This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-864
C8-00-865

 

 

State of Minnesota,

Appellant,

 

vs.

 

Dawn Marie Bloomquist,

Respondent (C6-00-864),

 

Daniel Arthur Bloomquist,

Respondent (C8-00-865).

 

Filed October 10, 2000

Affirmed

Halbrooks, Judge

 

Kittson County District Court

File Nos. 35-K4-99-201, 35-K6-99-202

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Roger C. Malm, Kittson County Attorney, Jeffrey W. Hane, Assistant County Attorney, PO Box 790, 217 South Birch Avenue, Hallock, MN 56728 (for appellant)

 

Richard N. Sather, PO Box 381, Thief River Falls, MN 56701 (for respondent Dawn Bloomquist)

 

Earl P. Gray, 1030 Minnesota Building, 46 East 4th Street, St. Paul, MN 55101; and

 

Lisa Lodin Peralta, Suite W-1260, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Daniel Bloomquist)

 

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            This consolidated appeal is from a pretrial order suppressing evidence seized under search warrant and dismissing the case against the respondents.  The state appeals under Minn. R. Crim. P. 28.04(1), subd. 1, arguing that it had insufficient notice of respondents’ challenge to the execution of the warrant, and that the record does not support the district court’s suppression of the evidence and dismissal of the cases.  Because we conclude that the district court’s order is supported by the record, we affirm. 

FACTS

            On November 27, 1999, special agent Ron Woolever was informed by a confidential, reliable informant (CRI) that the CRI had observed the controlled substances methamphetamine, cocaine, and marijuana at the residence of respondents Daniel Arthur Bloomquist and Dawn Marie Bloomquist.  On the same day, agent Woolever drafted a search warrant for the Bloomquists’ residence and faxed it to a Koochiching County district court judge.  The judge reviewed the documents and faxed the warrant back to agent Woolever later that day.  The judge did not swear in agent Woolever on November 27, 1999.  Agent Woolever chose not to execute the search warrant on November 27, 1999, because Dawn Bloomquist was not at home. 

            On November 29, 1999, agent Woolever called the judge when he noticed that the judge had not signed part of the search warrant.  The judge swore in agent Woolever on the telephone and signed and dated the warrant November 27, 1999.  Pursuant to the judge’s instruction, agent Woolever signed the copy of the warrant in his possession.

            Later on November 29, but before executing the warrant, agent Woolever noticed that the description of the residence on the search warrant was incorrect.  Agent Woolever again called the judge, who authorized him to make the necessary changes. 

            Agent Woolever, accompanied by deputies from the Kittson County Sheriff’s Office, troopers of the Minnesota State Patrol, and U.S. Border Patrol agents, arrived at the Bloomquists’ residence at approximately 3:30 p.m. on November 29, 1999.  The officers knocked on the door and entered the residence, opening the door after a brief warning (“Police”), without announcing the purpose of the entry or, apparently, pausing to give the residents a chance to respond.  Once inside, officers saw Daniel Bloomquist coming out of the bathroom and Dawn Bloomquist running along the back of the house, on her way back inside.  The search produced various controlled substances of a number and type indicated by the CRI.  During the search, Daniel Bloomquist, while handcuffed, tried to run out the door, grabbing some methamphetamine as he did.  He was caught outside and the drug recovered.

            Complaints were filed against the Bloomquists, which included charges of second-, fourth- and fifth-degree controlled-substances violations, and possession of drug paraphernalia.  On his own initiative, agent Woolever interviewed Daniel Bloomquist while he was in custody on November 30, 1999, despite the fact that Woolever had been told by other officers that Daniel Bloomquist had invoked his right to counsel.  On December 15, 1999, Daniel Bloomquist’s attorney served a motion to suppress.  On February 16, 2000, counsel for Daniel Bloomquist sent a letter to the Kittson County attorney that stated the following:

Please be advised that we contest the execution of the search warrant of my client’s mobile home.  Please have the executing officers available for testimony at the hearing on Tuesday, February 28, 2000 at 10:30 a.m. 

 

The Kittson County attorney made this letter part of the court record. 

            On February 29, 2000, a combined omnibus hearing for the Bloomquists was held.  At the outset, counsel for Daniel Bloomquist stated “the main issue is the illegal execution of the warrant itself.”  Daniel Bloomquist’s attorney informed the court that he wanted the testimony of Police Chief Dale Hanson, stating that,

[w]ith respect to the execution, Officer Hanson is the only one that wrote a report on it and he was the first one in the house according to his report.

 

Chief Hanson’s police report was admitted without objection and stated the following:

At 1530 hours, this date, Ron Woolever knocked and opened the door and announced “Police”.  I went down the hallway and saw a male whom I know and recognize to be DAN BLOOMQUIST. 

 

The state did not call Chief Hanson, instead choosing to present evidence through agent Woolever.

            Following presentation of evidence, the attorneys and the court set up a timetable for briefing of the issues.  Counsel for Daniel Bloomquist indicated that his memorandum would be “basically on the execution of the warrant, the staleness of the warrant, and the last issue would be the signing of the warrant.”  The parties were to submit briefs at the same time.  While the Bloomquists addressed the illegal execution of the search warrant in their initial brief, the state failed to do so.  The state subsequently submitted a supplemental brief which asserted insufficient notice on the omnibus issues.  The Bloomquists filed a reply brief contending the state had sufficient notice. 

            On May 11, 2000, the district court issued orders and memoranda on the cases, concluding that the officers’ unannounced entry into the Bloomquists’ residence was improper.  The court suppressed all evidence seized during execution of the search warrant, suppressed Daniel Bloomquist’s statement taken on November 30, 1999, while he was in custody, and dismissed all charges against the Bloomquists.  This appeal follows.[1]

D E C I S I O N

            On appeal, we will not overturn a pretrial order of the district court unless the state can demonstrate clearly and unequivocally that the district court erred in its judgment and that, if not reversed, the error will critically impact the outcome of the trial.  State v. Robb, 605 N.W.2d 96, 99 (Minn. 2000).  Here, there is no dispute that the district court’s pretrial order had a critical impact on the outcome of trial.  The district court’s ruling excluding the evidence seized during execution of the search warrant resulted in dismissal of all charges against the Bloomquists.  Therefore, the state’s remaining burden is to demonstrate clearly and unequivocally that the district court erred when it suppressed the evidence found at the Bloomquists’ residence. 

I.

            The state asserts that it had insufficient notice of the challenge to the legality of the execution of the warrant.  For constitutional challenges to the admission of evidence to be timely, objections to such evidence must be raised at the omnibus hearing.  See State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 555, 141 N.W.2d 3, 14 (1965); State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996); State v. Brunes, 373 N.W.2d 381, 386 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).  These evidentiary objections take the form of pretrial motions to suppress. 

[A] pretrial 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 practice, the defense counsel at the outset of an omnibus hearing often makes a rather general statement of the issues.”  Id. 

            In a letter to the state dated February 16, 2000, counsel for Daniel Bloomquist gave notice of his intent to “contest the execution of the search warrant of [his] client’s mobile home.”  The letter also requested that the “executing officers” be “available for testimony” at the upcoming omnibus hearing.  In State v. Balduc, 514 N.W.2d 607, 609 (Minn. App. 1994), this court held that notice was sufficient where defense counsel wrote a letter to the prosecutor giving notice that all “usual” omnibus hearing issues would be contested and requesting that the police officers with relevant testimony be present at the hearing.  Here, Daniel Bloomquist’s counsel’s letter was more specific. 

            At the February 29, 2000 omnibus hearing, counsel for Daniel Bloomquist stated again that “the main issue is the illegal execution of the warrant itself.”  Bloomquist’s counsel asked to call Chief Hanson to the stand because

[w]ith respect to the execution, Officer Hanson is the only one that wrote a report on it and he was the first one in the house according to his report. 

 

            The state attempts to argue that the above statements, even taken together, did not convey to the state the Bloomquists’ counsels’ objection to the officers’ unannounced entry.  But, as the Bloomquists point out, there did not seem to be any confusion as to what “execution of the search warrant” meant at the omnibus hearing.  During the state’s direct examination of agent Woolever, the following questions were asked and answered:

Q.Agent Woolever, when did you in fact execute the search warrant as granted by Judge Leduc?

A.On November 29th at approximately 3:30 p.m.

Q.And when you executed the search warrant how did you do that?  What did you --

A.Myself, along with deputies from the Kittson County sheriff’s office, troopers from the Minnesota State Patrol, and U.S. border patrol agents went to the house and knocked on the residence -- knocked on the door and then gained entry.

Q.Were both Mr. and Mrs. Bloomquist in or about the premises at the time?

A.Mr. Bloomquist was located coming out of the bathroom area in the trailer house.  Mrs. Bloomquist was located running along the back of the trailer house back into the residence. 

 

            As part of its “lack of notice” argument, the state seeks remand to reopen the omnibus record to elicit further testimony.  In Needham, the supreme court remanded to reopen the omnibus hearing because the prosecutor had been unable to elicit relevant testimony and make an effective argument.  Needham, 488 N.W.2d at 296-97.  In this case, the state had that opportunity.  The above testimony, elicited by the state, relates specifically to law enforcement’s execution of the search warrant and the entry into the Bloomquists’ home.  It was incumbent upon the state to seek greater detail or call additional witnesses if it deemed it necessary.  It did not.

            Bloomquists’ counsel clearly gave the state adequate notice that they sought to challenge the legality of the execution of the search warrant.  And there was testimony specifically related to the unannounced entry which contradicts the state’s claim that it was prejudiced by the inability to elicit relevant testimony. 

II.

            The state contends that the district court’s finding that the officers entered the Bloomquists’ residence without proper notice is unsupported by the record. 

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence. 

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).  When reviewing the legality of a seizure or search, this court will not reverse the district court’s findings unless clearly erroneous or contrary to law.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). 

            It is undisputed that the search warrant obtained by agent Woolever did not contain a “no-knock” provision.  Both agent Woolever’s search warrant application and the search warrant itself clearly state that an unannounced entry was “NOT necessary.” 

            “Common law has long dictated that police knock and announce their authority and purpose before making a forced entry of a private dwelling.”  In re Welfare of D.A.G., 474 N.W.2d 419, 421 (Minn. App. 1991) (citation omitted). 

The “knock and announce” requirement has been recognized by both the U.S. Supreme Court and the Minnesota Supreme Court as presumptively applying to entries of private dwellings. 

 

Id. (citation omitted).  Exceptions do exist for exigent circumstances.[2]  Id.  But no evidence of exigent circumstances was offered in this case. 

            The evidence and testimony presented to the district court, specifically Chief Hanson’s report and agent Woolever’s testimony, show that the officers in this case entered the Bloomquists’ residence without fully complying with the requirement of announcing both their identity and purpose.  The state characterizes agent Woolever’s testimony as “a general summary by Agent Woolever of what happened,” arguing that “the record is silent on the issue of announcing before entry.”  But agent Woolever, the state’s witness, testified about the execution of the warrant.  It was incumbent upon the state to further develop agent Woolever’s testimony if they felt it was necessary.  The district court properly found that there was no evidence that the officers were invited in and concluded that the entry was unannounced. 

III.

            The knock-and-announce rule requires police to give notice of their authority and purpose.  2 Wayne R. LaFave, Search and Seizure, § 4.8(c) at 606 (3d ed. 1996).  As our supreme court has stated, “[u]nder normal circumstances, a warrant-bearing officer is required to identify his authority and his purpose.”  State v. Linder, 291 Minn. 217, 190 N.W.2d 91, 93 (1971).  There is no evidence here that police announced their purpose or that they waited a reasonable length of time before entering.  See United States v. Schenk, 983 F.2d 876, 879 (8th Cir. 1993).

            With no exigent circumstances existing, an unannounced entry invalidates the entry and arrest.  State v. Whelan, 350 N.W.2d 414, 415 (Minn. App. 1984). 

[A]ll evidence seized from [a] residence subsequent to the initial unlawful entry is the fruit of the poisonous tree pursuant to Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L.Ed.2d 441 (1963). 

 

State v. Lotton, 527 N.W.2d 840, 846 (Minn. App. 1995) (Huspeni, J., concurring in part, dissenting in part), review denied (Minn. Apr. 18, 1995).  When police act illegally, evidence obtained by exploitation of that illegality must be suppressed.  Wong Sun, 371 U.S. at 487-88, 83 S. Ct. at 417.  This pertains to evidence that is gained as the direct or indirect result of an illegal police action.  Id. at 484, 83 S. Ct. at 416.  The district court properly dismissed the charges against the Bloomquists that were based on the evidence seized in the unlawful entry.  The district court’s findings and analysis are supported by the record. 

            Affirmed

 



[1]  The district court suppressed Daniel Bloomquist’s custodial statement as a violation of his Fifth and Fourteenth Amendment rights under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981).  The state does not challenge the suppression of the statement on appeal.

[2]  The Minnesota Supreme Court has stated clear principles governing unannounced entries by peace officers.  See State v. Lien, 265 N.W.2d 833, 838-39 (Minn. 1978).