This opinion will be unpublished and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,
Anthony George Lesmann,
Filed April 8, 2003
Chisago County District Court
File No. K401280
Mike Hatch, Attorney General, Suite 500, 525 Park St., St. Paul, MN 55103; and
Alfred S. Alliegro, Chisago County Attorney, Daniel R. Vlieger, Assistant County Attorney, Room 373, 313 North Main Street, Center City, Minnesota 55012 (for respondent)
John A. Price III, 22530 Forest Ridge Drive, Lakeville, MN 55044 (for appellant)
Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from conviction, Anthony Lesmann challenges the district court’s denial of his pretrial motion to suppress evidence obtained after police forcibly entered his house to arrest a third person. Because the police entry was not justified by exigent circumstances or the forcible-entry statute, we reverse.
F A C T S
The district court found Anthony Lesmann guilty of first-degree controlled-substance crime (manufacturing). The evidence supporting the conviction was seized during a search of Lesmann’s house and an outbuilding on his property. Lesmann waived a jury trial and submitted the case to the court on stipulated facts consistent with the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).
The events leading to the charges against Lesmann began when a North Branch police officer and a Chisago County sheriff’s deputy drove to Lesmann’s house in response to an anonymous tip that an individual wanted on a South Dakota felony narcotics warrant, Gregory Woessner, was there. The officer and the deputy were aware that North Branch police had been looking for Woessner for several weeks, that Woessner knew they were looking for him, and that officers involved in the search believed Woessner “would run.”
The officer and the deputy arrived at Lesmann’s house about 3:20 a.m. After the officer looked through a large picture window and saw an unknown female sitting at a computer in the kitchen, the sheriff’s deputy knocked on the door. The woman, Krisi Knobloch, opened the door and asked the officers what they wanted. The deputy asked if Woessner was in the house, and Knobloch said he was in the basement. The deputy then told Knobloch that he had a warrant for Woessner’s arrest and that he “needed to come in” to apprehend him. Knobloch told the officers they could come in, but would first have to “wait a minute.” The deputy insisted several times that the officers needed to enter the house, and Knobloch repeatedly told them they could, but would have to wait a moment outside first. Knobloch also offered to go and get Woessner or to call out to him and tell him to come to the door, but the deputy insisted on entering the house.
According to the deputy’s testimony, Knobloch responded to his insistence on entering by “bolting” from the door. The deputy then drew his weapon and pursued Knobloch into the kitchen, where she tried to gather up some pieces of tinfoil and a number of glass vials. The police officer followed the deputy into the house, also with weapon drawn, and called down into the basement for Woessner to come up with his hands in the air. Woessner complied and was arrested without incident. On the basis of the items observed in the kitchen, police officers obtained a warrant to search the house and an outbuilding and discovered further drug-related equipment and contraband. Lesmann was charged with two counts of manufacturing controlled substances in violation of Minn. Stat. §§ 152.021, subd. 2a, and 609.17, subd. 1 (2000).
The district court determined, after a Rasmussen hearing, that the apprehending officers were justified in entering Lesmann’s house because of exigent circumstances. The district court also concluded that the warrantless entry was permissible under Minn. Stat. § 629.33 (2000), which governs forcible entry of a dwelling to make an arrest. Lesmann appeals on the ground that the police unlawfully entered his house without a warrant.
D E C I S I O N
A valid arrest warrant implicitly authorizes police to enter a suspect’s residence when there is reason to believe that the suspect is within. Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388 (1980). But absent exigent circumstances, police may not legally search for the subject of an arrest warrant in a home of a third party without first obtaining a search warrant for the home. Steagald v. United States, 451 U.S. 204, 218, 101 S. Ct. 1642, 1650-51 (1981). This court independently evaluates the found facts to determine, as a matter of law, whether exigent circumstances existed. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).
Minnesota courts recognize two types of exigent-circumstances analysis: (1) single-factor analysis and, in the absence of a single factor, (2) a “totality of the circumstances” analysis. Id. Single-factor exigent circumstances include hot pursuit of a felon, imminent loss of evidence, protection of human life, likely escape of a suspect, and fire. Id. One of the single factors must be “clearly implicated” to constitute exigent circumstances. Id. Because the district court’s findings do not clearly implicate any single factor, we apply a totality-of-the-circumstances test to determine whether exigent circumstances existed.
In weighing the totality of the circumstances, Minnesota courts consider the factors set forth in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970), which include
(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reason to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made.
State v. Hummel, 483 N.W.2d 68, 72-73 (Minn. 1992) (quotation omitted). In addition to the Dorman factors, Minnesota courts also consider the amount of time available for officers to obtain a search warrant and whether the warrantless entry was part of a planned arrest or occurred in the field as a result of unfolding developments. In re Welfare of D.A.G., 484 N.W.2d 787, 791 (Minn. 1992). There is no requirement that all of the Dorman factors be equally satisfied before a warrantless entry is justified. Hummel, 483 N.W.2d at 73. Neither should the factors be rigidly applied. State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984). The purpose of the analysis is to determine whether a warrantless intrusion was based on a “compelling need for immediate police action.” Id.
Applying the Dorman factors to the undisputed facts of this case, we conclude that exigent circumstances did not exist. First, the arrest at issue did not involve a grave or violent offense. Although the record does not indicate the precise nature of the narcotics offense underlying Woessner’s warrant, the Minnesota Supreme Court has held that possession of even “a large amount” of a controlled substance does not satisfy the first Dorman factor. D.A.G., 484 N.W.2d at 792. Second, the officers cited no facts in their Rasmussen testimony to support a belief that Woessner could have been armed. Under a Dorman analysis, the simple fact that a suspect is wanted for a narcotics-related offense does not provide reasonable grounds for believing the suspect is armed. See id. at 791 (stating that police had no reason to believe that suspect in drug-related offense was armed). Third, although the apprehending officers had been told by other officers that Woessner “would run,” the record contains no facts that suggest Woessner could have escaped—or would have tried to escape—from Lesmann’s house. Fourth, because the officers entered Lesmann’s house with their weapons drawn, their entry was not peaceable as a matter of law. Id. (noting that “officers’ entry ‘with guns drawn’ does not constitute peaceable entry under any circumstances”).
In addition to the negative balance of Dorman factors, the officers do not appear to have faced time constraints that precluded them from applying for a search warrant. The officers went to Lesmann’s house in the middle of the night, and nothing in the record suggests that Woessner knew they were coming or was intending to leave. Moreover, this case involved a planned arrest and did not occur as a result of unfolding developments. The two officers made a deliberate decision to enter Lesmann’s house to take Woessner into custody and to do so without first obtaining a search warrant. The asserted exigency that did arise—Knobloch’s sudden flight to the kitchen in attempt to conceal items from the officers’ view—was an entirely foreseeable consequence of their insistence on entry. At the time the officers decided to proceed to the house to make the arrest no exigencies were known to exist.
The “heavy burden” of establishing exigent circumstances rests with the state. State v. Olson, 436 N.W.2d 92, 98 (Minn. 1989) (quotation omitted). In light of the totality of the circumstances, we conclude the state has failed to carry this burden.
The district court determined that the officers’ entry of Lesmann’s house was also authorized by Minn. Stat. § 629.33 (2000). Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).
Section 629.33 specifies a number of circumstances in which a police officer may forcibly enter “a dwelling house” to execute an arrest warrant. Minn. Stat. § 629.33. The statute does not explicitly limit that authority to the arrestee’s place of residence, and the district court assumed that the statute applies to any dwelling. But a police officer may not constitutionally enter the dwelling of a third party absent either a search warrant, valid consent to enter, or exigent circumstances justifying warrantless entry, as discussed above. Steagald, 451 U.S. at 216, 101 S. Ct. at 1650. Because statutes enjoy a presumption of constitutionality, State v. Casino Mktg. Group, Inc., 491 N.W.2d 882, 885 (Minn. 1992), and because this court must construe a statute so as to uphold its constitutionality, if possible, Bauer v. Gannett Co., Inc., 557 N.W.2d 608, 611 (Minn. App. 1997), we construe section 629.33 as not applying to the forcible entry of a dwelling house of a third party.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Entry is also permissible on the basis of consent. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). The district court determined that the officers did not receive valid consent to enter the Lesmann residence, and that conclusion is not contested by the state in this appeal.