This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Robert James DuShane,



Filed April 8, 2003


Lansing, Judge


Dakota County District Court

File No. K3011781



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)


John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101; and


Albert A. Garcia, Garcia & Associates, P.A., Suite 1020, 310 Fourth Avenue South, Minneapolis, MN  55415 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


In this appeal from conviction for first-degree controlled substance crime and possession of drug paraphernalia, Robert DuShane challenges the district court’s denial of his pretrial motion to suppress evidence discovered when police entered his house without a search warrant at the conclusion of an armed standoff.  Because police entry was reasonable under the particular circumstances of this case, we affirm.


Police were summoned to Robert DuShane’s house by his adult son, who was visiting from another state.  When the police arrived at the house they were met in the driveway by the son, who told them that his father was using controlled substances, seemed delusional, and would not allow him to enter the house.  Police learned that DuShane was an avid hunter and possessed guns, that he had threatened suicide, and that he had chased his girlfriend from the house at gunpoint earlier in the week.  The son told the officers that his father believed the police were trying to “get to him” through the vents in the house and that this belief had caused him to fire a shotgun at a trailer parked outside the house earlier in the week.

The police decided to deploy a SWAT team.  A command post was established near DuShane’s house from which officers tried several times to communicate with DuShane by telephone.  The SWAT team also attempted to communicate with DuShane on a “throw phone” which the officers had thrown through the front window of the house after approaching in an armored vehicle.  DuShane did not respond to these attempts to communicate with him.  During the standoff, DuShane’s son attempted unsuccessfully to contact his father’s girlfriend by telephone.

Between five and seven hours after the standoff began, officers announced on a bullhorn that they would fire tear gas into the house if DuShane did not come out.  DuShane emerged from the house and was placed, without incident, in the back of a police car.

            After DuShane surrendered, at least two officers immediately entered the house and looked in each of the rooms.  One of the officers noticed, in plain view, substances he believed to be narcotics.  On the basis of the officer’s observations police obtained a warrant to search the house more thoroughly for controlled substances.  That search yielded over two-and-one-half pounds of narcotics, and DuShane was charged with two counts of first-degree controlled-substance crime, one count of fifth-degree controlled-substance crime, and one count of possession of drug paraphernalia.

            DuShane moved to suppress the evidence on grounds that the initial entry and search of his house were unreasonable.  After the district court upheld the entry and search, DuShane 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).  On appeal from his conviction, DuShane challenges the warrantless entry of his house and the legality of his seizure by the SWAT team.


When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred by suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).


Under the “emergency exception” to the warrant requirement, police may enter a dwelling “to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.”  Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971); accord State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992).  The burden of demonstrating circumstances warranting application of the emergency exception lies with the state.  Othoudt, 482 N.W.2d at 223.  A reviewing court asks whether a person of reasonable caution and in possession of the facts available to the officers at the moment of the search would have believed that entry and search were appropriate.  Id.  Thus, the validity of the entry into DuShane’s house turns on whether police had an objectively reasonable belief that the entry was necessary to provide assistance to persons in distress.

According to suppression-hearing testimony, the officers’ decision to search was based on concern for possible hostages and on a departmental policy requiring a premises search at the conclusion of every standoff situation.  Before evaluating the reasonableness of the officers’ decision to search in the circumstances of this case, we note that a policy that purports to authorize a warrantless entry and search after every standoff exceeds the parameters of the emergency exception.  A standard search policy that is not anchored in Fourth Amendment principles is inconsistent with the fact-specific nature of the exception’s reasonableness inquiry.

In this case, however, the facts available to the officers provided a reasonable basis for believing a warrantless search for injured or captive persons was necessary.  At the conclusion of the standoff, officers knew that DuShane had been using narcotics heavily throughout the previous week and that he was suicidal and delusional.  They also knew that DuShane had threatened his girlfriend with violence and that he had discharged a firearm in her presence in the days preceding the standoff.  At the time of the standoff, the police and DuShane’s son did not know where she was.  The officers knew that DuShane had refused to allow his son to enter his house on the morning of the standoff and that his son’s efforts to contact DuShane’s girlfriend during the standoff were unsuccessful.  We therefore conclude that a person of reasonable caution could have believed the search was necessary to ensure that DuShane’s girlfriend was not inside and in need of assistance.


            DuShane also attacks, on appeal, the legality of his arrest and, apparently, both the deployment of the SWAT team and the team’s threatened use of tear gas to persuade DuShane to come out of his house.  DuShane did not challenge the legality of his arrest before the district court, nor did he argue that police illegally seized him at any point during the standoff.  This court generally does not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Because the arrest and seizure arguments were neither raised nor decided in the district court, we decline to consider them on appeal.