This opinion is nonprecedential except as provided by

Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA

IN COURT OF APPEALS

A23-0693

State of Minnesota,

Respondent,

vs.

Justin Thomas Keodouangdy,

Appellant.

Filed April 1, 2024

Affirmed

Wheelock, Judge

Jackson County District Court

File No. 32-CR-22-14

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul, 

Minnesota; and

Kristi Meyeraan, Jackson County Attorney, Jackson, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Schmidt, Judge; and Reilly, 

Judge.

*

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION

WHEELOCK, Judge

Following a jury trial, appellant was convicted of unlawful possession of a firearm 

in violation of Minn. Stat. § 624.713, subd. 1(2) (2020). Appellant challenges his 

conviction on two grounds: (1) the district court erred by not suppressing evidence obtained 

through the search warrant because the search warrant was not supported by probable cause

and (2) the circumstantial evidence was insufficient to prove that he constructively

possessed the firearm. We affirm.

FACTS

On December 18, 2020, A.K., an investigator for Jackson County, applied for a 

search warrant to search a residence in the City of Jackson for evidence of possession or 

sale of narcotics by appellant Justin Thomas Keodouangdy. The residence was owned by 

M.S., and A.K. believed Keodouangdy had been residing there. A.K. provided the 

following information in the search-warrant application: 

• In June 2020, Wyoming state law enforcement recovered 14.9 

ounces of methamphetamine and 13.7 pounds of THC liquid 

from Keodouangdy’s vehicle during a traffic stop. 

• In September 2020, Martin County law enforcement recovered 

approximately one ounce of methamphetamine during the 

execution of a search warrant at “one of [Keodouangdy’s] 

residences” in Dunnell.

• In early December 2020, an informant who was in custody at 

the Jackson County Jail told A.K. that a person named “JT,”

which are Keodouangdy’s initials, was selling 

methamphetamine to another person known to the Jackson 

County Sheriff’s Office to be a drug user or dealer. The 
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informant provided the name of the street in Jackson where 

“JT” resided.

• Another member of law enforcement told A.K. that 

Keodouangdy was residing at an address on the same street in 

Jackson that the informant identified. 

• In December 2020, Freeborn County law enforcement 

recovered approximately three-quarters of a pound of 

methamphetamine during the execution of a search warrant in

a vehicle that had been crashed and abandoned on Interstate 

90. The Freeborn County officers also found documents with 

Keodouangdy’s name on them inside the vehicle. 

• In December 2020, a Jackson County deputy collected three 

bags of trash from outside the residence in Jackson. A.K.

inspected the trash and found five plastic sandwich bags 

containing marijuana residue, one plastic Ziploc sandwich bag 

with a purple and green seal containing methamphetamine 

residue, and a bill addressed to M.S. 

• A.K. reviewed photographs of evidence collected from the 

abandoned vehicle in Freeborn County and found that the 

Freeborn County officers had also recovered a Ziploc 

sandwich bag with a purple and green seal containing 

methamphetamine. 

• In 2016, Keodouangdy was convicted of two 

controlled-substance-possession offenses, one first degree and 

one fifth degree. 

• Keodouangdy recently had been released from his 115-month 

prison sentence for his 2016 conviction, and in A.K.’s training 

and experience, individuals who are recently released from 

incarceration tend to use multiple residences when they are 

unable to secure stable housing. 

The district court granted the search warrant, and a team of officers that included

A.K. and a second investigator, T.M., executed the warrant on December 21, 2020. When 

the officers knocked and announced their presence, M.S. answered, and officers escorted 
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him outside. T.M. then checked all of the rooms to see if anyone else was inside. The 

doorknob to the southeast bedroom was locked when T.M. first tried to enter, but T.M. 

pushed the door open without much force. Just inside the bedroom was a dresser with a 

flat-screen television facing away from the door, and beyond the dresser was a bed next to 

the wall. T.M. found Keodouangdy sleeping on top of the bed next to a laundry basket and 

other items. T.M. attempted to wake Keodouangdy, which took some time, and after 

Keodouangdy awoke, T.M. escorted him out of the residence. 

After determining that no one else was inside the residence, T.M. took photographs 

to document the state of the residence before officers began the search. On the bed where 

Keodouangdy had been sleeping, T.M. found and photographed a cell phone and a wallet 

that contained Keodouangdy’s driver’s license, identification card, and bank card, and A.K. 

found a firearm with the serial number scrubbed off and ammunition in the magazine. On 

the dresser, T.M. found and photographed an “employment portfolio” with Keodouangdy’s 

name on the cover and a piece of mail addressed to Keodouangdy and bearing an address 

for a different house in Jackson. Neither officer found items in the bedroom that appeared 

to belong to anyone except Keodouangdy. 

Respondent State of Minnesota charged Keodouangdy with unlawful possession of 

a firearm in violation of Minn. Stat. § 624.713, subd. 1(2). 

Keodouangdy requested a contested omnibus hearing to challenge probable cause 

as to his constructive possession of the firearm and as to “the execution of the search 

warrant,” but he did not file a written motion explaining the grounds for his challenges. At 

the beginning of the contested omnibus hearing, Keodouangdy’s attorney described the 
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two issues as follows: “One is probable cause of the warrant or the basis of the warrant and 

the second one is constructive possession of the gun in question.” The state first called the 

officer who pulled the trash bags from M.S.’s residence. Keodouangdy’s attorney did not 

question that officer. The state also called A.K., who testified about the search warrant and 

the search. Keodouangdy’s attorney questioned A.K. about (1) finding the firearm on the 

bed, including how he found it, what else was on the bed, whether he moved the firearm 

before it was photographed, and whether he wore gloves; (2) whether the firearm or any 

other items were fingerprinted or DNA tested; (3) whether A.K. identified anything else 

found during the search of the residence as belonging to Keodouangdy rather than M.S.; 

(4) whether, on the date of the search, officers knew how long Keodouangdy had been 

staying at the residence; and (5) whether A.K. knew that the charges that arose out of the 

traffic stop in Wyoming had been dismissed sometime after A.K. executed the search 

warrant.

Keodouangdy did not present argument on his challenges at the hearing and instead 

submitted a written memorandum of law. Keodouangdy styled his motion as a motion to 

dismiss the charge and argued that the state lacked sufficient evidence to prove that he

constructively possessed the firearm, but he did not challenge probable cause for the search 

warrant and did not argue that any evidence should be suppressed. The state’s written 

response noted that Keodouangdy did not make any argument supporting his challenge to 

probable cause for the search warrant in his memorandum, and thus, the state did not make 

any responsive arguments about probable cause for the warrant, instead relying on the 

evidence submitted at the omnibus hearing. 
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The district court denied Keodouangdy’s motion. The district court first determined

that Keodouangdy’s motion was “a motion to dismiss on the basis that (1) there was no 

probable cause for the search warrant and (2) there is no probable cause that Keodouangdy 

was in constructive possession of the pistol.” The district court noted that “Keodouangdy 

did not specifically challenge anything in regard to the search warrant at the hearing nor 

did he challenge anything in his subsequent written closing argument.” It then determined 

that probable cause existed for the warrant because the warrant application stated that 

officers found Ziploc bags containing marijuana and methamphetamine residue in the trash

outside the residence, Keodouangdy had been staying at the residence, and Keodouangdy 

had recent connections with drug activity. It issued an order stating, “Keodouangdy’s 

Motion to suppress all evidence obtained as a result of the search warrant is DENIED.” 

The case proceeded to a jury trial. The parties stipulated that Keodouangdy was 

ineligible to possess a firearm. Thus, the only issue for the jury was whether Keodouangdy 

constructively possessed the firearm. The jury found Keodouangdy guilty. 

Keodouangdy appeals.

DECISION

Keodouangdy argues first that, because the search warrant was not supported by 

probable cause, the evidence should have been suppressed and second that the evidence 

was insufficient to prove his constructive possession of the firearm. The state contends

that Keodouangdy forfeited his argument for suppression of evidence by not making it to

the district court and, alternatively, that probable cause for the search warrant exists under 

the totality of the circumstances. The state also argues that the evidence was sufficient to 
7

support Keodouangdy’s conviction under both the direct- and circumstantial-evidence 

standards of review. We address these arguments in turn. 

I. The district court did not err by not suppressing evidence because probable 

cause existed to support the search warrant.

Keodouangdy asserts that the district court erred by not suppressing evidence that 

officers discovered during the search of M.S.’s residence because the search warrant was 

invalid for lack of probable cause. He makes five arguments to dispute that probable cause 

existed for the search warrant: (1) the warrant application contained inadequate 

information to enable the district court to assess the credibility of the informant; (2) the 

results of the trash search did not provide a sufficient nexus between the alleged crime and 

the place to be searched; (3) the issuing judge should not have considered the evidence 

seized during the traffic stop in Wyoming because that evidence was suppressed in the 

Wyoming case; (4) the issuing judge should not have considered Keodouangdy’s prior

convictions because they were stale and attenuated; and (5) the information about the 

evidence seized by Freeborn County law enforcement was vague, uncertain, and 

unconnected to Keodouangdy dealing drugs out of M.S.’s residence in Jackson County. 

The state argues that Keodouangdy forfeited his challenge to probable cause by not raising 

these specific challenges to the district court and, alternatively, that the district court did 

not err by not suppressing the evidence because the search warrant was supported by 

probable cause under the totality of the circumstances. 

We begin by addressing the state’s forfeiture argument. A constitutional challenge 

to the admission of evidence is untimely if it is not raised at the omnibus hearing in a 
8

pretrial motion to suppress. State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 

2000). Minnesota Rule of Criminal Procedure 10.01, subdivision 2, states:

Defenses, objections, issues, or requests that can be 

determined without trial on the merits must be made before 

trial by a motion to dismiss or to grant appropriate relief. The 

motion must include all defenses, objections, issues, and 

requests then available. Failure to include any of them in the 

motion constitutes waiver . . . .

The court can grant relief from the waiver for good 

cause.

Minnesota Rule of Criminal Procedure 10.03, subdivision 1, states that “motions 

must be made in writing and served upon opposing counsel no later than three days before 

the Omnibus Hearing unless the court for good cause permits the motion to be made and 

served later.” An untimely challenge is forfeited, and we will not consider it unless it 

would “perpetuate a substantial and essential injustice in the sense that . . . an innocent 

[person] may have been convicted.” State ex rel. Rasmussen v. Tahash, 141 N.W.2d 3, 11 

(Minn. 1965); accord State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996). 

Moreover, a motion to suppress “should specify, with as much particularity as is 

reasonable under the circumstances, the grounds advanced for suppression in order to give 

the state as much advance notice as possible as to the contentions it must be prepared to 

meet at the hearing.” State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992). In Needham, 

we recognized that in practice, the precise grounds for suppression are not always clear at 

the outset of the contested omnibus hearing but rather become clear during the questioning 

of the witnesses. See id. But if a defendant does not raise their precise challenges in a 
9

motion to suppress or at the omnibus hearing and instead raises them for the first time on 

appeal, those precise arguments are forfeited. See Lieberg, 553 N.W.2d at 56. 

Here, Keodouangdy challenged probable cause for the warrant generally but did not 

raise, at the omnibus hearing or in his written memorandum, any of the specific challenges 

to the information in the warrant application that he now raises on appeal. And the 

Wyoming traffic stop was the only information in the search-warrant application about 

which Keodouangdy questioned A.K. during the contested omnibus hearing—he did not 

question A.K. about the informant, Keodouangdy’s prior convictions, the nexus established 

by the trash search, or the evidence Freeborn County law enforcement seized. We agree 

that Keodouangdy’s failure to assert these challenges forfeited them.

But even if we concluded that Keodouangdy did not forfeit any of the particular 

grounds that he raises on appeal, we agree with the district court that the warrant was 

supported by probable cause. 

The United States and Minnesota Constitutions provide that no warrant shall issue 

without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10; see 

Minn. Stat. § 626.08 (2020) (“A search warrant cannot be issued but upon probable 

cause . . . .”). When determining whether a search warrant is supported by probable cause, 

we give great deference to the issuing judge’s determination of probable cause and do not 

conduct a de novo review. State v. Holiday, 749 N.W.2d 833, 839 (Minn. App. 2008). We 

limit our review “to ensuring that the issuing judge had a substantial basis for concluding 

that probable cause existed,” applying a totality-of-the-circumstances test. State v. 
10

McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), rev. denied (Minn. Feb. 22, 2006). 

Under the totality-of-the-circumstances test, 

[t]he task of the issuing [judge] is simply to make a 

practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including 

the “veracity” and “basis of knowledge” of persons supplying 

hearsay information, there is a fair probability that contraband 

or evidence of a crime will be found in a particular place.

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). We review the components of a 

search-warrant affidavit in combination rather than in isolation, and “doubtful or marginal 

cases” are resolved in favor of the preference for search warrants. Holiday, 749 N.W.2d 

at 839-40 (quotation omitted). A search-warrant application is facially sufficient to support 

a finding of probable cause if it “suppl[ies] specific facts to establish a direct connection, 

or nexus, between the crime alleged and the place to be searched, particularly in cases 

involving the search of a residence for evidence of drug activity.” McGrath, 706 N.W.2d 

at 539 (quotation omitted). 

Here, the district court determined that there was probable cause for the search 

warrant because the warrant application stated that officers found Ziploc bags containing 

marijuana and methamphetamine residue in the trash outside M.S.’s residence and included 

information indicating that Keodouangdy had been staying at the residence and had recent 

connections with drug activity. Furthermore, the facts stated in the search warrant connect 

the evidence to be seized to the place to be searched, and they connect both the evidence 

and the place to Keodouangdy. There is no information in the record indicating that any 

of the facts in the application were unreliable. Even if the issuing judge should not have 
11

considered the information about the evidence seized in the Wyoming traffic stop—the 

only challenge Keodouangdy arguably preserved—the totality of the circumstances 

provided a substantial basis for the district court to find probable cause for the search 

warrant. We thus conclude that the issuing judge had a substantial basis to conclude that 

probable cause existed, and the district court did not err by admitting the evidence seized 

as a result of the search warrant. 

II. The evidence was sufficient to prove that Keodouangdy constructively 

possessed the firearm.

Keodouangdy argues that the state failed to present sufficient evidence to prove 

beyond a reasonable doubt that he constructively possessed the firearm because (1) the 

state did not present direct evidence of possession and (2) the circumstantial evidence is 

consistent with at least one reasonable hypothesis other than guilt. The state argues that it 

proved that Keodouangdy had exclusive control over the bedroom through direct evidence

and that the direct-evidence standard of review applies. In the alternative, the state argues 

that, even if the circumstantial-evidence standard of review applies, the circumstances 

proved are sufficient to establish that Keodouangdy exercised dominion and control over 

the firearm.

“Possession may be proved through evidence of actual or constructive possession.” 

State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). Actual possession requires proof that 

the defendant physically possessed the contraband on their person at the time of arrest; 

conversely,

[t]he purpose of the constructive-possession doctrine is to 

include within the possession statute those cases where the 
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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 [contraband] and did not 

abandon his possessory interest in the [contraband] but rather 

continued to exercise dominion and control over it.

State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975). Constructive possession may be 

proved by showing that the contraband was found “in a place under defendant’s exclusive 

control to which other people did not normally have access.” Id. at 611. But if the 

contraband was found “in a place to which others had access,” the state must prove that 

“there is a strong probability (inferable from other evidence) that defendant was at the time 

consciously exercising dominion and control over [the contraband].” Id. Mere proximity 

or ease of access to a firearm is insufficient; rather, “the State must prove that the defendant 

had an ability and intent to exercise dominion and control over the firearm.” Harris, 

895 N.W.2d at 602. 

When evaluating the sufficiency of direct evidence, “we conduct 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.” Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) (quotation 

omitted). But when evaluating the sufficiency of circumstantial evidence, we apply a

heightened two-step review. Id. Here, we need not resolve the issue of which standard 

applies because, even under the heightened circumstantial-evidence standard, we are 

persuaded that the evidence was sufficient to support Keodouangdy’s conviction. See State 

v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013) (declining to resolve which standard of 

review applied because the evidence was sufficient under either standard). 
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Under the circumstantial-evidence standard, we begin by identifying the 

circumstances proved at trial, viewing conflicting evidence in the light most favorable to 

the verdict. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010). Then, we 

independently examine the reasonable inferences that may be drawn from those 

circumstances to determine whether they are consistent with guilt and inconsistent with 

any rational hypothesis other than guilt. Silvernail, 831 N.W.2d at 599. In doing so, we 

review the evidence as a whole and do not defer to the fact-finder’s choice between 

reasonable inferences. Id. 

In the first step, we identify the circumstances proved at trial; here, the 

circumstances proved include the following:

• M.S. owned the residence. 

• M.S. answered the door when officers knocked and announced their 

presence, and officers escorted him outside immediately. 

• M.S. and Keodouangdy were the only two people at the residence on 

the day of the search. 

• T.M. found Keodouangdy asleep in the southeast bedroom.

• M.S. occupied a different bedroom in the house. 

• When T.M. first attempted to open the door to the southeast bedroom, 

the door handle was locked, but T.M. pushed the door open without 

much force and without a key. 

• The bedroom was cluttered with personal belongings. 

• Keodouangdy was sleeping on the bed next to a laundry basket and 

other items. 

• T.M. attempted to wake Keodouangdy multiple times before he 

awoke and stood up. 
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• On the side of the bed furthest from the wall, underneath where

Keodouangdy had been sleeping, T.M. found a driver’s license,

identification card, and bank card, each of which bore Keodouangdy’s 

name. 

• On the side of the bed nearest the wall, T.M. found loose clothes and 

blankets, a red bag, a cell-phone charger, and a laundry basket full of 

clothing. 

• On top of the bedding where Keodouangdy had been asleep, A.K. 

found a firearm in the center of the bed. 

• The firearm’s serial number was scrubbed off, and there was 

ammunition in the magazine. 

• In A.K.’s training and experience, firearms with serial numbers 

scrubbed off are typically stolen and individuals scrub the serial 

numbers off so that the firearm is untraceable. 

• An employment portfolio with Keodouangdy’s name on the cover and 

a piece of mail addressed to Keodouangdy at a different address were 

on the dresser next to the bed. 

• The bedroom did not contain items identified as belonging to anyone 

other than Keodouangdy. 

• Keodouangdy was prohibited from possessing a firearm.

• When officers exited the bedroom, the door was not damaged and was 

able to close shut. 

Having identified the circumstances proved, we turn to the second step of the 

analysis: whether the circumstances proved, viewed as a whole, are consistent with 

Keodouangdy’s guilt of unlawful possession of a firearm and inconsistent with any rational 

hypothesis other than his guilt. Viewing the circumstances proved here, we conclude that 

they are consistent with guilt because the firearm was found in a place over which 

Keodouangdy was exercising dominion and control—on the bed on which he was found 
15

asleep in the bedroom that contained personal items established as belonging to him. It is 

reasonable to infer that this was “a place under defendant’s exclusive control to which other 

people did not normally have access.” Florine, 226 N.W.2d at 611. Even if we were to 

infer that M.S. had access to the bedroom, notwithstanding that the bedroom door could 

lock, the evidence here shows that Keodouangdy was consciously exercising dominion and 

control over the firearm. Keodouangdy was staying in the bedroom, no one else was living 

in it, he was able to lock the door, and the firearm was located with his personal belongings 

and within his reach while he slept. We therefore conclude that the circumstances proved 

are consistent with Keodouangdy’s possession of the firearm.

Keodouangdy argues that the circumstances proved are consistent with a rational 

hypothesis other than guilt, presenting the following theory: when M.S. heard officers 

knock and announce their presence, M.S., without Keodouangdy’s knowledge and while 

Keodouangdy slept, placed the firearm on the bed before answering the front door to let 

officers into the residence. Keodouangdy posits that this hypothesis is reasonable because

(1) M.S. could have opened and closed the bedroom door as easily as T.M. did,

notwithstanding that it had been locked; (2) the firearm was hidden from Keodouangdy’s 

view among the other items on the bed; (3) if he had felt the firearm underneath him while 

he was sleeping, he would have removed it from the bed to avoid being poked by it; and 

(4) if he had known the firearm was on the bed, he would have made “furtive movements” 

when awoken by the investigator.

But “[a]n alternative theory does not justify a new trial if that theory is not plausible 

or supported by the evidence.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). And 
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we may not “overturn a conviction based on circumstantial evidence on the basis of mere 

conjecture.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quoting Lahue, 

585 N.W.2d at 789). Neither inconsistencies in the state’s case, nor possibilities of 

innocence, require reversal “so long as the evidence taken as a whole makes such 

[alternative] theories seem unreasonable.” State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 

2008). 

We conclude that Keodouangdy’s theory is unreasonable and inconsistent with the 

circumstances proved. Here, the state proved that M.S. came to the door when the officers 

knocked and that A.K. found the firearm in the middle of the bed on top of the bedding

between the side of the bed on which Keodouangdy had been sleeping and the wall. And 

even if M.S. could have entered the bedroom as easily as T.M. did, it is unreasonable to 

infer that M.S. placed the firearm there. That theory requires an inference that M.S. would 

risk being caught in the act of planting the firearm by entering the bedroom, reaching over 

Keodouangdy while he was sleeping, placing the firearm on the bed, and firmly closing 

and locking the door on his way out, all while officers were knocking on the front door. 

Keodouangdy asserts that his lack of furtive movements upon being awoken by law 

enforcement is inconsistent with an inference of guilt, and therefore, this case is like Harris, 

in which circumstantial evidence was insufficient to prove constructive possession of a 

firearm that was wedged between the headliner and roof of the vehicle the defendant was 

driving. 895 N.W.2d at 602-03. But Harris does not stand for the proposition that a lack 

of furtive movements alone is sufficient to overturn a jury verdict. Several of the 

circumstances proved in that case supported a reasonable hypothesis other than guilt. In 
17

Harris, the defendant did not own the vehicle, there were other people in the vehicle, the 

firearm was not immediately visible or recognizable, the defendant made no suspicious 

movements and did not reach for the firearm, and DNA test results were inconclusive. Id. 

Harris is therefore distinguishable. 

Because the circumstances proved here are consistent with Keodouangdy’s 

constructive possession of the firearm and inconsistent with any rational hypothesis other 

than guilt, we conclude that the state presented sufficient evidence to support 

Keodouangdy’s conviction for unlawful possession of a firearm.

In sum, because the search warrant was supported by probable cause and because 

the state presented sufficient evidence to prove that Keodouangdy constructively possessed 

the firearm, we affirm Keodouangdy’s conviction for unlawful possession of a firearm. 

Affirmed.