This opinion will be unpublished and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,
Brandon Nathaniel Sletten,
Filed June 12, 2001
Washington County District Court
File No. K1-00-6552
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas H. Johnson, Washington County Attorney, Jay Brunner, First Assistant County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for appellant)
Richard A. Sand, Daniel S. Adkins, Richard Sand & Associates, P.A., 168 Nina Street, St. Paul, MN 55102 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.
The state appeals from a pretrial order suppressing all evidence and dismissing the criminal complaint against respondent. The state argues that the district court erred in relying on findings made by another judge in a companion case, in failing to consider the stipulated record, and in failing to make findings on whether respondent had standing to contest the entry and search of the hotel room. We affirm in part and remand to the district court for an initial determination on the standing issue.
On November 27, 2000, investigators Dave Schiebel and Dickie Joe Turner of the Minnesota Department of Corrections Fugitive Apprehension Unit were searching for Jason Mussehl, a supervised-release violator for whom an arrest warrant had been issued for alleged parole violations. Schiebel had reason to believe that Mussehl was at the Country Inn and Suites Hotel in Forest Lake, Minnesota. Schiebel and Turner met with personnel of the Forest Lake Police Department, the Washington County Sheriff’s Department, and other assisting police agencies.
Schiebel conferred with the on-duty desk manager. After checking hotel records, Schiebel determined that Mussehl was not a registered guest. The desk manager told Schiebel that she had observed a large amount of foot traffic going in and out of Room 235. After Schiebel showed her a photograph of Mussehl, the desk manger reported that a male resembling Mussehl was seen entering Room 235 earlier in the day.
Law enforcement personnel took up positions around the hotel to guard against the potential escape of Mussehl. Schiebel, Forest Lake Police Officer Jake Ayers, and two Washington County Sheriff deputies approached Room 235 and knocked on the door at approximately 9:20 p.m. A male, subsequently identified as Steven Schulte, opened the door and the officers verbally identified themselves. Schulte shoved Schiebel away from the door before Schiebel could announce his reason for being outside Room 235. Schiebel used his foot to prevent Schulte from closing the door completely. Someone inside yelled, “It’s the cops!” Schiebel observed a male resembling Mussehl run toward the back window. Schiebel, Ayers, and the two Washington County Sheriff deputies then forced their way into the hotel room. Schiebel chased the male he suspected was Mussehl, but who was subsequently identified as respondent Brandon Nathaniel Sletten, into a bedroom and saw him throw a plastic baggie to the floor.
The room was registered to Bobbi Jo Denver, who was not present at the time law enforcement officers entered. Officers recovered a substantial amount of suspected methamphetamine, marijuana, three rocks of suspected cocaine, a red butane lighter torch, a date book, a digital scale, and cash. Christopher Hudella, another person present in Room 235 at the time of the search, told Deputy Steve Gregor of the Washington County Sheriff’s Department that he had gone to Room 235 to “get high,” and that he did get high after he received a “freebie” from respondent, who had cut and weighed the methamphetamine. None of the arrestees was an overnight guest; they were visiting Room 235 at the time of police entry.
On November 29, 2000, appellant State of Minnesota charged respondent by complaint with controlled substance crime in the second degree involving the sale of methamphetamine in violation of Minn. Stat. § 152.022, subd. 1(1) and subd. 3 (2000). On January 10, 2001, a contested omnibus hearing was held at which appellant and respondent stipulated to the introduction of police reports as the record upon which the district court would rely in rendering its decision. Respondent agreed to file his brief on or before January 17, 2001, and appellant agreed to file its brief on or before January 24, 2001. On January 24, 2001, another judge issued findings of fact and an order suppressing evidence in a companion case, State v. Schulte. On January 26, 2001, the district court issued an order adopting the findings of fact and conclusions of State v. Schulte, suppressing the evidence and dismissing the complaint against respondent. This appeal followed.
To prevail in a pretrial appeal, the state must show clearly and unequivocally that the trial court erred in its judgment and that the error will have a critical impact on the outcome of trial.
State v. Reynolds, 578 N.W.2d 762, 764 (Minn. App. 1998) (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted). Because the district court dismissed the criminal complaint against respondent “[b]ased upon the suppression of all evidence,” the critical impact standard is satisfied. Therefore, appellant’s remaining burden is to demonstrate clearly and unequivocally that the district court erred in suppressing the evidence against respondent.
Appellant contends that respondent had no standing to object to entry or search of the hotel room because he had no legitimate expectation of privacy in that room.
A defendant who seeks the suppression of evidence may not assert the violation of the Fourth Amendment rights of a third party but must allege some violation of his own rights. In order to have Fourth Amendment “standing,” therefore, a defendant must show the search or seizure infringed upon the defendant’s own legitimate expectation of privacy.
Reynolds, 578 N.W.2d at 764 (citations omitted). Respondent has the burden of establishing that he had a personal and legitimate expectation of privacy in the hotel room.
[I]t is the burden of the party seeking suppression to show his fourth amendment rights were violated, that he had a personal and legitimate expectation of privacy and that the search was illegal.
State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990) (citations omitted) (emphasis in original), review denied (Minn. Sept. 14, 1990).
As a threshold matter, respondent argues that appellant waived its right to challenge his standing because appellant failed to raise the issue at the hearing and did not raise it until the post-hearing memorandum. Reynolds, however, held “that the issue of standing was adequately presented to the trial court,” and that “[t]he state ha[d] not waived its claim that respondent lack[ed] standing,” even though the state “fail[ed] to raise the issue at the * * * hearing, and only briefly rais[ed] the issue in its post-hearing memorandum.” Reynolds, 578 N.W.2d at 764. Here, the first argument in the state’s memorandum in opposition to respondent’s motion to suppress evidence was that respondent lacked standing; almost three pages of the memorandum were devoted to that issue. Appellant adequately presented the issue of standing to the district court and has not waived its claim that respondent lacks standing.
Appellant contends that the district court failed to make appropriate findings as required by Minnesota Rule of Criminal Procedure 11.07. This rule provides: “When issues are determined, the court shall make appropriate findings in writing or orally on the record.” Minn. R. Crim. P. 11.07. Appellant argues that the district court’s failure to address the issue of standing requires a remand, and relies on State v. DeRose, 365 N.W.2d 284, 286 (Minn. App. 1985) (ordinarily, remedy for district court’s failure to make written or oral findings as required by Minn. R. Crim. P. 11.07, is a remand). “We will not decide issues that are raised for the first time on appeal or have not first been addressed by the trial court.” State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (citing State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989)). Although appellant raised the standing issue before the district court, the district court failed to make any specific finding on it. Accordingly, we remand to the district court for an initial determination on the issue of standing.
2. Unlawful Entry
Even assuming respondent had standing to challenge the entry and search of the hotel room, appellant contends that the district court erred in finding that the record supported a conclusion that the entry and search of the room were illegal and that the evidence should be suppressed. The district court in the present case adopted the findings of fact, conclusions of law, and accompanying memorandum issued by another judge in State v. Schulte. The Schulte court concluded that the law enforcement officials’ entry into Room 235 “violated Minn. Stat. § 629.34,” and “was not justified by exigent circumstances.” The Schulte court stated in the accompanying memorandum:
Based on very little evidence, law enforcement officials decided to enter Room 235 to search for Jason Mussehl. The forced entry was contrary to Minnesota law. Schiebel testified he knocked on the hotel door and announced they were police. He did not announce their purpose of entry before forcing his way into the room. Similarly, Ayers testified he did not announce their purpose of entry before forcing his way into the room. The officers failed to comply with the requirements of Minn. Stat. § 629.34. State v. Clark, 250 N.W.2d 199, 203 (Minn. 1977) holds police officers need not comply with the “strict requirements” of the knock and announce rule where they are reasonably certain it would be a “useless gesture or senseless ceremony.” The police did not afford the occupants of Room 235 the opportunity to explain to police officials that the person whom they were seeking was not present and that they were not welcome to enter without a warrant.
The Schulte court also discussed exigent circumstances in the accompanying memorandum:
In deciding whether exigent circumstances exist, the Court must consider the totality of the circumstances surrounding the entry. State v. Lasley, 236 N.W.2d 604, 609 (Minn. 1975); State v. Lohnes, 344 N.W.2d [605,] 611 [(Minn. 1984)]. In doing so, the Court may consider whether (1) a grave offense is involved; (2) the suspect is believed to be armed; (3) there is a clear showing of probable cause to believe the suspect committed the crime; (4) there is strong reason to believe the suspect is inside; (5) there is a likelihood that the suspect will escape if not immediately apprehended; and (6) the police entered peaceably despite their lack of consent. Id. at 610-11.
The court listed many factors that weighed against finding exigent circumstances: no information was provided on whether the situation with Mussehl involved a grave offense; there was only speculation on whether Mussehl was armed and whether he was on the premises; there was a very low likelihood that Mussehl would have been able to escape from an upper floor while police officers were stationed both inside and outside the premises; and the police officers’ entry was not peaceable. The district court did not clearly and unequivocally err in adopting the Schulte court’s conclusion that “the police made an illegal entry into Room 235.”
Affirmed in part and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.