This opinion will be unpublished and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,
Theodore Dwayne Nelson,
Filed January 8, 2002
Dakota County District Court
File No. K9-99-1699
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, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Harten, Judge.
Appellant challenges his convictions of second-degree controlled substance crime and possession of a pistol by an ineligible person. Appellant argues that the search warrant application, detailing the informant’s tip that drugs were being sold from appellant’s residence (but not showing the reliability of the informant), the discovery in the trash of trace amounts of cocaine, and police corroboration of some of the tip’s details, did not provide probable cause. Appellant also argues that the information regarding his drug dealing, his arrests for serious felonies, and his conviction of terroristic threats, did not support the no-knock provision in the warrant. We affirm.
On July 14, 1999, Apple Valley Police Officer Jeffrey McCormick applied for and obtained a warrant to search the residence of appellant Theodore Dwayne Nelson. The warrant included provisions for a nighttime search and an unannounced entry and authorized the search of the “residence and any garage and/or storage facilities at Townhouse ‘D’, 17974 Jubilee Way.”
At approximately 10:45 p.m. on July 15, 1999, McCormick and other members of the South Metro Drug Task Force executed the search warrant. Appellant and his girlfriend, Dawn Cochran, were both present and awake at the time of the unannounced entry. Appellant was given a copy of the search warrant. Following a Miranda warning and waiver, appellant provided a tape-recorded statement in which he informed the officers that there was cocaine belonging to him in the residence and a loaded handgun in the bedroom. The officers found a loaded .38 caliber handgun, more than 37 grams of cocaine, Zigzag papers, an electronic scale, a marijuana pipe, and a small amount of marijuana in the residence.
Appellant was charged with controlled substance crime in the second degree in violation of Minn. Stat. § 152.022, subd. 1(1) (1998), possession of a pistol by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998), and unlawful possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b(a) (1998). Following a contested omnibus hearing, the district court denied appellant’s motion to suppress evidence. 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 of controlled substance crime in the second degree and possession of a pistol by an ineligible person and sentenced him to serve concurrent terms of 88 and 60 months. This appeal followed.
D E C I S I O N
1. Probable Cause to Issue 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 sustain the issuing magistrate’s finding of probable cause. The supporting affidavit provided the following information: (1) that the affiant, McCormick, had been a police officer for ten years, was currently assigned to the South Metro Drug Task Force, and in that capacity had investigated the illegal possession and distribution of controlled substances; (2) that in June 1999 McCormick had spoken with a “source of information” who informed him about “drug activity occurring at 17974 #D in the Southfork townhouse complex, in Lakeville”; (3) that the “source of information” told McCormick that the individual who resided at 17974 Jubilee Way #D had the last name of “Nelson” and drove a newer silver Toyota Four Runner; (4) that McCormick contacted the Lakeville Police Department and learned that they had had contact at the address of 17974 Jubilee Way #D with a Theodore Dwayne Nelson and a Dawn Nichole Cochran as recently as April 1999; (5) that McCormick had driven by the 17974 Jubilee Way #D address and observed a silver Toyota Four Runner bearing the Minnesota license plate AZR 816, which Department of Motor Vehicle records showed was a 1998 Toyota Four Runner leased to Audrey Ann Nelson at 17974 Jubilee Way, Lakeville, Minnesota; (6) that on July 14, 1999, when McCormick went to the residence at 17974 Jubilee Way #D and observed that the trash had been placed out in the common area for refuse removal, he searched the contents of the garbage container, found several clear plastic baggies missing corner pieces, which based on his training and experience, are used to package small quantities of cocaine, found two of the baggie corners which contained a small amount of residue and field-tested positive for the presence of cocaine, and found a rental receipt bearing the name of Dawn Nichole Cochran; and (7) that McCormick did a criminal history check on Theodore Dwayne Nelson, date of birth November 2, 1971, and learned that appellant had been arrested for attempted first-degree murder, aggravated robbery, kidnapping–commit great bodily harm, and narcotics, and appellant had been convicted of terroristic threats.
Appellant argues that the informant’s credibility was not established. But as the district court pointed out, not only did McCormick verify the information provided to him by the informant, he also conducted an independent investigation that led him to recover traces of cocaine from appellant’s garbage. The evidence recovered from the garbage search provides sufficient corroborative evidence to establish the requisite probable cause. See State v. McCloskey, 453 N.W.2d 700, 703-04 (Minn. 1990) (an informant’s tip, if independently corroborated, may establish the requisite probable cause).
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). “[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 at 704 (quotation omitted). Here, we agree with the district court that the facts provided in the warrant application created a fair probability that contraband or evidence of a crime would be found in appellant’s residence. Accordingly, there was a substantial basis for the magistrate to conclude that probable cause existed to issue the search warrant.
2. Reasonable Suspicion for Unannounced Entry
“Where the material facts are not in dispute, this court independently reviews whether a no-knock entry was justified.” State v. Barnes, 618 N.W.2d 805, 810 (Minn. App. 2000) (citation omitted),review denied (Minn. Jan. 16, 2001). The Minnesota Supreme Court, following Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997), 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.
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).
Appellant argues that the no-knock provision in the search warrant was not supported by the requisite reasonable suspicion. 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 controlled substances can be disposed of and that weapons are frequently encountered in the execution of drug warrants must be reviewed together with all of the other statements contained in the affidavit, including the information provided about appellant’s criminal record. The search warrant affidavit in this case pointed to specific information that cannot be dismissed as mere boilerplate language.
After hearing testimony at the omnibus hearing, the district court rejected appellant’s objection to the unannounced entry provision of the warrant. The district court found:
In this case, [the] affidavit and application for the search warrant contained specific indications that an unannounced search was necessary for officer safety. The affidavit provided that [appellant] had previously been arrested for Attempted First Degree Murder, Aggravated Robbery, Kidnap-Commit Great Bodily Harm, and Narcotics. The affidavit also provided that [appellant] had also been previously convicted of terroristic threats. [Appellant’s] previous arrests and convictions for crimes of great violence clearly provided the officers with particular reasons for officer safety concerns. Therefore, the authorization for, and subsequent execution of, an unannounced entry was appropriate.
Once again, we are mindful that close cases such as this should be decided in favor of the preference accorded to warrants. State v. McCloskey, 453 N.W.2d at 704. Here, based on the facts provided in the warrant application affidavit, the issuing magistrate found that an unannounced entry was particularly necessary to protect the safety of the officers. We conclude that the affidavit supporting the warrant application articulated facts that objectively supported the reasonable suspicion necessary for the issuing magistrate to authorize an unannounced entry.
RANDALL, Judge (concurring specially).
I concur with the majority on the first issue, probable cause to issue a search warrant.
On the second issue, the unannounced entry, or as commonly called, "a no-knock warrant," I concur in the result because over and above the state's "boilerplate" argument, that unnamed individuals with drug and dangerous weapon histories frequented appellant's residence, there was more, and to the point. The affidavit pointed out that appellant had been previously convicted of terroristic threats and arrested for attempted first-degree murder, aggravated robbery, kidnapping-commit great bodily harm, and narcotics. This was specific to appellant. What we normally see from the state is generalized allegations about unnamed individuals (usually portrayed as "close and personal" friends of the defendant) in a generic application for a no-knock warrant.
The standard recitations about drug people tending to hide or flush away evidence, and drug people having a known propensity to keep arms are of no value, standing alone, because they destroy any difference between the standard warrant, which demands the officers knock and identify themselves, and the no-knock warrant, which allows them to enter homes with no advance notification. The reason the generalized allegations destroy any difference is that those generalized allegations can be applied, not just to drugs, but to all crimes. Take any laundry list of crimes, such as burglary, theft, receiving stolen property, embezzlement, swindle, assault, murder, etc., and in every single case, when the officers knock at the door and identify themselves and indicate that they have a warrant to enter, the person or people inside will always have a certain amount of seconds to scramble and attempt to hide anything they can quickly get their hands on that could be incriminating. The fact that they have that few to several second's opportunity is explained by one question, "So what?" That is the price the Minnesota Constitution and the Bill of Rights place on the government. Historically, no-knock warrants are not favored, are not dispensed like overdue parking meter tickets, and call for the reviewing magistrate to have a heightened sense of scrutiny.
The same is true of the generalized statement, often seen in applications for no-knock warrants, that people associated with illegal drugs are known to be around weapons and, thus, an unannounced search is necessary for the officer's safety. Again, standing alone, it is meaningless because it does not just apply to drugs-related crimes; it applies, again, to a lengthy list of crimes. Any time the subject of the search warrant is charged with any crime of violence, including, but not limited to, assault, armed robbery, and homicide, the government could make the generalized allegation that "the officers are concerned about personal safety." If that was the test, the historical constitutional distinction between the standard announced warrant and the limited no-knock warrant would be erased by government fiat.
I agree with this court's recent opinion in State v. Botelho, N.W.2d , , No. C3- 01-198 (Minn. App. Jan. 2, 2002), because it accurately discusses, and in detail, the difference between boilerplate allegations about unnamed people, and particularized allegations that give the reviewing magistrate something specific about the case and the defendant at issue. As this court stated in Botelho:
[A] mere allegation that individuals with drug, dangerous weapons, and obstructing legal process histories frequented [a defendant's] residence is not a particularized showing of dangerousness sufficient to support reasonable suspicion of a threat to officer safety.
Id., slip op. at 19.
In addition, Botelho pointed out that the United States and Minnesota Supreme Courts have "rejected a blanket exception to the knock-and-announce rule * * * for all felony drug cases." Id., slip op. at 10 (quotation and citation omitted); see also State v. Martinez, 579 N.W.2d 144, 147-48 (Minn. App. 1998) (discussing sufficient particularized language in search warrant), review denied (Minn. July 16, 1998).
Our case is not the strongest, but there is enough in the record to affirm the trial court's issuance of a no-knock warrant.
 McCormick testified at the omnibus hearing that he had been to appellant’s town home prior to the date of his search of appellant’s garbage and had recorded the serial number that was on the side of the garbage can for 17974 Jubilee Way, Apt. D. When the garbage cans were placed in the common area for collection, McCormick used the serial number he had previously recorded to locate appellant’s garbage can. McCormick personally removed the garbage from the can, examined it, and found a receipt bearing Dawn Nichole Cochran’s name and clear plastic baggies missing corner pieces that field-tested positive for cocaine.