This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeffrey Dale Meissner,
Filed April 22, 2003
Cass County District Court
File No. K5011128
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Jessica Bulk, Certified Student Attorney, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Earl Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484-3000 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
In this appeal from his conviction for fifth-degree controlled substance crime, appellant Jeffrey Meissner asserts that the search warrant executed at his home was not based on probable cause and that there was an insufficient basis for a nighttime authorization. Because the affidavit failed to articulate a reasonable suspicion that a nighttime authorization was necessary in order to prevent the loss, destruction, or removal of objects of the search or to protect the executing officers or the public, we reverse the judgment of conviction.
D E C I S I O N
Where the material facts are undisputed, a reviewing court independently determines whether evidence should have been suppressed as a matter of law. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). Minnesota law requires that search warrants be executed between the hours of 7:00 a.m. and 8:00 p.m., unless a nighttime search is authorized. Minn. Stat. § 626.14 (2002). In addition to the statutory provision, there are privacy interests at stake, which have constitutional implications. See Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421-22 (1997); Wasson, 615 N.W.2d at 319-20.
A nighttime authorization must be based on a reasonable suspicion that it is necessary to “prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. § 626.14. Reasonable suspicion is “something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue.” Wasson, 615 N.W.2d at 320 (citation omitted). The applicant must rely on more than boilerplate language or a blanket allegation that the premises to be searched may contain drugs that are easily destroyed or that drug matters often involve a risk to officer safety. Id. at 320-21. The reasonable suspicion standard is not high, but requires a showing of reasonableness in order to justify such a non-standard execution. Richards, 520 U.S. at 394-95, 117 S. Ct. at 1422.
In State v. Botelho, 638 N.W.2d 770, 774 (Minn. App. 2002), the no-knock provision of a search warrant was based on the following averments: (1) that illegal drugs were being used at the premises; (2) drugs are easily destroyed; and (3) the premises were frequented by drug dealers who were often armed and were dangerous people with criminal histories. We concluded that these “very limited and vague allegations” failed to meet the particularized showing of dangerousness to officer safety or threat of destruction of evidence required to support reasonable suspicion and justify a no-knock provision. Id. at 779-81.
The application here sought a nighttime authorization because
[t]his investigation has begun during night time hours and your affiant wishes to be able to execute the warrant at a time most favorable to law enforcement personnel executing the warrant, for safety reasons and to prevent any drugs manufactured from being distributed into the community.
No other information was given to support the request for a nighttime authorization. No allegations were made to raise particular concerns for officer safety, and no reason was given as to why the operation had to be executed during nighttime hours, except the bald statement that the drugs could be distributed into the community.
Unlike the nighttime authorization in Wasson, which was based on the allegation that officers had recently removed weapons from the premises and that a nighttime entry was necessary for officer safety in light of the previous weapons charge, the warrant application here is conclusory and boilerplate. Wasson, 615 N.W.2d at 320-21. We therefore conclude that the warrant is unsupported by reasonable suspicion and fails to justify the nighttime authorization in this case.
The state argues that even if this court concludes that the basis for the nighttime authorization was inadequate, appellant’s rights were not so egregiously violated as to require exclusion of the evidence. In essence, the state requests that this court adopt the good-faith exception set out in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). In Leon, the Supreme Court concluded that suppression of evidence acquired pursuant to a search warrant later found to be invalid was appropriate “only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. at 926, 104 S. Ct. at 3422. In its most literal sense, the good-faith exception applies to search warrants later found to lack probable cause.
Minnesota has thus far refused to adopt the good-faith exception to the exclusionary rule. See, e.g., State v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995); State v. Martinez, 579 N.W.2d 144, 149 (Minn. App. 1998), review denied (Minn. July 16, 1998); State v. Kahn, 555 N.W.2d 15, 20 (Minn. App. 1996). In Martinez, we rejected an appeal for a good-faith exception for a no-knock provision, stating that
[t]he police did not commit misconduct here. Their failure to provide sufficient, particularized reasons for requesting a no-knock provision, however, is the type of conduct the exclusionary rule is intended to prevent. Thus, the good faith exception cannot be applied in this case.
Martinez, 579 N.W.2d at 149; see also Garza v. State, 632 N.W.2d 633, 640 (Minn. 2001) (“even if we were to adopt Leon the good faith of the police cannot cure the absence of particularized circumstances in the warrant application justifying an unannounced entry”).
Because the search warrant affidavit here provides only the barest of conclusory allegations of necessity for a nighttime authorization and because it lacks a particularized basis for a non-standard execution, we conclude that the evidence seized pursuant to the warrant must be suppressed. We therefore reverse the district court’s judgment of conviction.
 Both Richards and Wasson involved “no-knock” warrants, although the Wasson warrant also had a nighttime authorization. The standard for such warrants requires that police must have a reasonable basis to believe that the warrant can only be successfully executed by including a “no-knock” provision. This standard is essentially the same as that required for a nighttime authorization.