This opinion will be unpublished and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
                                     A14-2043

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Quentin Laurel Rasmussen,
                                       Appellant.

                                Filed November 30, 2015
                                Reversed and remanded
                                      Smith, Judge

                            Pennington County District Court
                                File No. 57-CR-13-826

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

Alan G. Rogalla, Pennington County Attorney, Stephen R. Moeller, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

       We reverse the district court’s denial of appellant’s motion to suppress because the

district court abused its discretion when it imposed a condition of pretrial release

allowing warrantless, suspicionless searches of appellant’s home.

                                         FACTS

       On September 23, 2013, appellant Quentin Laurel Rasmussen appeared before the

district court for a first appearance on charges of felony controlled-substance crime, gross

misdemeanor counterfeiting, and misdemeanor possession of drug paraphernalia. Before

the hearing, Rasmussen and his attorney reviewed the charges against Rasmussen,

discussed the maximum and minimum penalties, and reviewed some of the facts.

       Rasmussen had been released from custody before the hearing and appeared

voluntarily.   The prosecutor did not object to Rasmussen remaining released with

conditions. The district court then reviewed the conditions of release with Rasmussen,

notified him of his next court date, and stated that Rasmussen would be provided with a

copy of the conditional-release order. The district court did not set monetary bail as an

alternative to conditional release. The district court issued an order for unconditional or

conditional release, outlining the conditions of Rasmussen’s release.          One of the

conditions stated that, “Defendant is subject to random searches of his/her person,

possession, residence(s), and/or motor vehicle(s) by a peace officer or probation officer,

with or without probable cause, to ensure compliance with these conditions.”




                                             2
       Subsequently, just after midnight on October 25, 2013, officers from the Thief

River Falls Police Department arrived at Rasmussen’s apartment to perform a conditions

check. Before conducting the check, the officers confirmed that Rasmussen’s conditions

(including the home-search condition) were still in effect.       The officers observed

Rasmussen’s vehicle parked in the driveway and a light on in Rasmussen’s apartment.

As the officers approached Rasmussen’s apartment, Officer Scott Mekash heard a male

yell out, “the cops are coming for you, they are in the church parking lot,” or something

similar.

       Officer Vern Wittenberg proceeded to Rasmussen’s door and knocked, but nobody

answered. Officer Wittenberg heard people moving inside the apartment, so upon Officer

Mekash’s arrival, the officers tried the door and found that it was unlocked. Upon

opening the door, the officers noted three occupants, one of whom the officers recognized

as Rasmussen. The officers announced that they were there to perform a conditions

check. Officers Wittenberg and Mekash then patted down the other two individuals, and

Officer Wittenberg found a glass pipe and a small plastic bag containing “a small amount

of crystal substance.”

       At that point, other officers who were assisting with the conditions check searched

Rasmussen’s apartment. They notified Officer Mekash that they had found a small safe

in the kitchen and used a key lying on the counter to open the safe. Officer Mekash

proceeded to the safe and found 48 grams of methamphetamine, needles, two scales,

glass pipes, small bags and other drug paraphernalia, and a debit card issued to




                                            3
Rasmussen. Based on this discovery, Rasmussen was arrested and charged with first-

degree controlled-substance crime and contempt of court.

       Rasmussen moved to dismiss the charges and suppress evidence from the search.

On February 6, 2014, the district court heard Rasmussen’s motion to dismiss and

suppress. The district court denied Rasmussen’s motions to suppress and dismiss, finding

that Rasmussen consented to the conditions of release and that his consent to the

conditions validated the subsequent warrantless, suspicionless search of Rasmussen’s

apartment.

       On June 30, 2014, the parties submitted the case on stipulated evidence under

Minn. R. Crim. P. 26.01, subd. 4, to preserve the pretrial search issues for appeal. The

district court found Rasmussen guilty on the first-degree controlled-substance charge and

not guilty of contempt of court.

                                      DECISION

       Rasmussen argues that the district court erred in denying his motion to suppress

because the district court abused its discretion in setting the conditions of his pretrial

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

evidence, ‘we review the district court’s factual findings under a clearly erroneous

standard and the district court’s legal determinations de novo.’” State v. Gauster, 

 (Minn. 2008) (quoting State v. Jordan, 

 (Minn.

2007)). We review the district court’s setting of bail and pretrial release conditions for an

abuse of discretion.    See State v. Martin, 

 (Minn. 2008)

(analyzing pretrial release conditions for an abuse of discretion).


                                              4
       Rasmussen argues that the search condition was invalid because the district court

failed to follow Minn. R. Crim. P. 6.02. Before imposing conditions, the district court

must “determine[] that release [without conditions] will endanger the public safety or will

not reasonably assure the defendant’s appearance.” Minn. R. Crim. P. 6.02, subd. 1.

And, in setting pretrial release conditions, rule 6.02 states that the district court “must

consider” a list of 13 factors.1 Minn. R. Crim. P. 6.02, subd. 2. In sum, a district court

cannot impose conditions of release “based on its standard practice”; rather, the district

court must “consider[] the particular facts before it.” Martin, 

.

       The transcript from Rasmussen’s first appearance reveals the extent of the

conditional-release discussion:

              THE COURT: I will set the pretrial then for October 10,
              2013, at 1:30. Then we need to talk about conditions of
              release.
              ....
              [THE STATE]: I would ask that standard conditions of
              release apply. That he notify his attorney of his whereabouts,
              of his address, that he make all future court appearances.
              That he remain law abiding. Because we do have an
              allegation here of a controlled substance crime, we would ask
              for the [c]ourt to impose a condition prohibiting the use or
              possession of any nonprescribed controlled substances
              including street drugs and nonprescribed medication. No use
              or possession of alcohol and . . . a condition that
              Mr. Rasmussen be subject to random searches and spot
              testing to make sure that he is in compliance with those
              conditions.

1
  Those factors are: (1) the nature and circumstances of the offense charged; (2) the
weight of the evidence; (3) family ties; (4) employment; (5) financial resources;
(6) character and mental condition; (7) length of residence in the community; (8) criminal
convictions; (9) prior history of appearing in court; (10) prior flight to avoid prosecution;
(11) the victim’s safety; (12) any other person’s safety; and (13) the community’s safety.
Minn. R. Crim. P. 6.02, subd. 2.

                                             5
              THE COURT: Mr. [Defense Counsel].
              [DEFENSE COUNSEL]: Mr. Rasmussen has heard the
              request for conditions of release and they are acceptable to
              Mr. Rasmussen.
              THE COURT: All right. Mr. Rasmussen, I will release you
              on your own recognizance, but you are subject to these
              conditions. . . . You are subject to random testing and
              searches to make sure you comply [with the other
              conditions]. . . . And I will give you a copy of the order that
              I’ve just completed.

       The district court abused its discretion in setting the conditions of Rasmussen’s

release. As an initial matter, there is no indication that the district court found the

conditions necessary to protect public safety or ensure the defendant’s appearance. See

Minn. R. Crim. P. 6.02, subd. 1 (stating that before conditions can be imposed, the

district court must find that conditionless release “will endanger the public safety or will

not reasonably assure the defendant’s appearance”). Furthermore, in using the presence

of a controlled-substance crime as the basis for imposing conditions, the district court

engaged in the very practice prohibited by Martin because “[s]uch a blanket policy is

inconsistent with [r]ule 6.02.” See Martin, 

. Additionally, there is no

indication that the district court considered the factors listed in rule 6.02, subdivision 2,

before setting the terms of Rasmussen’s release. Although we are not requiring, as the

state contends, “a specific incantation” in setting conditions of release, the district court

should be mindful of what rule 6.02 requires, and that is a consideration of the 13 factors

enumerated therein. See Minn. R. Crim. P. 6.02, subd. 2. Consequently, we find that the

district court abused its discretion in setting the conditions of Rasmussen’s release “based

on its standard practice.” See Martin, 

.



                                             6
       We make two additional observations.          First, as an alternative to conditional

release, the district court did not offer Rasmussen conditionless money bail as rule 6.02

requires. See Minn. R. Crim. P. 6.02, subd. 1 (“The [district] court must set money bail

without other conditions on which the defendant may be released by posting cash or

sureties.”); State v. McMains, 

 (Minn. App. 2001) (“The district

court erred in refusing to set monetary bail upon which appellant can obtain pretrial

release without complying with nonmonetary conditions.”). Second, we find problematic

the district court’s use of a preprinted conditional-release form. Use of such a form,

especially one containing warrantless, suspicionless search conditions, makes it difficult

to determine whether release conditions are being set based on the specific facts before

the district court as Martin requires. See 

.

       Rasmussen also argues that the condition allowing for warrantless, suspicionless

searches of his apartment is unconstitutional.          “It is a basic principle of Fourth

Amendment law that searches and seizures inside a home without a warrant are

presumptively unreasonable.” Payton v. New York, 

, 

 (1980) (quotation marks omitted).             And, even warrantless searches must

“[o]rdinarily . . . be based upon probable cause to believe that a violation of the law has

occurred.”   New Jersey v. T.L.O., 

, 

 (1985)

(quotation marks omitted). Because we have determined that the district court abused its

discretion in setting the conditions of Rasmussen’s release, we do not reach the Fourth

Amendment issue of whether a warrantless search of a pretrial releasee’s home is

permissible, and if it is, what level of suspicion is necessary to justify a search.


                                               7
       We conclude that the district court abused its discretion in setting the conditions of

Rasmussen’s release, so the search of Rasmussen’s home based on one of those

conditions was invalid. Therefore, the district court erred when it denied Rasmussen’s

motion to suppress the evidence obtained in that search. See In re Welfare of B.R.K., 

 (Minn. 2003). (“All evidence obtained by illegal searches is

inadmissible in court and the fruits . . . must be suppressed.”).

       Reversed and remanded.




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