This opinion will be unpublished and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,
Paul Joseph Hager,
Filed July 9, 2002
Pennington County District Court
File No. K501128
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Suite 500, 525 Park Ave., St. Paul, MN 55103; and
David Olin, Pennington County Attorney, 101 N. Main Ave., P.O. Box 396, Thief River Falls, MN 56701 (for respondent)
David D. Dusek, Attorney at Law, 215A South 4th St., P.O. Box 14145, Grand Forks, ND 58201 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s denial of his motion to suppress illegal drugs and drug paraphernalia discovered during a search of his house, Paul Hager contends that the officers violated his Fourth Amendment rights by failing to wait an adequate amount of time between knocking and announcing their presence and entering his house. Because the officers’ five-to-ten-second wait was reasonable under the circumstances, we affirm.
F A C T S
Six officers went to Paul Hager’s house in Thief River Falls at 10:53 p.m. to execute a search warrant for illegal drugs, drug paraphernalia, and items associated with drug sales. Despite the late hour, the interior lights were still on in the house. A Bureau of Criminal Apprehension (BCA) officer knocked on the back door of the house and shouted, “Police. We have a search warrant.” The officer counted to three, knocked again, and repeated, “Police. We have a search warrant.” When no one responded to the second announcement, one of the officers kicked in Hager’s back door and all officers entered the house. The BCA officer testified at the omnibus hearing that approximately five to ten seconds elapsed from the first knock until the entry into Hager’s house.
When the officers entered the house, Hager was standing in the kitchen, 10 to 15 feet from the back door through which the officers had entered. The officers handcuffed Hager, searched the house, and seized methamphetamine, marijuana, and marijuana paraphernalia.
The state charged Hager with fifth-degree controlled-substance crime. Hager moved to suppress the evidence seized during the search of his house, arguing that the officers violated his Fourth Amendment rights by failing to wait a reasonable time between the knock and the entry into his house. The district court denied Hager’s motion. Under the procedures set out in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), Hager waived his right to a jury trial and submitted his case to the court on stipulated facts. The district court found him guilty. Hager now challenges the district court’s denial of his motion to suppress.
D E C I S I O N
When the underlying facts are not in dispute, we review de novo the district court’s denial of a motion to suppress. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). The Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. The United States Supreme Court has held that whether officers knock and announce their presence when serving search warrants at a suspect’s house is one part of the reasonableness inquiry under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918 (1995); State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000); see also State v. Prudhomme, 287 N.W.2d 386, 388 (Minn. 1979) (noting, prior to the Wilson decision, that “although the United States Supreme Court has not directly held this, it would appear that the notice requirements are embodied in the Fourth Amendment”) (citation omitted).
Because the “commonlaw principle of announcement” is an “element of the reasonableness inquiry under the Fourth Amendment,” officers executing a search warrant that does not authorize an unannounced entry must knock; identify themselves as law enforcement officers; announce their authority and purpose; and, before crossing the threshold, be granted admittance, refused admittance, or constructively refused admittance because they have waited without response for a reasonable period of time. Wilson, 514 U.S. at 931-36, 115 S. Ct. at 1916-19; see also Richards v. Wisconsin, 520 U.S. 385, 387, 117 S. Ct. 1416, 1418 (1997); State v. Linder, 291 Minn. 217, 219, 190 N.W.2d 91, 93 (1971).
Courts have grappled with the issue of what constitutes a reasonable time to wait for a response before officers may conclude that they have been constructively refused admittance. The federal courts most frequently address this issue in the context of a violation of 18 U.S.C. § 3109, a statute that codifies the knock-and-announce rule. See United States v. Marts, 986 F.2d 1216, 1217 (8th Cir. 1993) (noting that section 3109 “safeguards Fourth Amendment rights, protecting citizens from violations through the misconduct of police officers”). Although this statute does not apply to Minnesota law enforcement officers, the caselaw applying the statute parallels the general Fourth Amendment considerations and is helpful in analyzing Hager’s claims.
Generally, courts have found that waiting less than five seconds is insufficient to constitute a constructive refusal of admittance. United States v. Granville, 222 F.3d 1214, 1218 (9th Cir. 2000) (finding early morning forced entry unreasonable because occupants were likely still asleep and five seconds was insufficient time to infer denial of admittance); Marts, 986 U.S. at 1217 (agreeing with district court’s finding that “[o]ne cannot fairly infer a refusal merely from the lapse of less than five seconds”) (quotation omitted) (emphasis in original).
It is undisputed that five to ten seconds elapsed from the time the BCA officer first announced the officers’ presence and the officers forcibly entered Hager’s house. The testimony at the hearing demonstrated that Hager’s house was small, so a five-to-ten-second period would arguably be a sufficient time for Hager to open the door for the officers or, at the least, to orally respond to the officers. See United States v. Spikes, 158 F.3d 913, 926 (6th Cir. 1998) (“The amount of time officers need to wait before entering a home necessarily depends on how much time it would take for a person in the house to open the door.”); United States v. Bonner, 874 F.2d 822, 825 (D.C. Cir. 1989) (finding search reasonable when officers knew persons were in a small apartment and waited ten seconds before entering). Even though the officers approached Hager’s house at 10:53 p.m., an hour at which many people would have retired for the night, the fact that the lights were still on suggested that the occupants of the house were still awake and active and did not need additional time to respond to the officer’s knocks and announcements.
But the reasonableness inquiry does not end with an analysis of the number of seconds the officers waited before entering Hager’s house. See Spikes, 158 F.3d at 926 (stating “[t]he Fourth Amendment’s ‘knock and announce’ principle, given its fact-sensitive nature, cannot be distilled into a constitutional stop-watch where a fraction of a second assumes controlling significance”). Courts look to the totality of the circumstances and balance all relevant factors to determine if officers violated a suspect’s constitutional rights. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 1776 (1996) (noting that unannounced entry into house mandates a balancing analysis); United States v. Appelquist, 145 F.3d 976, 979 (8th Cir. 1998) (applying totality of circumstances test to determine reasonableness of search and seizure when officers failed to state their purpose).
The Minnesota Supreme Court analyzes the knock-and-announce cases in terms of the purposes the rule serves: (1) preventing unnecessary destruction of the suspect’s property; (2) protecting innocent people by lessening the chance that officers search the wrong premises; (3) protecting people from unnecessary shock or embarrassment connected with unannounced entries, and (4) decreasing the chances that a suspect will have a violent response to persons seeking entry to his house for an unknown reason. Prudhomme, 287 N.W.2d at 389.
The record establishes that the officers damaged Hager’s house by breaking down the door, but this damage was necessary to gain entrance. The officers knocked and announced twice and at least five seconds elapsed with no response. Because it appeared that the house was occupied and no one was responding, the officers could reasonably believe that a quick entry would preempt a violent response or an attempt to destroy evidence. See United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998) (noting that 15-20 second wait is “certainly long enough for officers to wait before assuming the worst and making a forced entry”). By knocking and announcing two times before entering the house, the officers minimized the chance that they were entering the wrong premises, would find Hager in an embarrassing situation, or would encounter surprised resistance. See Appelquist, 145 F.3d at 977-78 (finding search reasonable when officers knocked and announced their presence three times before entering). The BCA agent testified that, in light of the circumstances, a five-to-ten second wait, when combined with two knock and announcements, was “a reasonable amount of time.” See United States v. Schenk, 983 F.2d 876, 879 (8th Cir. 1993) (relying on officer’s testimony that he “waited a reasonable amount of time,” which was “enough time to allow someone to come to the door”). Applying the guidelines set out by the federal circuit courts and the principles set out in Prudhomme, we conclude that the district court did not err in finding that the search of Hager’s house was reasonable and in ruling that the seized evidence was admissible.