This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Louis Charles Lofton,
Dakota County District Court
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Hwy 55, Hastings, MN 55033-2392 (for respondent)
Daniel Spivey Adkins, Richard Sand and Assoc., P.A., 168 Nina Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, Willis, Judge.
On appeal from conviction, Louis Lofton challenges the district court’s denial of his pretrial motion to suppress evidence obtained after police forcefully entered his apartment to execute a warrant for the arrest of a third party. Because the police entry was not justified by exigent circumstances, we reverse.
F A C T S
The district court convicted Louis Lofton of possession of a controlled substance in the third degree. The evidence supporting the conviction consisted of 4.5 grams of cocaine, seized during a pat-down search of Lofton. Lofton waived a jury trial and submitted the case to the court on stipulated facts consistent with the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).
The events leading to Lofton’s arrest began with a police search for his cousin, Dominic Fitzgerald, a fugitive who had violated conditions of his supervised release after a conviction of simple robbery. The Minnesota Department of Corrections issued a warrant for Fitzgerald’s arrest in mid-December 1998.
Over the next month-and-a-half, a Ramsey County Deputy Sheriff and an agent from the Department of Corrections gathered information that led them to believe that Fitzgerald was hiding out at Lofton's apartment. The investigators received information that Fitzgerald was receiving mail at the apartment under a false name. Investigators also received a phone tip from a caller who claimed to have seen Fitzgerald at the apartment.
On February 3, 1999, after observing a car believed to have been recently driven by Fitzgerald parked near Lofton’s apartment, the deputy deduced that Fitzgerald was inside the apartment. Later that day, the deputy and the agent met with three Inver Grove Heights police officers to arrest Fitzgerald. The deputy told the officers that they might encounter a situation where guns are present and suggested caution during the apprehension. Fitzgerald was known to be affiliated with gangs, had a propensity for violence, and had been involved in drugs. The investigators did not obtain or attempt to obtain a search warrant for Lofton’s apartment.
Around 10:30 that night, the five apprehension officers approached Lofton’s apartment, knocked on the door, announced their presence, and told the occupants that they were there to execute an arrest warrant. The officers heard commotion behind the door, and the deputy shouted that the door would be breached unless it was opened. At that point, an occupant opened the door. The officers saw people running around and immediately entered the apartment, guns drawn, and ordered Lofton and other occupants to the floor.
While Lofton was face-down on the floor, an officer began to pat him down for weapons. According to the police report, when the officer rolled Lofton to search his front, a plastic bag containing a white, powdery substance fell out of Lofton’s pants pocket. The officer believed that the bag contained a controlled substance and conducted a complete search of Lofton that produced three more plastic bags containing the same substance. Lofton was arrested and charged with possession of a controlled substance in violation of Minn. Stat. § 152.023, subd. 2(1) (1998).
After a Rasmussen hearing, the district court determined that the apprehension officers were justified in entering Lofton’s apartment because exigent circumstances existed. On appeal from conviction, Lofton argues that the police unlawfully (1) entered his apartment and (2) searched his person.
A valid arrest warrant implicitly gives police the limited authority to enter a suspect’s residence when there is reason to believe that the suspect is within. Payton v. New York, 445 U.S. 573, 603, 100 S. St. 1371, 1388 (1980). But absent consent or exigent circumstances, police may not legally search for the subject of an arrest warrant in a home of a third party without first obtaining a search warrant for the home. Steagald v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642, 1650 (1981). The state neither submitted a brief on appeal nor argued in the district court that Fitzgerald was residing at Lofton’s apartment. Thus, we do not consider whether the apprehension officers lawfully entered the apartment under Payton. See State v. Butcher, 563 N.W.2d 776, 780-81 (Minn. App. 1997), review denied (Minn. Aug 5, 1997) (issues not briefed on appeal are waived).
The officers did not receive consent to enter Lofton’s apartment. See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (stating that mere acquiescence or submission in the face of a show of force is not valid consent). In the absence of consent, we determine whether exigent circumstances permitted the officers to lawfully enter the apartment without a search warrant. We independently evaluate the found facts to determine, as a matter of law, whether exigent circumstances existed. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990) (citation omitted).
Minnesota courts recognize two types of exigent-circumstances analysis: (1) single-factor exigent circumstances and (2) in the absence of a single factor, a “totality of the circumstances” analysis. Id. Single-factor exigent circumstances include hot pursuit of a felon, imminent destruction or removal of evidence, protection of human life, likely escape of a suspect, and fire. Id. (citations omitted). One of the single factors must be “clearly implicated” to constitute exigent circumstances. Id. Because the district court’s found facts do not clearly implicate any single factor, we will apply a totality-of-the-circumstances test to determine whether exigent circumstances existed.
To weigh the totality of the circumstances, Minnesota courts consider the factors set forth in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970): (a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reason to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made. State v. Hummel, 483 N.W.2d 68, 72-73 (Minn. 1992). These factors are not exhaustive, however, and courts also consider the time necessary to obtain a search warrant and whether an arrest was planned in advance or occurred in the field as a result of unfolding developments. In re Welfare of D.A.G., 484 N.W.2d 787, 791 (Minn. 1992). Neither should the factors be rigidly applied. State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984). The object of the analysis is to determine whether a “compelling need for immediate police action” existed. Id.
Applying these considerations to the undisputed facts, we conclude that exigent circumstances did not exist. First, although Fitzgerald was on supervised release following conviction of simple robbery, a violent crime, the arrest warrant was issued for two terms-of-release violations: failure to stay away from mood-altering substances and being charged with a misdemeanor. The underlying crime of simple robbery, although serious, is not the same level of gravity as murder, a crime that generally satisfies the first exigent-circumstance factor. See, e.g., Gray, 456 N.W.2d at 252-57; Hummel, 483 N.W.2d at 69-73; Lohnes, 344 N.W.2d at 606-13. Further, nothing in the record indicates the type of misdemeanor crime for which Fitzgerald was charged. And the mood-altering-substances violation, although serious, is not a violent crime.
Second, the apprehension officers concluded that Fitzgerald was at the apartment because of information that he was receiving mail there, a phone tip from a caller who claimed to have seen him there, the fact that the officers observed a car believed to have been recently driven by Fitzgerald parked outside the apartment. But the facts do not indicate when the phone tip was received, at what time the caller saw Fitzgerald, how long the car had been parked outside the apartment, whether the car was registered to Fitzgerald, and whether the officers actually saw Fitzgerald at or around the car or apartment at any time during their month-long investigation. In particular, nothing indicates that the officers had reason to believe that Fitzgerald was at the apartment at the specific time they decided to execute the arrest warrant.
Third, the officers did not make a peaceable entry. The officers told the occupants of the apartment that the door would be breached unless opened. When an occupant opened the door, the officers entered with their guns drawn and ordered all the occupants to the floor. The officers’ actions did not promote calm or incline to peace.
Fourth, no facts suggest that Fitzgerald was likely to escape.
Fifth, the officers had ample time to obtain a search warrant. For more than a month, the deputy investigated where Fitzgerald could be found and had staked out the apartment complex for some time. See In re Welfare of D.A.G., 484 N.W.2d at 791 (stating that police had sufficient time to obtain search warrant when “at least an hour and possibly an hour an a half” elapsed between learning that drugs were on premises and entry).
Finally, Fitzgerald’s arrest was planned well in advance and did not occur as a result of unfolding developments. The Department of Corrections issued an arrest warrant for him in mid-December and the investigation extended progressively over the next month-and-a-half.
The state “bears a ‘heavy burden’ to establish exigent circumstances.” State v. Olson, 436 N.W.2d 92, 98 (Minn. 1989) (quotation omitted). Although the officers had reason to believe that Fitzgerald might be armed and probable cause to believe that he had violated the terms of his release, the evidence on the remaining factors does not support the claim of exigent circumstances. After evaluating the totality of the circumstances, we conclude that this burden has not been met. Because the only evidence supporting Lofton’s conviction was cocaine seized from his person after the officers unlawfully entered his apartment, we reverse the conviction.