STATE OF MINNESOTA
IN COURT OF APPEALS
Scott Allen Amundson,
Filed April 11, 2006
Dissenting, Chief Judge Toussaint
Gordon L. Moore, III, Nobles County Attorney, 1530 Airport Road, Suite 400, Post Office Box 337, Worthington, MN 56187 (for respondent)
Dennis J. Rutgers, 305 South Elm Street, Post Office Box 39, Rushford, MN 55971 (for appellant)
S Y L L A B U S
When the information supporting a request for no-knock and nighttime provisions in a search warrant is illegally obtained, the no-knock and nighttime provisions should be denied and the evidence obtained during a search executed on that warrant should be suppressed.
O P I N I O N
In this appeal from convictions and a sentence for first- and fifth-degree controlled substance crime, appellant argues that the warrant authorizing the search of his house was not supported by probable cause and that the search-warrant application did not contain sufficient information supporting the no-knock and nighttime provisions of the warrant. Appellant also argues that the enhancement of his sentence under the firearm-enhancement statute violated his Sixth Amendment rights under Blakely. We conclude that the information supporting the no-knock and nighttime provisions in the search warrant was illegally obtained. Reversed and remanded.
On September 17, 2003, while
investigating a car crash, a
One week later, on September 24,
2003, Amundson’s estranged wife, M.A., reported to the police that a rock had
been thrown though her kitchen window.
M.A. told police that she and Amundson had been separated for about one
year, that during that year Amundson had harassed her on multiple occasions,
that she thought that Amundson had thrown the rock, and that two days before
the rock incident, Amundson had left several threatening messages on her
voicemail. The next day, M.A. filed a
petition for an order for protection against Amundson. A
On September 27, 2003, a
Later that day, a
records; and documents showing that Amundson owned the house. The application requested a no-knock and a nighttime warrant for officer safety.
The district court issued the requested warrant, and police executed the warrant at 1:30 a.m. without announcing their presence. While executing the warrant, officers found evidence of a methamphetamine lab. Amundson was charged with first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 2a (2002); conspiracy, in violation of Minn. Stat. § 152.096, subd. 1 (2002); fifth-degree controlled substance crime, in violation of Minn. Stat. § 152.025, subd. 2(1) (2002); and possession of a small amount of marijuana, in violation of Minn. Stat. § 152.027, subd. 4(a) (2002). After the district court denied his motion to suppress the evidence seized in the search, Amundson agreed to waive his right to a jury trial and submit the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). In consideration for his waiver, the state dismissed the conspiracy and possession-of-a-small-amount-of-marijuana charges.
The district court found Amundson guilty of first- and fifth-degree controlled substance crime. The presumptive sentence for both of these convictions is 13 months stayed. Because the district court found that Amundson was in possession of firearms when he committed the offenses, the district court applied the firearm-enhancement statute and imposed the mandatory minimum 36-month sentence. Amundson’s appeal from his convictions and his sentence follows.
1. Did the district court err by concluding that search-warrant application provided sufficient information supporting the no-knock, nighttime search warrant?
2. Does appellant’s sentence violated his Sixth Amendment rights under Blakely?
Amundson first argues that the district court erred by denying his motion to suppress the evidence obtained during the September 29, 2004 search. He argues that there was no probable cause to issue the search warrant and that the no-knock and nighttime provisions were not supported by sufficient or legally obtained information.
We review a search-warrant
application to determine whether the issuing magistrate had a “substantial
basis” to conclude that probable cause exists.
State v. Zanter,
535 N.W.2d 624, 633 (
Here, the search-warrant application provides a substantial basis for the issuing magistrate to conclude that probable cause exists. It describes the September 24 incident and contains excerpts from the messages left on M.A.’s voicemail in which Amundson threatened to hurt M.A. The search-warrant application lists the items believed to be at Amundson’s house and explains their connection to terroristic-threat and felony-pattern-of-harassments charges. We conclude that the search-warrant application, when viewed in its totality, provided a reasonable basis for the issuing magistrate to conclude that probable cause exists.
The search warrant
provisions authorizing a no-knock and a nighttime search of Amundson’s house is
the issue. We independently determine
whether evidence obtained during a search conducted with a no-knock warrant
should be suppressed. State v. Wasson, 615 N.W.2d 316, 320 (
nighttime search warrants require similar support. State
v. Lien, 265 N.W.2d 833, 840 (
The search-warrant application here cited boilerplate officer safety as the reason for both the no-knock and nighttime provisions. The stated concern for officer safety was based on the presence of firearms at Amundson’s house. The information regarding the presence of firearms was obtained from the warrantless entry of the house on September 17, 2003. Amundson argues that this information was illegally obtained and improperly considered by the issuing magistrate. The state argues that the September 17 warrantless entry was legal under the emergency exception to the warrant requirement.
emergency exception to the warrant requirement, police may make a warrantless
entry and search a home when they reasonably believe that a person within is in
need of immediate aid. State v. Halla-Poe, 468 N.W.2d 570, 572
The state’s argument is dubious. We cannot think of a reason why, if the injured motorist was present at Amundson’s house, the door would be locked. Presumably, the injured motorist or Amundson would have called for the appropriate help and waited. If the injured motorist was not well enough to drive, presumably he would have had Amundson drive him to medical help or call another friend. Someone coming into someone else’s house injured does not normally think, “Oops, I’d better lock the door.” It is worthy of note that the police do not claim that the “injured motorist” was suspected of being a fleeing felon and that they were in “hot pursuit.” If that were the record, that would provide a legitimate reason for their entry and explain the door locked from the inside. We do not have those facts. The state’s reliance on the emergency exception to the warrant requirement is pure speculation. We conclude the information regarding the presence of firearms at Amundson’s house was not legally obtained and thus not available for consideration in the search-warrant application.
Moreover, the affidavit indicates that police encountered Amundson twice in the days prior to executing the search warrant. The first encounter happened at Amundson’s house after the warrantless entry. A second encounter occurred a week later, after the criminal conduct directed toward his estranged wife. On that day, a deputy, with full knowledge of Amundson’s alleged violent conduct, went to his home during the day to attempt service of the order for protection. Although Amundson was not home, the deputy found him nearby and served the order without incident. Neither encounter involved any violence on Amundson’s part or compromise to officer safety. It is disingenuous to argue that officer safety was a serious concern necessitating no-knock and nighttime provisions.
In light of the recent peaceful encounters with Amundson and without the information regarding the presence of firearms, the search-warrant application has no particularized showing of dangerousness. The application fails to point to something that objectively supports concern for officer safety. We find the no-knock and nighttime provisions in the search warrant are invalid. The search executed on that warrant was unauthorized and the evidence seized must be suppressed.
argues that his sentence violates his Sixth Amendment rights under Blakely v. Washington, 542
D E C I S I O N
Because the information supporting the no-knock and nighttime provisions in the search warrant was illegally obtained, the search was unauthorized and evidence seized in Amundson’s house must be suppressed. The state can, if they wish, attempt to recharge Amundson without the offending evidence.
Reversed and remanded.
TOUSSAINT, Chief Judge (dissenting)
respectfully dissent. When reviewing the sufficiency of a search-warrant application,
we use a totality-of-the-circumstances test. State v.
Albrecht, 465 N.W.2d 107,