Opinion
A22-1294
02-27-2023
State of Minnesota, Respondent, v. Robert John Virnig, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Brian Middendorf, Morrison County Attorney, Michel P. Chisum, Elizabeth M.H. Ziebarth, Assistant County Attorneys, Little Falls, Minnesota (for respondent) Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant) Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch, Judge.
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Morrison County District Court File No. 49-CR-20-540
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Brian Middendorf, Morrison County Attorney, Michel P. Chisum, Elizabeth M.H. Ziebarth, Assistant County Attorneys, Little Falls, Minnesota (for respondent)
Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant) Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch, Judge.
LARKIN, JUDGE
Appellant challenges his conviction for first-degree possession of a controlled substance, arguing that the district court erred by denying his motion to suppress the drug evidence. Appellant also challenges his sentence, arguing that the district court abused its discretion by denying his motion for a downward dispositional departure. We affirm.
FACTS
In April 2020, respondent State of Minnesota charged appellant Robert John Virnig with first-degree possession of a controlled substance after executing a search warrant at his residence and recovering a large amount of methamphetamine. In obtaining the search warrant, law enforcement relied on information provided by a "concerned citizen" who was ultimately identified as Virnig's estranged wife, MV. The information that MV provided included a picture of Virnig "asleep behind a desk in his residence" near "plastic baggies" containing a substance that "appeared to be methamphetamine."
Virnig moved to suppress evidence recovered during the search. He argued that MV acted as a government agent and relayed information to law enforcement in violation of his constitutional rights. He focused his arguments on the picture that MV provided to law enforcement. He claimed that the search warrant relied on that photograph, that the photograph was improperly obtained, and that without it, the search warrant did not establish probable cause for the search.
In September 2021, the district court held a hearing on Virnig's motion to suppress. Virnig introduced into evidence text messages between MV and law enforcement and a transcript of an interview that law enforcement conducted with MV in February 2020.
MV testified regarding her involvement with law enforcement, including meetings with them in July 2019 and February 2020. During those meetings, law enforcement asked MV to conduct a "controlled buy" and offered her money and protection, but MV declined. MV testified that at the February 2020 meeting, officers asked her for "pictures of pipes or drugs or paraphernalia or anything like that," and that she told them that she did not have access to "that stuff" because it was locked in Virnig's shop. Law enforcement also requested that MV provide information regarding individuals who came and went from Virnig's property. MV began providing pictures and information regarding individuals who visited Virnig's residence.
On April 24, 2020, MV sent law enforcement a picture of Virnig asleep at his desk "with drugs around him." She took the photo at around 4:00 a.m., "[i]n the shop in his office." She was able to gain entry because the door was unlocked. She snuck into the shop because Virnig had previously told her to leave the house. MV immediately sent the picture to law enforcement "[b]ecause that's what they told [her] that they wanted." When asked on cross-examination if law enforcement ever instructed her to "do a specific act on a specific time," MV responded: "They said . . . anytime [you] can get into the back . . . take pictures of this stuff because that's what [we] . . . need[] ...." MV conceded that law enforcement did not instruct her to go to Virnig's house on a specific day.
MV and Virnig resided at separate locations.
Investigator Casey King testified that he and another officer met with MV in July 2019. At that meeting MV was not given specific tasks to perform or promised any payment. King testified that MV texted him pictures of individuals she believed were involved in narcotics activity, but that he did not request those photos. King asked MV to be a confidential informant, and she declined.
King testified that at the meeting in February 2020, an officer requested a description of the interior of Virnig's house and law enforcement once again asked MV to act as a confidential informant. MV once again declined. King testified that he asked MV to contact him if Virnig was "ever going to pick up drugs," and one of the officers told MV to take pictures of any drugs or paraphernalia in Virnig's possession and to send the pictures to King. King testified that he did not control MV's actions, give her a timeline, supply her with equipment, provide her with specific instructions, or ask that she contact him before taking any actions. King testified that every few days, MV would send him a text or photograph.
King testified that on April 24, 2020, at around 4:00 or 4:30 a.m., MV texted him a picture of Virnig sitting in a chair in his office with methamphetamine in front of him. MV's text said: "Woke up and [Virnig] wasn't in bed. I found him in the back office sleeping in a chair and something else you might want to see." King testified that he was not aware of MV's actions prior to the text message and that he did not direct her actions or ask her to take the photo.
The district court denied Virnig's motion to suppress. The charge was tried to the district court, and the court found Virnig guilty as charged.
Virnig underwent a presentence investigation (PSI), and the PSI recommended a 105-month prison sentence under the sentencing guidelines, which called for a presumptive sentencing range of 90 to 126 months. Virnig moved for a dispositional sentencing departure, arguing that he was particularly amenable to probation. The district court denied Virnig's motion and sentenced him to serve 105 months in prison. Virnig appeals.
DECISION
I.
Virnig contends that the district court erred in denying his motion to suppress. When reviewing a district court's pretrial order on a motion to suppress evidence, we review the district court's factual findings for clear error and its legal determinations de novo. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
The United States and Minnesota Constitutions prohibit unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. These constitutional protections act "as a restraint upon the activities of the government." State v. Buswell, 460 N.W.2d 614, 617 (Minn. 1990) (emphasis added). Thus, an unreasonable search by a nongovernmental actor, a private search, will not result in evidence being suppressed because there is no constitutional violation. Id. at 617-18.
Virnig does not assert that the Minnesota Constitution provides additional protections in this case, and we therefore apply Fourth Amendment caselaw.
"However, the mere fact that a private individual made the search and seized the contraband does not always isolate his or her conduct from Fourth Amendment scrutiny." Id. at 618. "If, in the light of all the circumstances of the case the private individual must be regarded as having acted as an instrument or agent of the state when conducting the search, the search is subject to Fourth Amendment constraints." Id. (quotations omitted). "The determination of whether the private person acted as an agent of the state is one of fact to be decided on a case-by-case basis after consideration of all the facts and circumstances relative to the search." Id.
"Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government's participation in the private party's activities." Id. (quotation omitted). Relevant factors include "(1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party's own ends." Id.; see also State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003) (applying two-factor test). Ultimately, however, "the diversity in factual settings involving private searches mandates an individual case-by-case analysis in which precedent plays but a small part" and the "final determination of whether the government's involvement was such as to transform a private search into a governmental search subject to the constraints of the Fourth Amendment is a question of fact to be resolved by the [district] court." Buswell, 460 N.W.2d at 618. We will not disturb the district court's findings on the issue unless they are clearly erroneous. Id. "A factual determination is clearly erroneous if it is unsupported by the record." State v. Heath, 685 N.W.2d 48, 61 (Minn.App. 2004), rev. denied (Minn. Nov. 16, 2004).
In denying Virnig's motion to suppress, the district court found that MV had not acted as a government agent, reasoning that law enforcement did not know of, participate in, or acquiesce to MV's search of Virnig's residence. The court found that MV "took the picture on her own volition" and sent it to law enforcement, "who had no idea she was at the house, or what she was doing." Virnig challenges that finding, arguing that the government knew of and acquiesced in the April 24 picture that MV took of Virnig and sent to law enforcement. He notes that law enforcement maintained regular contact with MV and asked her to take pictures of drugs or paraphernalia and to send those pictures to law enforcement. He therefore asserts that officers took steps to persuade MV to conduct searches in a particular manner and encouraged her to search for particular items.
The district court acknowledged that law enforcement had been seeking MV's assistance since July 2019. The district court further acknowledged that at the meeting on February 5, 2020, law enforcement made "specific requests for information." But the district court found that law enforcement's request for MV to provide pictures of drugs was made 79 days prior to the April 24 picture in question and was "plainly antecedent" because law enforcement did not instruct MV to conduct the search on April 24 and did not participate in planning that search. Essentially, the district court found that law enforcement did not influence on the particular search in question.
The record shows that on February 5, 2020, law enforcement requested that MV take pictures of any drugs or paraphernalia in Virnig's possession. However, given that the police did not ask or instruct MV to take the photo on April 24, the district court did not clearly err in finding that MV was not acting as a government agent at that time. The district court applied the relevant law and based its decision on the specific circumstances surrounding the search at issue.
Moreover, caselaw supports the district court's finding. In Buswell, the Minnesota Supreme Court found that a prior meeting between law enforcement and the private citizen who conducted the search at issue amounted only to antecedent contact because, even though law enforcement and the private citizen discussed arrest procedures, the meeting did not indicate that law enforcement knew of or encouraged the specific searches in question. 460 N.W.2d at 619 ("[T]he record [is] devoid of evidence that law enforcement officials were aware of or encouraged the specific searches in question.") (emphasis added)).
In sum, given the record evidence that law enforcement was not involved in the specific search at issue here, the district court did not clearly err in finding that MV was not acting as a government agent when she photographed Virnig sleeping next to methamphetamine and sent the picture to law enforcement. "If the government does not know of and acquiesce in the search, the search cannot be attributed to the government and the inquiry ends." Jorgensen, 660 N.W.2d at 131. We therefore affirm the district court's denial of Virnig's motion to suppress.
II.
Virnig contends that the district court abused its discretion by denying his motion for a downward dispositional departure because he established that he is particularly amenable to probation.
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal offenses and seek to "maintain uniformity, proportionality, rationality, and predictability in sentencing." Minn. Stat. § 244.09, subd. 5 (2022). "Consequently, departures from the guidelines are discouraged and are intended to apply to a small number of cases." State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). A district court may depart from the presumptive sentence only when there are "identifiable, substantial, and compelling circumstances to support a departure." Minn. Sent'g Guidelines 2.D.1 (2019).
When substantial and compelling circumstances exist, the district court has broad discretion to depart, and we generally will not interfere with the exercise of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This court will reverse the district court's refusal to depart from the presumptive sentence only in a "rare" case. Id. We will not reverse the district court's refusal to depart "as long as the record shows the [district] court carefully evaluated all the testimony and information presented before making a determination." State v. Pegel, 795 N.W.2d 251, 255 (Minn.App. 2011) (quotation omitted).
When considering a dispositional departure, the district court focuses "more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society." State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). A defendant's particular amenability to probation can justify downward dispositional departure from a presumptive sentence. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). The requirement of particular amenability ensures that "the defendant's amenability to probation distinguishes the defendant from most others and truly presents the substantial and compelling circumstances that are necessary to justify a departure." Id. at 309 (quotation omitted).
Relevant factors for determining whether the defendant is particularly amenable to probation include the defendant's age, prior criminal record, remorse, cooperation, attitude in court, and support of friends and family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Even if there is evidence that the defendant would be particularly amenable to probation, a district court is not required to impose a downward dispositional departure. State v. Olson, 765 N.W.2d 662, 664-65 (Minn.App. 2009).
Virnig notes that at the time of sentencing he "was enrolled in a long-term treatment program," he "had completed six of fourteen months of that program," and "all signs pointed towards his successful completion of that program." Virnig also notes that he participated in choir, attended church twice weekly, took educational classes, completed community service, and has strong family support. Virnig acknowledges that he has three prior felony convictions, but he argues that only one of those was a drug offense, which occurred in 2004.
The district court considered the arguments of the parties and all of the information presented and ultimately concluded that Virnig was not particularly amenable to probation. The district court noted that Virnig's tenure in treatment had "been relatively brief as compared to an extremely extensive decade's long addiction and involvement with illicit narcotics." The district court discussed Virnig's prior convictions, including a "prior first-degree sale conviction," and questioned whether Virnig's success in treatment would continue "given his history." The district court reasonably concluded that a departure was not warranted. This is not a "rare" case in which the district court abused its discretion by imposing a presumptive sentence. We therefore affirm Virnig's sentence.
Affirmed.