This opinion will be unpublished and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
Jarone Dion Carter, petitioner,
State of Minnesota,
Filed May 14, 2002
Hennepin County District Court
File No. 99079877
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
On appeal from the district court’s denial of his postconviction petition, appellant challenges his convictions of first- and second-degree controlled-substance crimes, arguing that the evidence seized from the hotel room where he was a guest should have been suppressed because (1) the police entered and searched the room without a warrant, (2) the police failed to knock and announce their presence before entering and (3) the later-acquired search warrant lacked probable cause and could not provide an independent source for the evidence. We affirm.
A confidential informant told Minneapolis Police Officer David Menter that Mike Ezell, known on the street as “RC,” was selling heroin in the area of Lake Street and Chicago Avenue South in Minneapolis. The informant said Ezell keeps the heroin in a pouch created inside his pants’ zipper. The informant also said Ezell and a man known as “J” were staying at and were storing and processing heroin in room 272 of the Quality Inn & Suites. A second informant confirmed this information.
Officer Menter arrested Ezell on Lake Street. In a search of Ezell incident to the arrest, Officer Menter found a quantity of heroin in a pouch created near his zipper, as had been stated by the confidential informant. Officer Menter also found an electronic hotel room key, which Ezell said was to a room at the Roadway Inn. Officer Menter contacted the Roadway Inn and was told the key did not belong to that hotel. Relying on the confidential informants’ tips, Officer Menter then went to the Quality Inn, where a manager confirmed that the key taken from Ezell was the key to room 272. Officer Menter, three other officers, and the hotel manager went to room 272.
Appellant Jarone Dion Carter was in room 272. When Officer Menter knocked on the door, Carter asked who was knocking. Officer Menter replied, “Maintenance.” Carter and Officer Menter disagree about what happened next. Carter testified the officers opened the door before he reached it, but Officer Menter testified Carter opened the door for them. The officers entered the room with their guns drawn. Officer Menter testified that the officers only conducted a protective sweep of the room at this time, while Carter testified the officers did a more thorough initial search of the room.
Three officers stayed with Carter until Officer Menter could obtain and return with a search warrant. The warrant application sought a nighttime search and an unannounced entry based, in part, on the erroneous inclusion of a statement, contained in a different application that was being used as a model, that two guns were seen in the room. When the officers executed the search warrant two hours later, they recovered 25 grams of heroin from a deodorant-can safe, $5,995 in cash, electronic scales, a coffee grinder with heroin residue on it, and hundreds of small plastic baggies.
The state charged Carter with one count of first-degree controlled-substance crime and one count of second-degree controlled-substance crime. The district court denied Carter’s motion to suppress the evidence seized. At trial, the jury found Carter guilty of both charges and he was sentenced to 86 months imprisonment. Carter filed a petition for postconviction relief, arguing that the trial court should have suppressed the evidence obtained in the search of the hotel room. The postconviction court did not conduct an evidentiary hearing on the petition, but relied upon the record made and the facts found by the trial judge on Carter’s motion to suppress the evidence. The district court denied Carter’s petition for postconviction relief, determining that the trial judge had correctly denied Carter’s motion to suppress. This appeal followed.
Carter argues that the evidence obtained from the search of the hotel room should be suppressed because the initial entry and search of the room by police, without a warrant, was unreasonable and violated his constitutional rights.
The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches of persons and their homes. U.S. Const. amend. IV; Minn. Const. art. I, § 10. This protection has been extended to searches of hotel rooms. See State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986) (discussing Fourth Amendment protections to renters of hotel rooms), review denied (Minn. Aug. 13, 1986); see also State v. Richards, 552 N.W.2d 197, 204 (Minn. 1996) (discussing that, for the purpose of Fourth Amendment protections, standing to contest the legality of a search and seizure depends on the individual’s reasonable expectation of privacy).
Warrantless searches and seizures are per se unreasonable, subject to a limited number of established exceptions. State v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993). These exceptions include, but are not limited to, (1) searches conducted incident to a lawful arrest, (2) searches conducted because of exigent circumstances, and (3) searches conducted with consent. Hatton, 389 N.W.2d at 232 (citing Katz v. U.S., 389 U.S. 347, 357-58, 88 S. Ct. 507, 514-15 (1967). “The state bears the burden of showing that at least one exception applies, or evidence seized without a warrant will be suppressed.” State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988) (citations omitted). The exigent-circumstances exception can be triggered by the presence of a single factor or by the totality of the circumstances. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990). Single factors include the imminent destruction or removal of evidence and the protection of human life. Id.
The postconviction court determined that the officers’ entry to secure the premises was justified due to the exigent circumstance of the “danger of imminent destruction of evidence” by an identified accomplice. The informants told Officer Menter that Ezell worked with another man, “J,” out of room 272. Officer Menter testified that his primary reason for securing the room was that Ezell had been arrested on a public street at approximately 4:00 p.m. He was concerned that someone may have witnessed the arrest and might call room 272 before a search warrant could be obtained, which would cause “J” to destroy the evidence. Officer Menter stated that this had happened to him while investigating another crime. He testified that his secondary reason for needing to go to the hotel before obtaining a search warrant was that the informants had heard that the two people in room 272 would be leaving town, or at least that room.
The United States Supreme Court has condoned police officers’ securing of the premises when the officers were faced with a similar situation. See Segura v. U.S., 468 U.S. 796, 810, 104 S. Ct. 3380, 3388 (1984) (holding that “securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.”) (cited in State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990)).
The postconviction court’s conclusion that the original entry to secure the room was justified by exigent circumstances is supported by the trial court’s findings that Carter opened the door to the room; the officers only swept the room and secured Carter but did not conduct a complete search; and the officers did not include any information from this entry in their application for a search warrant. In other words, the entry to the room and the actions taken by police in the room were consistent with the exigent circumstances that justified them.
We conclude that the district court’s determination that exigent circumstances justified the warrantless entry and search is not clearly erroneous.
Carter argues that the evidence obtained from the search of the hotel room should be suppressed because the initial entry by police violated the knock-and-announce requirement. The state counters that Carter did not raise the knock-and-announce issue before the district court, either on his motion to suppress or in his postconviction petition, and has waived this issue. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appellate courts generally will not consider matters not argued to and considered by the district court). Because Carter’s knock-and-announce arguments are a part of his broader claim of an unreasonable search and seizure, we will consider them.
The knock-and-announce requirement is described in Wilson v. Arkansas, 514 U.S. 927, 931-36, 115 S. Ct. 1914, 1916-19 (1995) (cited in State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000)). Generally, it arises in the context of the issuance of a search warrant that authorizes police to enter without knocking. See, e.g., id. (discussing the knock-and-announce requirement when a warrant was issued that allowed officers to enter and search that defendant’s home). The Minnesota Supreme Court followed Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997), when it stated that “the standard for an unannounced entry * * * is reasonable suspicion.” Wasson, 615 N.W.2d at 320. In Richards, the United States Supreme Court stated:
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.
It is unclear whether the knock-and-announce rule is applicable to a warrantless entry. See In re D.A.G., 484 N.W.2d 787, 790 (Minn. 1992) (stating “we do not reach the issue of whether the police were required to knock and announce their authority and purpose,” before making a warrantless entry). We note, however, that there is no significant difference between the test for a warrantless entry on exigent circumstances and the test for issuing a no-knock warrant. Both are satisfied under the facts as found by the trial court.
Carter argues that evidence obtained by the search of the hotel room pursuant to the search warrant should be suppressed because the confidential informants were not reliable and the warrant application contained misstatements. Carter asserts that the invalidity of the warrant means (1) the warrant does not overcome the illegality of the original entry because it is not an independent source of the evidence, and (2) it does not justify the search made pursuant to the warrant. As to the first point, the independent-source doctrine need not be examined here because we have held that the original entry was lawful. It follows that the warrant was not the “tainted fruit” of an illegal entry. The validity of the warrant, therefore, affects only the admissibility of the evidence obtained by the execution of the warrant.
“A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.” State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999) (citing Minn. Stat. § 626.08 (1996)). Under the “totality of the circumstances” test, the judge who issues the warrant
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.
State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995); (quoting 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).
An affidavit in support of a warrant application should explain why a confidential informant is reliable or requires that the information be corroborated. State v. Causey, 257 N.W.2d 288, 291 (Minn. 1977). But see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983) (announcing the “totality of the circumstances test” under which the reliability of the confidential informant is just one factor). The postconviction court found the confidential informants to be reliable because they had “proven track records with the police”, they provided information on personal knowledge, and Officer Menter corroborated much of the information when he arrested Ezell. Officer Menter’s affidavit sets forth, in detail, the personal information he received from the first confidential informant, the confirmation of that information by another confidential informant, and the corroboration of much of that information during Ezell’s arrest. The postconviction court did not abuse its discretion by finding the information provided by the confidential informants to be reliable.
Carter argues that Officer Menter misrepresented that two guns were seen in room 272 and may have misrepresented that he had not been in room 272 before. The Minnesota Supreme Court, in Causey, provided a two-part test to determine the effect of incorrect information in warrant-application affidavits. Id. at 291-92. The court stated that only misrepresentations of material facts will invalidate a warrant and that officers will be given no protection if they culpably misrepresented the facts. Id.
Because the officers had already lawfully entered and secured the room, due to exigent circumstances, the misstatements in the affidavit are not material. Additionally, the district court specifically found that any misstatements in the affidavit were “inadvertently” made by using text from a previous search-warrant application.
The postconviction court did not abuse its discretion by finding that the warrant was supported by probable cause.