This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William Sander Johnson,
Filed April 3, 2001
Ramsey County District Court
File No. F6-00-391
Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN 55103; and
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Lawrence E. Nichols, 1971 Seneca Road, Suite A, Eagan, MN 55122 (for appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.
Appellant William Sander Johnson challenges his conviction for possession of a firearm by an ineligible person, arguing that the associated search warrant lacked probable cause and unjustifiably permitted an unannounced entry. Because there was a substantial basis for the magistrate to find probable cause to issue the search warrant and sufficient reasonable suspicion to authorize an unannounced entry, we affirm appellant’s conviction.
On June 4, 1999, St. Paul Police Officer Michael Ardolf applied for and obtained a warrant to search the residence of appellant William Sander Johnson. The warrant included an unannounced entry (no-knock) provision and authorized the search of “452 Edmund (down), brown house with white trim & complete yard. B/M, late 20s’, 5-8, 270 lbs., dark skin color, short hair, known as (WILL).”
On June 8, 1999, at approximately 6:30 p.m., three search warrants were executed simultaneously at 452 Edmund (both up and down) and 462 Edmund. Police officers made an unannounced entry into appellant’s residence, 452 Edmund (down), and seized a loaded revolver, .22 caliber ammunition, $220 in cash, photographs, papers, two cell phones, and fireworks.
Appellant was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). The district court denied appellant’s motion to dismiss and following a contested omnibus hearing, the court denied appellant’s motion to suppress evidence found at his residence. After appellant waived his right to a jury trial, the case was presented in a bench trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty as charged and this appeal followed.
D E C I S I O N
1. Probable Cause for Search Warrant
A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate. In determining whether a warrant is supported by probable cause, however, we do not review the lower court’s decision de novo. Rather, we afford great deference to the issuing judge’s finding of probable cause. Our review is limited to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed.
State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999) (internal quotations and citations omitted). Under the “totality of the circumstances” test,
[t]he task of the issuing magistrate 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.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). “Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information.” State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).
Appellant argues that the factual allegations contained in the affidavit supporting the warrant application were insufficient to support the magistrate’s finding of probable cause. The affidavit supporting the warrant application provided the following information: (1) that the affiant, Officer Ardolf, had been a St. Paul police officer for nine years, was currently assigned to the Minnesota Gang Strike Force (MGSF), and in that capacity had investigated numerous gang and narcotics offenses; (2) that Ardolf had received information from a confidential reliable informant (CRI) that the premises at 452 Edmund (down) was being used by suspected gang members to sell narcotics, a fact that police sergeant Thomas Smith confirmed; (3) that Ardolf believed the CRI to be reliable, having previously provided information that led to the recovery of evidence and the arrest, charging, and conviction of suspects; (4) that during the early morning hours on May 16, 1999, MGSF Investigators Ardolf and Pinoniemi observed two black males walk from inside 452 Edmund to the street and engage in three suspected narcotics transactions within one hour; (5) that on June 1, 1999, Ardolf and Pinoniemi conducted videotaped surveillance of 452 Edmund and 462 Edmund where they observed several suspected narcotics transactions taking place in the yard of 462 Edmund after which the suspects went inside 452 Edmund, returned outside a short time later, stood in the front yard of 452 Edmund, and waved down cars allegedly to transfer drugs (which they kept hidden in the yard and porch area); (6) that on June 2, 1999, the CRI contacted Ardolf and stated that a black male, 5’8”, 270 pounds, named (Will), was living in 452 Edmund (down) and directed drug buyers to the upstairs apartment of 452 Edmund; (7) that within 24 hours of June 4, 1999, the CRI was inside 452 Edmund (down), and stated that a black male, 5’8”, 270 pounds, dark skin color, short hair, known as (Will), was present when the CRI observed an amount of crack cocaine in 452 Edmund (down); and (8) that the CRI gave detailed information regarding the crack cocaine.
The 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). Here, the facts provided in the affidavit supporting the warrant application create a “fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S. Ct. at 2332. There was a substantial basis for the magistrate to conclude that probable cause existed to issue the search warrant.
2. Unannounced Entry
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). 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.” State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).
In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. * * * 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 1421-22. Reasonable suspicion is “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.
Appellant argues that the affidavit supporting the warrant application contained insufficient facts to provide the reasonable suspicion necessary for the no-knock provision in the warrant. Appellant relies on Martinez:
Information that [suspects] may have been operating a drug outlet in their home is not a particularized reason demonstrating a safety threat to officers or a threat that evidence would be destroyed.
* * * *
[U]nder Richards there cannot be a blanket rule permitting no-knock searches based solely on evidence that a home may be being used as an outlet for drug sales.
579 N.W.2d at 148 (emphasis added). However, unlike the instant case, the “only particularized reason” given for the no-knock search in Martinez “was the fact that approaching officers could easily be seen by the home’s occupants,” and, because the search warrant also permitted execution at night, this problem could likely have been minimized. Id. In the instant case, the affidavit supporting the search warrant application stated:
An unannounced entry is necessary (to prevent the loss[,] destruction or removal of the objects of the search [and] to protect the safety of the peace officers) because:
Attempts are often made to dispose of evidence by the suspects inside the premises and the nature of the evidence makes it easy to dispose of. The substance suspected at this location is crack cocaine. Crack cocaine is usually packaged in small individually wrapped plastic packages that make it easy to hide or dispose of.
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.” Harris, 589 N.W.2d at 788 (quotations and citations omitted) (omission and bracketed material in original). The statements in the affidavit regarding the ease with which crack cocaine can be disposed of and that the “substance suspected at this location is crack cocaine,” must be reviewed together with the entire affidavit, including the statement that a male known as Will was present when the CRI observed crack cocaine in the 452 Edmund (down) residence within 24 hours of the warrant application. The search warrant affidavit in this case pointed to specific information that cannot be classified as merely boilerplate language.
After hearing evidence at the omnibus hearing, the district court rejected appellant’s objection to the unannounced entry provision of the warrant. The district court found that the “no-knock” execution was appropriate because (1) three search warrants were being simultaneously served in the immediate vicinity; (2) unidentified persons in the neighborhood appeared “out of control”; and (3) State v. Lien, 265 N.W.2d 833 (Minn. 1978), provides support.
“[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 United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)). Here, based on the facts provided in the affidavit accompanying the warrant application, the issuing magistrate found that
entry without announcement of authority or purpose is necessary to prevent the loss, destruction, or removal of the objects of said search and to protect the safety of the peace officers.
In State v. Wasson, the Minnesota Supreme Court stated:
In this case the officer followed the instruction we set out in Lien to present to a magistrate the particular circumstances justifying an unannounced entry, and the magistrate approved of that method of entry. See 265 N.W.2d at 839. The officer’s compliance with our direction weighs against excluding the evidence seized.
Wasson, 615 N.W.2d at 321. The Wasson court confirmed that the 1978 decision in Lien remains substantially viable. The affidavit indicates that appellant’s residence and neighborhood were subjected to police surveillance on May 16 and June 1, which surveillance confirmed overt suspected drug transactions. Moreover, the CRI supplied information, confirmed by Sergeant Smith, that 452 Edmund was being used by suspected gang members to sell narcotics.
Other factors also support the “no-knock” warrant. Ardolf testified that he met with Commander Leslie, Sergeant Smith, and Investigator Meskan. Smith informed Ardolf that the Thomas-Dale Block Club had made several complaints of narcotics transactions at the 452 Edmund address and that street officers had provided information about gang members using that address to sell narcotics. Ardolf testified that shots had recently been fired within this block. Ardolf further testified that because three search warrants were going to be simultaneously executed
[t]he decision was made for the safety of the officers and for the safety of the occupants in the houses that we were doing the warrants i[n] that we would need to do it quickly and take control so that somebody would not be able to access weapons and present injury to either the civilians or officers in that area.
Ardolf articulated facts that objectively supported the reasonable suspicion for an unannounced entry.
Relying on Lien, appellant argues that, because the officers failed to make a threshold reappraisal of the need for an unannounced entry, the evidence should be suppressed. The Minnesota Supreme Court stated:
[E]ven if police obtain advance judicial authorization for an unannounced entry into a dwelling, the police still should make a threshold reappraisal of the need to execute the warrant in this manner.
Lien, 265 N.W.2d at 839. However, this holding has been mitigated:
While we have stated that officers “should” make this reappraisal, we have not announced a hard and fast rule that the reappraisal is required in every case.
Wasson, 615 N.W.2d at 322.
Appellant also errs in claiming that Richards v. Wisconsin “requires a threshold evaluation.”
In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the motel room.
Richards, 520 U.S. at 395, 117 S. Ct. at 1422. Richards did not hold that the officers had to make a threshold reappraisal; it held that even when the magistrate who signed the warrant refused to include a no-knock provision, the officers’ decision to make an unannounced entry was reasonable when evaluated at the “time they entered the motel room.” Id. In the instant case, the magistrate included a no-knock provision in the warrant.
We conclude that there was a substantial basis for the magistrate to find that probable cause existed to issue the search warrant and that the affidavit supporting the warrant application provided reasonable suspicion for the magistrate to authorize an unannounced entry. Accordingly, we affirm appellant’s conviction.
 We note that “Lien’s [drug outlet] exception to the no-blanket-exception rule it announced is clearly overruled by Richards.” United States v. Tavares, 223 F.3d 911, 918 (8th Cir. 2000).