This opinion will be unpublished and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
State of Minnesota,
Anthony Dwight Hardin,
Tahja Star Harden,
Filed January 23, 2001
Dissenting, Klaphake, Judge
Hennepin County District Court
File No. 20863
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minnesota, MN 55487 (for appellant)
William E. McGee, Hennepin County Public Defender, Renee J. Bergeron, Assistant County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-0809 (for respondent)
Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant State of Minnesota challenges a pretrial order suppressing evidence of controlled substances seized from respondents’ residence pursuant to a search warrant that authorized a nighttime search. Because we conclude that the suppression order will have a critical impact on appellant’s ability to prosecute respondents successfully and that the suppression of evidence was erroneous, we reverse and remand for trial.
On February 24, 2000, Officer Kara Abbas of the 3rd Precinct Crack Team of the Minneapolis Police Department applied for and received a warrant authorizing a nighttime search of the premises of 3044 Elliot Avenue South, apartment E, and the occupants found inside for “[n]arcotic drugs and controlled substances including but not limited to cocaine” and other evidence of controlled substances. The affidavit supporting the warrant application stated: (1) that Abbas had been employed as a Minneapolis police officer for approximately seven years; (2) that Abbas had received complaints from citizens of a narcotics sales operation taking place at 3044 Elliott Avenue South; (3) that acting on these complaints, Abbas contacted a confidential reliable informant (CRI) to attempt a controlled purchase of crack cocaine from this address; (4) that this CRI previously provided information to Abbas and other police officers that proved to be reliable and led to arrests; (5) that within the past 72 hours Abbas met with the CRI to attempt a controlled purchase of crack cocaine at this address; (6) that after Abbas searched the CRI and found no contraband, she gave the CRI pre-recorded buy money and instructed the CRI to go to the front door of 3044 Elliot Avenue South to attempt a controlled purchase of crack cocaine; (7) that the CRI left Abbas but within her view, the CRI went to the front door of this address and was met by a black male; (8) that shortly thereafter, the CRI returned to Abbas with pieces of unwrapped suspected crack cocaine stating that s/he went to the front door and was met by a black male (early 20s, 5’6”, medium complected, medium build), who accompanied the CRI to apartment E, unlocked the door, went inside, and returned with pieces of crack cocaine that he exchanged with the CRI for money; (9) that Abbas learned that apartment E was leased to Tahja Star Harden and her husband/boyfriend Anthony Dwight Hardin, who matched the description of the seller; and (10) that Hardin had previously been arrested for traffic violations, assault, forgery, and auto theft. Finally, the warrant application and supporting affidavit stated:
A nighttime search is necessary to prevent the loss, destruction or removal of the objects of the search because:
The sales of these controlled substances is heaviest in the night time hours, and an approach to the dwelling under the cover of darkness may help prevent the loss or destruction of the objects of the search.
On March 1, 2000, at 8:47 p.m., law enforcement officers executed the search warrant. According to the complaint, officers found respondent Anthony Hardin, respondent Tahja Harden, and their two-year-old child, A.D.H., inside the residence. Officers discovered 12.5 grams of crack cocaine in the lower part of the stove, within easy reach of A.D.H., and found traces of cocaine on a glass vial, razor blades, and plastic packaging. Officers also discovered a baggie containing 14.87 grams of marijuana within reach of A.D.H. and that respondent Hardin was carrying $1,487 in cash. Officers arrested respondents and A.D.H. underwent toxicology testing, which indicated the presence of cocaine. Respondents were charged with child endangerment in violation of Minn. Stat. § 609.378, subd. 1(b)(2) (1998), and second-degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 2(1) (1998).
On May 9, 1999, at a pretrial hearing, the district court granted respondents’ motion to suppress the evidence, finding that although the affidavit established probable cause that controlled substances were present at respondents’ residence, the request for a nighttime search was not adequately supported. This appeal followed the district court’s denial of appellant’s motion for reconsideration.
D E C I S I O N
If the state appeals a pretrial suppression order,
the state must clearly and unequivocally show both that the trial court’s order will have a critical impact on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation and internal quotation marks omitted).
[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.
State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted).
1. Critical Impact
Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.
State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).
The district court’s suppression order has a critical impact on appellant’s case because the order excludes the state’s primary evidence. Respondents were charged with a controlled substance crime and child endangerment based on crack cocaine seized during execution of a search warrant. The suppression of this evidence would be fatal to further prosecution.
2. Nighttime Search Authorization
“Where, as here, the material facts are not in dispute, we independently determine whether evidence should have been suppressed as a matter of law.” State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (citation omitted). The Minnesota Supreme Court, following Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997), has stated that “the standard for an unannounced entry * * * is reasonable suspicion.” Wasson, 615 N.W.2d at 320. “This showing is not high, but the police should be required to make it whenever the reasonableness of a no knock entry is challenged.” Richards, 520 U.S. at 394-95, 117 S. Ct. at 1422). By analogy, reasonable suspicion would also be the standard for allowing a nighttime search. The supreme court has defined reasonable suspicion as “something more than an unarticulated hunch, * * * the officer must be able to point to something that objectively supports the suspicion at issue.” Wasson, 615 N.W.2d at 320.
Here, Officer Abbas pointed to facts that objectively supported the need for a nighttime search: (1) citizen complaints of a narcotics sales operation taking place at 3044 Elliot Avenue South; (2) a controlled purchase of crack cocaine made by a confidential reliable informant at this address; and (3) that “[t]he sales of these controlled substances is heaviest in the night time hours * * *.” (Emphasis added). Obviously, nighttime execution of the search warrant would facilitate a successful search of a suspected illegal drug selling operation that was busiest at night. Appellant contends:
[W]hen the affiant refers to “sales of these controlled substances” [s]he is not generally describing sales of controlled substances; rather, [s]he is making specific reference to “narcotic sales” at 3044 Elliot Avenue South.
Even if the meaning of the word “these” used in this context is technically ambiguous, the benefit of any such technicality should be resolved in favor of the nighttime search in deference to the initial determination of the issuing magistrate. “[T]he resolution of doubtful or marginal cases should be ‘largely determined by the preference to be accorded to warrants.’” State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quoting UnitedStates v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)). A reviewing court should give great deference to a magistrate’s determination of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)). An issuing magistrate “is entitled to draw common-sense and reasonable inferences from the facts and circumstances given.” State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985) (citation omitted), review denied (Minn. Sept. 19, 1985) (citation omitted).
Similar to reviewing whether a warrant was supported by probable cause, the district court should generally give great deference to a magistrate’s decision to include a no-knock provision in a search warrant.
State v. Martinez, 579 N.W.2d 144, 146 (Minn. App. 1998), review denied (Minn. July 16, 1998). Thus, a magistrate’s decision to authorize a nighttime search likewise should be given great deference. Moreover, in reviewing the sufficiency of an affidavit under the totality of the circumstances test, courts must be careful to avoid reviewing in isolation each component of the affidavit. State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991). “Even if each component is judged unsubstantial, the components viewed together may reveal * * * an internal coherence that [gives] weight to the whole.” State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999) (quotations and citations omitted) (omission and bracketed material in original). The statement in the affidavit regarding the controlled substance sales being heaviest in the nighttime hours must be reviewed together with all of the other statements, including the statement that “[y]our affiant has received complaints from citizens of a narcotics sales operation taking place” at respondents’ residence.
Here, based on the facts provided in the warrant application affidavit, the issuing magistrate found “that a nighttime search [was] necessary to prevent the loss, destruction, or removal of the objects” of the search. We conclude that this determination by the issuing magistrate satisfied the “nightcap” requirements of Minn. Stat. § 626.14 (1998), and agree that the issuing magistrate had reasonable suspicion to order a nighttime search. Accordingly, we reverse the district court’s suppression order and remand for trial.
Reversed and remanded.
KLAPHAKE, Judge (dissenting)
I respectfully dissent. Minnesota law limits the execution of a search warrant to between the hours of 7:00 a.m. and 8:00 p.m., unless the court determines
on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.
Minn. Stat. § 626.14 (1998) (emphasis added). Execution of a search warrant outside of these hours requires an additional showing that the warrant can only be executed successfully at night. State v. Alt, 463 N.W.2d 732, 734 (Minn. App. 1991). Permitting a warrant to be issued on the merest boilerplate assertions defeats this requirement.
The standard for issuing a more intrusive warrant, such as a night-capped or no-knock warrant, is admittedly not high. Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1421-22 (1997) (police must have reasonable suspicion that knocking or announcing their presence would be dangerous or futile, in order to justify no-knock entry; reasonable suspicion is lower standard than probable cause); State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (police must have something more than unarticulated hunch to support reasonable suspicion). Here, no information of any type is given to support the necessity of a post-8:00 p.m. execution. Were neighbors reporting drug traffic only after 8:00 p.m. or special concerns only after that time, or after midnight, or after dark? Was it crucial that the warrant be served at 8:45 p.m., but impossible to do so at 7:45 p.m.? We do not know, because no facts are given, save the officer’s conclusory statement that sales of drugs are more frequent at night.
The United States Supreme Court has recognized that the additional invasions of privacy suffered by execution of a more intrusive warrant are “not inconsequential.” Richards, 520 U.S. at 393 n.5, 117 S. Ct. at 1421 n.5. Adherence to the minimal standard of requiring articulable facts to support a reasonable suspicion affords protection against unjustified intrusions. Even where the standard is as low as reasonable suspicion, some attempt must be made to support a request for a more intrusive warrant.
I would affirm the ruling of the district court.
 Minn. Stat. § 626.14 provides:
A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.