our federal nor our state

supreme court has established this categorical rule, and the circumstances here do not

compel us to do so either. We should therefore judge only the conflict before us and leave

the constitutional rule-making for a future case that truly requires it.

       Superior courts have wisely and routinely emphasized the principle that I think is

overlooked today. Our state supreme court declares it repeatedly: “Our general practice is

to avoid a constitutional ruling if there is another basis on which a case can be decided.”

Erlandson v. Kiffmeyer, 659 N.W.2d 724, 732 n.7 (Minn. 2003). “It is well-settled law

that courts should not reach constitutional issues if matters can be resolved otherwise.” In

re Senty-Haugen, 583 N.W.2d 266, 270 n.3 (Minn. 1998). “This court does not decide

important constitutional questions unless it is necessary to do so in order to dispose of the

case.” State v. North Star Research & Dev. Inst., 294 Minn. 56, 81, 200 N.W.2d 410, 425

(1972). The point cannot be overstated; those declarations of judicial restraint, according



                                            CS-1
to the United States Supreme Court, should guide our approach to every question that

baits us to declare or modify a constitutional rule:

              If there is one doctrine more deeply rooted than any other in
              the process of constitutional adjudication, it is that we ought
              not to pass on questions of constitutionality unless such
              adjudication is unavoidable. It has long been the Court’s
              considered practice not to decide abstract, hypothetical or
              contingent questions or to decide any constitutional question
              in advance of the necessity for its decision or to formulate a
              rule of constitutional law broader than is required by the
              precise facts to which it is to be applied or to decide any
              constitutional question except with reference to the particular
              facts to which it is to be applied.

Rescue Army v. Mun. Ct. of Los Angeles, 331 U.S. 549, 570 n.34, 67 S. Ct. 1409, 1420

(1947) (quotations and citation omitted).

       I will not challenge substantively the majority’s new rule that the inevitable-

discovery doctrine never applies to any statement at any time under any circumstance. I

observe in passing, however, that the rule is not uniformly accepted in the federal courts.

See, e.g., United States v. Mohammed, 512 F. App’x 583, 589–90 (6th Cir. 2013)

(holding that the inevitable-discovery doctrine renders the defendant’s statements

admissible because he “would have been asked the same questions under substantially

similar circumstances” and would have made “materially similar” statements under either

the hypothetical lawful or actual unlawful police course). I instead write separately to

clarify that I disagree with the majority’s decision to declare a new constitutional rule

where we can, and therefore should, easily resolve the appeal on much narrower ground.

       Appellant Kyle McClain gives us that narrow ground. He argues that “the trial

court’s decision to admit [his] . . . statement was speculative, and application of the

                                            CS-2
inevitable discovery doctrine was therefore improper.” This simple argument persuades

me, and, according to the majority’s analysis, the argument also persuades the majority.

Because the actual circumstances of the unlawful police contact that led to the challenged

statement differ so substantially from the timing and circumstances of the hypothetical,

inevitable lawful police contact that would have occurred, one must indeed engage in

speculation to conclude that McClain would have said substantially the same thing had

police followed the lawful course.

       The majority rightly identifies the circumstances making this so, and it correctly

determines, “The extent to which [McClain’s] statement would have changed . . . is

unknowable.” And that should be the end of it. Put plainly, we should reverse simply

because the inevitable-discovery doctrine does not apply to speculative circumstances,

Nix v. Williams, 467 U.S. 431, 444 n.5, 104 S. Ct. 2501, 2509 (1984), and in this case one

would have to speculate to conclude that the circumstances of both the actual and the

hypothetical police contact with McClain would have yielded substantially the same

statement. Because caselaw informs us that the inevitable-discovery doctrine cannot

apply to the challenged statement in this case under these circumstances, we have no

occasion to pronounce a new, categorical constitutional rule that it can never apply to any

statement under any circumstances.

       We clearly do not need to decide the constitutional question to dispose of this

case. If we are going to step out ahead of the Supreme Court of the United States to

declare new constitutional law, we should wait until it is necessary to do so. The majority

decides much more than is necessary. I therefore concur only in the result.

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