State v. Harley Harlen Bishop, A18-0906

CourtCourt of Appeals of Minnesota
Writing for the CourtJohnson, Judge
PartiesState of Minnesota, Respondent, v. Harley Harlen Bishop, Appellant.
Decision Date11 February 2019
Docket NumberA18-0906

State of Minnesota, Respondent,
Harley Harlen Bishop, Appellant.



February 11, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Johnson, Judge

St. Louis County District Court
File No. 69HI-CR-16-496

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota, Jeffrey M. Vlatkovich, Assistant County Attorney, Hibbing, Minnesota (for respondent)

Patrick Dinneen, Silver Bay, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Tracy M. Smith, Judge.



After a court trial, the St. Louis County District Court found Harley Harlen Bishop guilty of four drug-related offenses. On appeal, Bishop challenges the district court's

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denial of his pre-trial motion to suppress evidence that was found in his home during the execution of a search warrant. He contends that the search warrant is invalid because it was issued based in part on information that a law-enforcement officer obtained in an unlawful warrantless search of his home. He also contends that the search warrant is invalid on the ground that the warrant application contained a misstatement of material fact. We conclude that there was no unlawful warrantless search of Bishop's home and that the misstatement in the warrant application did not concern a material fact. Therefore, we affirm.


In late 2015 and early 2016, buildings on a farm near the city of Nashwauk were burglarized three times. Numerous items were stolen, including taxidermic mounts of two animals: a pine marten1 and a goshawk.2 In early May 2016, the property owner's teenage grandson, who was involved in the burglaries, showed the property owner where the stolen items were being kept. The grandson indicated that the two mounted animals were at Bishop's home near the city of Hibbing. On May 19, 2016, the property owner reported the burglaries to the Chisholm Police Department (because most of the stolen items were

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believed to be at a home in Chisholm) and stated that he believed that the mounted animals were at Bishop's home in Hibbing.

Later that day, Officer Burns of the Hibbing Police Department went to Bishop's home to investigate. The front of Bishop's house faces west. A small exterior vestibule protrudes forward from the front of the house, with a screen door on its north side. The house has a front window that is close to the vestibule and at a right angle to the screen door to the vestibule so that a person standing in front of the screen door to the vestibule also would be standing in front of the front window.

When Officer Burns approached the front door of Bishop's home, he knocked and waited for a response. While waiting, he heard a barking dog and movement inside the home. He looked through the front window into Bishop's home. In doing so, he saw a mounted pine marten on a shelf along the back wall of the room inside the front window. Officer Burns then walked around the corner of the house to its north side, which has three windows. Officer Burns looked through the third window, which was nearest to the back of the house, and saw a man, who later was identified as Bishop, standing inside the home. Officer Burns asked Bishop whether he had any mounted animals in his home. Bishop stated that there were no mounted animals in his home. Officer Burns left Bishop's property and made an electronic record of his visit. He also contacted Investigator Johnson of the Itasca County Sheriff's Office, which was investigating the burglaries near Nashwauk, and told him what he saw at Bishop's home.

On June 22, 2016, Investigator Johnson, who previously had interviewed the owner of the mounted animals and his grandson, prepared an application for a warrant to search

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Bishop's house. In the warrant application, Investigator Johnson incorrectly stated that Officer Burns had contacted him on June 21, 2016, even though Officer Burns had actually contacted him on May 19, 2016. When officers executed the search warrant, they discovered a marijuana-growing operation in Bishop's basement. Officers then sought and obtained a second search warrant, which led to the discovery of cocaine, methamphetamine, marijuana, and methamphetamine paraphernalia.

The state charged Bishop with (1) fifth-degree controlled-substance crime by possessing cocaine, in violation of Minn. Stat. § 152.025, subd. 2(1) (2014); (2) fifth-degree controlled-substance crime by possessing methamphetamine, in violation of Minn. Stat. § 152.025, subd. 2(1); (3) fifth-degree controlled-substance crime by selling marijuana, in violation of Minn. Stat. § 152.025, subd. 1(1); and (4) storage of methamphetamine paraphernalia in the presence of a child, based on the fact that Bishop's then-16-year-old son lived in the home, in violation of Minn. Stat. § 152.137, subd. 2(a)(4) (2014).

In October 2017, Bishop moved to suppress the evidence found during the execution of the second search warrant on the ground that the first search warrant was invalid. At a contested omnibus hearing, Bishop testified and called his mother as a witness. The state presented the testimony of Officer Burns. In a post-hearing memorandum, Bishop argued that the first search warrant was not supported by probable cause on the grounds that the information obtained by Officer Burns during his May 19, 2016 visit to Bishop's home was stale and that Officer Burns obtained the information in an unlawful warrantless search. In February 2017, the district court filed an order denying Bishop's motion to

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suppress. Bishop retained substitute counsel, who brought a motion for reconsideration, which was denied.

Bishop waived his right to a jury trial and stipulated to the prosecution's evidence, and the parties agreed that the district court's ruling on the pre-trial suppression motion would be dispositive of the case. See Minn. R. Crim. P. 26.01, subd. 4. The district court found Bishop guilty on all counts. The district court stayed imposition of sentence. See Minn. Stat. § 609.135 (2014). Bishop appeals.


Bishop argues that the district court erred by denying his motion to suppress evidence, for two reasons.

A. Officer Burns's Observations at Bishop's Home

Bishop first argues that the district court erred by ruling that Officer Burns did not conduct an unlawful warrantless search of his home on May 19, 2016, when he looked through the front window and saw a mounted pine marten. The officer's observation of a mounted pine marten was mentioned in the application for the first search warrant, the execution of which led to the second search warrant, which led to the incriminating evidence underlying Bishop's convictions.

The Fourth Amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. As a general rule, a warrant is required before a law-enforcement officer may search a person's home. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984); State v. Morin, 736 N.W.2d 691, 695 (Minn. App. 2007),

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review denied (Minn. Sept. 18, 2007). Accordingly, a warrantless search of a person's home is "presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980). "A person's home is clearly a constitutionally protected area," and a search of a home occurs if "the government physically intrudes onto a constitutionally protected area." State v. Edstrom, 916 N.W.2d 512, 517 (Minn. 2018) (citing United States v. Jones, 565 U.S. 400, 406-07 n.3, 132 S. Ct. 945, 950 n.3 (2012)); see also State v. Chute, 908 N.W.2d 578, 583 (Minn. 2018). Thus, a search of a home occurs if an officer crosses the threshold of the doorway to a home and enters the home. Payton, 445 U.S. at 590, 100 S. Ct. at 1382.

A search of a home may occur even if an officer does not cross the threshold of the doorway and enter the home. "[A]n area outside the home may be considered 'part of the home itself' if it constitutes curtilage." Edstrom, 916 N.W.2d at 517 (citing Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984)). An officer conducts a search if the officer enters onto the curtilage of a home and conducts an investigation "'through an unlicensed physical intrusion.'" Chute, 908 N.W.2d at 585 (quoting Florida v. Jardines, 569 U.S. 1, 7, 133 S. Ct. 1409, 1415 (2013)). Whether the officer's physical intrusion is unlicensed depends on whether the property owner "had given the officer express or implied license to enter onto the curtilage." Id. A license to enter the curtilage of a home often is implied because "a person is typically invited to 'approach the home by the front path, knock promptly, wait briefly to be received and then (absent invitation to linger longer) leave.'" Id. at 586 (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at 1415).

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In Jardines, a detective walked onto the unenclosed front porch of a home with a drug-sniffing dog, who signaled that drugs were present inside the home. 569 U.S. at 4, 133 S. Ct. at 1413. Law-enforcement officers used that information to obtain a search warrant, the execution of which revealed marijuana inside the home. Id. The question on appeal was whether the detective conducted an unlawful warrantless search by using a drug-sniffing dog on the person's front porch. See id. at 5-6, 133 S. Ct. at 1414. The Supreme Court's analysis in Jardines, which Bishop cites and quotes extensively in his brief, is especially pertinent to this case, so we quote it extensively as well:

Since the officers' investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion. While law enforcement officers need not "shield

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