This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
State of Minnesota,
Bruce John Pariseau,
Filed May 15, 2001
Ramsey County District Court
File No. K9993634
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Gary R. Bryant-Wolf, Esq., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree controlled substance crime, appellant Bruce John Pariseau argues that methamphetamine seized from his garage should have been suppressed because police who executed a search warrant that did not dispense with the knock-and-announce requirement did not have exigent circumstances that allowed their “no-knock” entry. We reverse.
After obtaining information from a confidential informant about Pariseau selling methamphetamine from his residence, police set up a controlled buy with the informant, who, under police surveillance, purchased methamphetamine from Pariseau. The controlled buy took place in Pariseau’s garage. Police obtained a warrant to search the premises, appurtenances, and curtilage of Pariseau’s residence for methamphetamine and items associated with selling methamphetamine. The search warrant required police to knock and announce their purpose.
Early in the afternoon, about nine narcotics officers, including some in uniform and squad cars, went to locations near Pariseau’s residence. Their plan was for two officers to go to Pariseau’s residence, knock at the front door, and then call the assisting officers to execute the search warrant. As Ramsey County Deputy Sheriff Peter Eastman was preparing to execute the search warrant, a surveillance officer reported that a van had arrived in Pariseau’s driveway and that two people got out of the van and entered Pariseau’s garage, which was not attached to the house.
By the time Eastman drove into the driveway in an unmarked, Chevy Tahoe truck, the two people had left the garage and returned to the van. Eastman approached the van and told the driver that the officers were executing a search warrant and that the driver and his passenger would be detained for a short period of time. Eastman did not see the people in the van use a cell phone or take any other action to possibly alert anyone in the garage to the officers’ presence.
As Eastman spoke with the people in the van, assisting officers drove into Pariseau’s driveway in a squad car. Eastman testified that based on the controlled buy, and on the fact that the people in the van went into the garage, he believed that Pariseau was selling methamphetamine from the garage, not the house. Eastman and Sergeant John Moore went to the garage and opened its unlocked service door without knocking. While standing in the doorway inside the garage, the officers told Pariseau, who was sitting at a desk near the rear of the garage, that they were executing a search warrant.
Eastman testified that he decided not to knock because he was concerned about the potential risk of destruction of evidence. Eastman explained that the van in the driveway was an unanticipated situation that delayed execution of the search warrant and increased the likelihood that someone inside Pariseau’s house or garage would see a marked squad car or uniformed officer and destroy evidence. He testified that he spent about 30 seconds at the van. The squad car in the driveway was visible from inside the house, but Eastman testified that he was not aware of any possibility that a person in the garage could look out to the driveway area and that neither the large garage door nor the service door had a window. He also testified that the garage was his main focus, and the house was secondary because it appeared that all of the business was being done from the garage. Before entering the garage, Eastman did not have any knowledge that there was anyone in the house, and he did not know whether there was any means for someone in the house to alert someone in the garage.
Eastman testified that methamphetamine, which is usually packaged in small plastic bindles, can be disposed of by flushing it down a toilet, dispersing it into the air or onto the ground, or swallowing it.
Police discovered 55.2 grams of methamphetamine in Pariseau’s garage. Pariseau was charged with one count of first-degree controlled substance crime, sale of methamphetamine, in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (1998). He moved to suppress the evidence discovered during the search of his residence. Following an omnibus hearing, the district court denied the motion.
In denying the motion, the district court found:
Based on his eight years as a narcotics officer, Deputy Eastman had reason to believe the drugs would be destroyed if he executed the search warrant as a knock-and-announce. Three factors support Deputy Eastman’s reasoning. First, the officers had to approach the van and identify themselves and call for back-up. This delayed the execution of the search warrant. Deputy Eastman was worried that people in the house or garage would see the marked squad car. Second, the officers believed [Pariseau] was in the garage; however, after speaking to the driver of the van Michael Nelson, the officers were unsure of [Pariseau’s] whereabouts. Nelson testified that he lied to the officers about [Pariseau’s] location, stating that he did not know if [Pariseau] was in the garage or if [Pariseau] was in the house. Third, the officers believed [Pariseau] would be in possession of methamphetamine. According to Deputy Eastman, this is a white powder that can be easily disposed of by being swallowed, flushed down toilets, thrown on the ground or dispersed into the air.
The district court also found that the intrusion by the officers was slight.
Pariseau waived his right to a jury trial, stipulated to the state’s evidence, and the parties submitted the case to the district court for decision. The district court found Pariseau guilty and sentenced him to an executed term of 93 months in prison.
When the material facts are not in dispute, this court independently determines whether evidence should have been suppressed as a matter of law. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).
Common law has long dictated that police knock and announce their authority and purpose before making a forced entry of a private dwelling. * * * 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. There are, however, exceptions for exigent circumstances.
In re the Welfare of D.A.G., 474 N.W.2d 419, 421 (Minn. App. 1991) (citations omitted), aff’d, 484 N.W. 2d 787 (1992). The purposes served by the knock-and-announce requirement include:
preventing the unnecessary destruction of property and mistaken entry into the wrong premises, protecting against unnecessary shock and embarrassment, and decreasing the potential for a violent response.
Wasson, 615 N.W.2d at 319-20.
The state argues that to justify a no-knock entry, police need only have a reasonable suspicion that a no-knock entry is necessary to successfully execute the search warrant.
“[P]olice 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.”
* * * “[T]his showing [required under the reasonable suspicion standard] is not high, but the police should be required to make it whenever the reasonableness of a no knock entry is challenged.” In other contexts this court has defined reasonable suspicion as something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue.
Wasson, 615 N.W.2d at 320 (quoting Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1421 (1997)). Wasson and Richards involved the showing required to obtain a no-knock warrant. The Wasson court distinguished between an officer requesting a no-knock search warrant and making the determination at the threshold:
Many of the other cases appellant cites are also distinguishable on the basis that the officers did not specifically request authorization for an unannounced entry. While we need not decide in this case whether to adopt a good faith exception to the knock and announce rule, we have stated, in the probable cause context, that where a search is based on the probable cause determination of a magistrate, rather than a police officer, we may accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant. Likewise, in the unannounced search context, we may accept evidence of a threat to officer safety of a less persuasive character when the officer presents the request for a no-knock warrant to a magistrate.
Id. at 321 (citations and quotations omitted) When advance authorization for an unannounced entry is not sought, the supreme court has described the showing necessary to justify an unannounced entry as follows: Police may make an unannounced entry to execute a search warrant if facts arising at the threshold strongly indicate that an unannounced entry is necessary in order to safely or successfully execute the warrant. State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978).
Citing Lien, 265 N.W.2d at 839, the state argues that the presence of the van in Pariseau’s driveway was a factor supporting the unannounced entry because traffic to and from the premises to be searched is a factor to be considered in determining the necessity of an unannounced entry. Lien, however, involved the drug-outlet exception to the announcement requirement, an exception which this court recently concluded no longer remains valid.
[O]ur supreme court has followed Richards in rejecting a blanket exception for all felony drug cases. The state presents no persuasive argument for permitting a blanket exception for “drug outlets” but not for residences otherwise involved in drug trafficking.
State v. Barnes, 618 N.W.2d 805, 811 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).
Citing United States v. Dickerson, 195 F.3d 1183, 1186-87 (10th Cir. 1999), the state argues that the delay in executing the search warrant caused by the presence of the van and its occupants is a factor supporting the unannounced entry because it increased the likelihood that someone in the house would be alerted to the officers’ presence. But in Dickerson, the police made a stronger showing that people inside the residence to be searched had been alerted to the officers’ presence. There, a loud confrontation occurred between identifiable law enforcement officers and people in front of the residence to be searched. The front door to the residence was open, and the court found that occupants of the house, two of whom were in the living room at the front of the house, had been alerted to the presence of police by the confrontation. Here, Eastman did not know whether anyone was in the house.
The state also argues that in determining whether the unannounced entry violated the Fourth Amendment, it is relevant to consider the degree of intrusion and whether any of the purposes of the announcement requirement were offended. See State v. Prudhomme, 287 N.W.2d 386, 389 (Minn. 1979) (in determining whether officers’ unannounced entry into unlocked foyer violated the Fourth Amendment, court considered whether any purposes of the announcement requirement were offended and the minimal infringement upon any reasonable expectation of privacy). The district court found that the intrusion was only slight. The officers opened an unlocked service door to Pariseau’s garage and announced their presence from near the threshold.
Although we recognize that some of the facts that arose at the threshold could possibly have affected the successful execution of the search warrant, we conclude that the facts, in their entirety, did not strongly indicate that an unannounced entry was necessary to safely or successfully execute the warrant. The presence of the van did briefly slow down the execution of the warrant, but the delay was 30 seconds or fewer. Also, during part of this delay, there were uniformed officers and a squad car in the driveway, but the driveway was not visible from the garage, and Eastman had no knowledge that there was anyone in the house or the van who might have alerted anyone in the garage to the officer’s presence. Finally, methamphetamine, the drug that police expected to find in the garage, can be disposed of easily. But there is no indication that disposal could have occurred here more easily than in any situation where officers knock and announce before executing a search warrant.