This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Ramsey County District Court
File No. K000734
John Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the denial of postconviction relief, arguing that the district court abused its discretion by rejecting his claim of ineffective assistance of counsel based on his trial attorney’s failure to challenge a nighttime, unannounced execution of a search warrant. Appellant also argues that the district court erred by concluding that police questioning of appellant, while handcuffed during the search, was noncustodial and did not require a Miranda warning. We affirm.
Appellant James Skrypek and his cousin Weston Skrypek were arrested in connection with a February 27, 2000, assault incident in which a small black handgun was used. Neither Skrypek nor his cousin had a gun, and they were released from custody. On March 3, 2000, police applied for a warrant to search Skrypek’s house. The supporting affidavit stated that the object of the search was to find guns and ammunition recently used to commit a crime. No specific request was made for a nighttime, unannounced entry. The boilerplate language in the search warrant, however, authorized a nighttime, unannounced entry.
On March 4, 2000, starting at approximately 4:30 a.m., police conducted surveillance at Skrypek’s residence and observed that the three people inside were not sleeping. After about an hour of surveillance, the police made an unannounced entry. Skrypek and two other people present in the house were handcuffed and escorted to the kitchen while the police conducted the search. Skrypek and the others were told that they were not under arrest, and no one would be arrested unless contraband was found. The search produced neither a gun nor ammunition. A small black vinyl bag containing paraphernalia used in the production of methamphetamine and some methamphetamine in a syringe, however, was discovered during the search. Without giving a Miranda warning, police questioned Skrypek and the others regarding the ownership of the drugs. Skrypek admitted that the drugs were his.
Skrypek was charged with controlled substance crime in the fifth degree, in violation of Minn. Stat. § 152.025, subd. 2(1) (1998). Skrypek moved to suppress the evidence, arguing that the search exceeded the scope of the warrant and that the drugs were not in plain view. Skrypek also moved to suppress his statements, claiming a Miranda violation. The district court denied Skrypek’s motion to suppress. Skrypek was convicted of controlled substance crime in the fifth degree and sentenced to 21 months in prison.
Skrypek petitioned for postconviction relief, arguing that he was denied his right to the effective assistance of counsel when his trial attorney failed to challenge the nighttime, unannounced entry in the motion to suppress evidence. Skrypek also renewed his Miranda-violation claim that had been rejected previously by the district court. An evidentiary hearing was held on November 8, 2001. The postconviction court found that Skrypek’s counsel was not ineffective where, in the exercise of “her professional discretion, she did not pursue a very weak and technical challenge to the search warrant.” The district court also concluded that Skrypek’s pre-Miranda statements were “freely and voluntarily given, noncustodial, preliminary in nature and admissible against him.” This appeal followed.
A postconviction court’s decision will not be disturbed absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). But a postconviction court’s legal determinations are reviewed de novo. Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff’d 583 N.W.2d 562 (Minn. 1998).
To prevail on the ineffective assistance of counsel claim, Skrypek must allege facts that demonstrate that (1) his counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001). “Both prongs must be satisfied to grant relief.” Kaiser v. State, 621 N.W.2d 49, 54 (Minn. App. 2001) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)), aff’d 641 N.W.2d 900 (Minn. 2002).
Skrypek argues that his trial counsel’s representation fell below the objective standard of reasonably competent counsel because the nighttime, unannounced entry was a viable and meritorious issue that under similar circumstances a reasonably competent attorney would have addressed. Generally, a court must indulge a strong presumption that counsel’s performance falls within “the wide range of professionally competent * * * assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2066; see also State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). The Minnesota Supreme Court stated that
[t]o act within an objective standard of reasonableness, an attorney must provide his or her client with the representation that an attorney exercising the customary skills and diligence * * * [of a] reasonably competent attorney would perform under similar circumstances.
State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (quotation omitted). An attorney’s decision not to pursue a theory of defense for strategic reasons does not rise to the level of ineffective assistance of counsel. See State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (finding that attorney’s decision not to contest validity of search warrant did not result in ineffective assistance of counsel, where attorney could have made decision for strategic reasons or because she thought contesting warrant would have been futile).
Based on the record, we conclude that Skrypek’s counsel performed her duties as a reasonably competent attorney would in similar circumstances. She filed a motion to suppress the drugs found in Skrypek’s house based on the scope of the search and sought to exclude Skrypek’s statements based on an alleged Miranda violation. She did not omit a challenge to the nighttime, unannounced entry for strategic reasons. Rather, based on her review of the warrant, she concluded that the manner of entry was valid. Even if she had committed an error in judgment, the pivotal issue is whether the evidence of the drugs would have been suppressed had she decided to challenge the nighttime, unannounced entry authorized by the warrant. See Grover, 402 N.W.2d at 166 (attorney’s error in judgment does not result in ineffective assistance of counsel absent showing that but for the error the outcome of the hearing would have been different). We, therefore, examine the merits of Skrypek’s argument that a nighttime, unannounced entry into his home was unreasonable.
A magistrate’s decision to issue a warrant is entitled to great deference. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). In order to justify an unannounced entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would endanger the officers executing the warrant or result in the destruction of evidence. Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1421-22 (1997). This showing is not substantial, but the police are required to make it whenever the reasonableness of an unannounced entry is challenged. Id. at 1422. Reasonable suspicion is “something more than an unarticulated hunch.” State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (citing State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989)). “[T]he officer must be able to point to something that objectively supports the suspicion at issue.” Id. Skrypek argues that, because the police did not specifically request an unannounced entry, the boilerplate language in the warrant alone was not sufficient to authorize such an entry.
Generally, without more, the boilerplate language in a search warrant affidavit is not sufficient to support authorization for an unannounced entry. Wasson, 615 N.W.2d at 322. But when there is specific, objective information in the affidavit that supports a reasonable suspicion that the officer’s safety would be jeopardized, the unannounced or “no-knock” entry is authorized. Id. at 321-22 (finding that unannounced entry provision was authorized where affidavit specifically listed that numerous weapons were found in defendant’s house three months earlier). Moreover, without language authorizing an unannounced entry, a search warrant can be executed with an unannounced entry if facts arising at the threshold strongly indicate that an unannounced entry is necessary in order to execute the warrant safely or successfully. State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978). Here, the object of the search was a small black gun used in the recent crime under investigation. Skrypek was positively identified by the victim as one of the perpetrators. The police specifically listed in the affidavit that they were also looking for ammunition used to commit the crime and that they believed this ammunition was in Skrypek’s possession. Although a warrant authorizing an unannounced entry was not specifically requested, the facts in the affidavit established that an unannounced entry was justified to ensure the officers’ safety. See United States v. Cooper, 168 F.3d 336, 339 (8th Cir. 1999) (unannounced entry justified where house likely to contain weapons); cf. United States v. Tavares, 223 F.3d 911, 917-18 (8th Cir. 2000) (unannounced entry not justified where police officers did not have any information that defendant was known to use weapons or that he carried a weapon).
Skrypek argues that the district court’s authorization of an unannounced entry constitutes a blanket authorization of a no-knock warrant for certain types of cases, a practice that has been specifically prohibited by the United States Supreme Court in Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997). The Richards case analyzed Wisconsin’s blanket exception to the knock-and-announce requirement in felony drug cases. Richards, 520 U.S. at 395, 117 S. Ct. at 1422. While cautioning against a blanket exception to the knock-and-announce requirement for all criminal investigations that include a considerable but hypothetical risk of danger to police officers or destruction of the evidence, the Richards Court held that it is the duty of the court confronted with the question to determine on a case-by-case basis whether the facts and circumstances of the particular entry justify dispensing with the requirement for a knock-and-announce entry. Id. at 394, 117 S. Ct. at 1421.
In this case, the warrant application contained information about an assault involving a gun to support a search warrant for the gun and ammunition at Skrypek’s residence because Skrypek had been identified as a perpetrator of the assault. Failure of the officers to request an unannounced entry did not preclude the district court’s consideration of the need for such an entry. We do not conclude that the district court judge who signed the warrant in this case failed to consider the facts and circumstances warranting an unannounced entry simply because the officers did not request authorization for it. We find no merit in Skrypek’s argument that authorization of an unannounced entry under the circumstances of this case constitutes a blanket exception to the knock-and-announce requirement.
Skrypek also argues that the facts alleged in the warrant application did not justify a nighttime entry. Minn. Stat. § 626.14 (1998) provides that
[a] search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.
(Emphasis added.) The statute is intended to prevent nighttime intrusions “with people being roused out of bed and forced to stand by in their night clothes while the police conduct the search.” Lien, 265 N.W.2d at 841.
The police did not specifically request a nighttime search of Skrypek’s house. But the fact that the search was for a gun provided a sufficient basis to authorize a nighttime search to protect the officers involved. See State v. Wasson, 602 N.W.2d 247, 251 (Minn. App. 1999) (nighttime entry was authorized for officer’s safety where officers knew firearms were recently present in a home), aff’d, 615 N.W.2d 316 (Minn. 2000). Moreover, the nighttime search in this case did not result in the kind of intrusion that the statute is intended to prevent, because the lights in the house were on and the residents were awake and had been moving around the house for at least an hour when the search occurred. The search of Skrypek’s house did not involve a much greater invasion of privacy than a daytime search.
Under the particular circumstances of this case, the district court was justified in authorizing an unannounced, nighttime entry into Skrypek’s house to retrieve guns based on protecting the officers’ safety. Skrypek’s attorney correctly concluded that the entry was justified. Postconviction relief was properly denied on these grounds.
Skrypek next argues that the district court erred by declining to suppress his pre-Miranda statements to police made during the search. The parties do not dispute the facts surrounding Skrypek’s incriminating statements. We review de novo the district court’s application of law to undisputed facts. Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975).
“On-the-scene questioning, where the officers are simply trying to get a preliminary explanation of a confusing situation, does not require a Miranda warning.” State v. Walsh, 495 N.W.2d 602, 604-05 (Minn. 1993) (citations omitted). But once a person is in custody, the police must give a Miranda warning before questioning. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966)). A person is in custody if, under the totality of circumstances, the facts establish that a reasonable person in the same situation would have believed he was restrained to the degree associated with a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984). “The test is not whether a reasonable person would believe he or she was not free to leave.” State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995). “[T]he only relevant inquiry is how a reasonable person in the suspect’s position would have understood the situation.” Id. (citing Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151). Skrypek argues that the police conducted a custodial interrogation when they questioned him about the drugs found in the house while he was handcuffed and not allowed to leave the kitchen area during the search for the firearm and ammunition.
A warrant to search for contraband founded on probable cause “implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595 (1981). That Skrypek was restrained during the search does not necessarily mean that he was in custody, especially since he was told that he was not under arrest. See Walsh, 495 N.W.2d at 605 (without more, handcuffing restraint did not mean defendant was in custody). Moreover, Skrypek does not seek suppression of the statements made to the police during the first half hour of the search when he talked about the assault case and about his and his wife’s use of drugs. Only after the drugs were found, Skrypek argues, did his conversation with the officers become a custodial interrogation. Because there is no “bright line” across which an interrogation is transformed from noncustodial to custodial, we must determine whether a reasonable person in Skrypek’s position would have believed that, while otherwise detained with two other residents, once the drugs and paraphernalia were found during the search for the firearm and ammunition, he was in police custody to the degree associated with a formal arrest. Champion, 533 N.W.2d at 43.
Skrypek relies on the Minnesota Supreme Court’s holding in Walsh to support his position that once the police found drugs, the situation changed and he could reasonably believe that he was in custody. See Walsh, 495 N.W.2d at 605 (once victim’s body was discovered, police had at least reasonable basis to believe that defendant was murderer). In Walsh, police responded to two 911 calls and went to a residence where they found the defendant. Id. at 603. While they searched the residence, police handcuffed the defendant to a railing and asked him some questions. Id. The supreme court found that portion of the defendant’s interrogation to be noncustodial. Id. at 605. However, the supreme court found that the situation drastically changed once the police found the dead body. Id. Because the police restrained the defendant even more and because he was the only person at the crime scene, the supreme court found that the defendant could reasonably assume that he was under arrest. Id.
While Skrypek’s situation is somewhat similar to that in Walsh with respect to police questioning him after finding evidence of a crime while he is handcuffed, it is different in other important respects. The police in Walsh came to the residence to investigate a crime scene in response to a 911 call informing the police that a woman had been murdered. Id. at 603. Upon searching the residence, they found the object of their search — a dead body. Id. In contrast, the police came to Skrypek’s home with a search warrant for a gun and ammunition linked to a crime he was suspected of committing. They did not find the object of their search. Instead, they found drugs. At that point, the police had no idea who owned the drugs. Skrypek was not suspected of a controlled substance violation, and police did not restrain Skrypek further upon finding the drugs. Moreover, there were two other people at the scene who could have been responsible for the presence of drugs in the house. Both of them were handcuffed and restrained to the same degree as Skrypek. Upon the discovery of the methamphetamine, the officers were entitled to ask questions of the three individuals to sort out the situation and to determine who should be arrested. See id. at 605 (holding that there are occasions when police need to ask questions to determine who, if anyone, should be arrested). Applying Walsh under the particular circumstances of this case, the district court correctly concluded that a reasonable person in Skrypek’s situation would not have believed that he was under arrest when, restrained along with two others during the execution of a search warrant, the police failed to find the object of the search and instead found drugs, which neither Skrypek nor the others were suspected of possessing.
The underlying purpose of a Miranda warning is to stop coercive practices used by police during custodial interrogation. Champion, 533 N.W.2d at 43. At no time during the police questioning was Skrypek compelled to respond to the officers’ questions or coerced in any way. In fact, the officer specifically told him not to admit to possession of drugs that were not his. The district court thus correctly concluded that Skrypek’s pre-Miranda statements were voluntarily given.
Based on the record and the applicable law, the district court did not abuse its discretion when it denied Skrypek’s petition for postconviction relief.
 Specifically, Skrypek was told by the officer that the police had a warrant to search his house, that Skrypek and other occupants were restrained for officers’ safety, that the police were there to investigate a gun-related crime, and that nobody was going to jail unless the police found something that “was contraband during the warrant.”
 Minnesota law provides limited guidance on the type of factors or circumstances to consider in evaluating a person’s reasonable belief that he or she is in police custody. It is noteworthy, however, that federal courts are required to consider “relevant factors” in determining whether a person is in custody for purposes of requiring a Miranda warning. United States v. Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990) (citations omitted). These factors include the person’s freedom to leave the scene; the purpose, place, and length of the interrogation; the subjective intent of the interrogating officer; the age and experience of the person interviewed; and the mode and manner of questioning. United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991). We, however, are bound by Minnesota precedent and must examine Skrypek’s situation without the benefit of a “relevant factor” analysis, which might result in a different outcome.