This opinion will be unpublished and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
Hennepin County District Court
File No. 01019117
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Barry V. Voss, Voss & Hickman, P.A., Suite 2355, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
Appellant DuBiel was convicted of and sentenced for fifth-degree controlled-substance crime. He appeals the conviction, advancing several arguments, including that the admittedly defective nighttime execution provision of the warrant was a constitutional violation requiring suppression of the evidence seized. We agree and reverse.
Based on a tip from a confidential reliable informant that he had personally observed that appellant was growing marijuana at his home in Minneapolis, police officer David Menter obtained information from the utility company that energy consumption during the previous seven months at appellant’s residence was between two and four times higher than the average consumption for similar homes. Officer Menter applied for a search warrant based on the tip and energy-use information plus information he had obtained “from the community” that appellant was selling marijuana to his child’s schoolmates. The application contained boilerplate language requesting permission for a no-knock, nighttime execution. The search warrant was issued and permitted nighttime, no-knock execution. The warrant was executed at 9:50 p.m., but the officers, who observed appellant sitting in a chair by the front door, knocked and identified themselves as police. Appellant opened the door and cooperated with the search. Police seized more than 42.5 grams of marijuana, drug paraphernalia, several rifles, shotguns, and a revolver from a locked firearms safe in the basement, and assorted ammunition from throughout the house.
Appellant was charged with controlled substance crime, fifth-degree-possession, in violation of Minn. Stat. § 152.025, subd. 2(1), subd. 3(a) (2000); § 609.101, subd. 3 (2000); and § 609.11 (2000). Appellant moved to suppress the evidence seized from his home arguing that the warrant application did not provide probable cause to justify the search. The district court denied the appellant’s motion. Appellant then moved to suppress the evidence seized, arguing that the warrant application did not contain particularized reasonable suspicion to justify a nighttime search. The district court found that the application did not support the need for a nighttime search, but denied the motion to suppress the evidence based on the court’s determination that the error was a minor defect and not a constitutional violation.
Appellant waived his right to a jury trial and agreed to a court trial on stipulated facts. The district court found appellant guilty of controlled-substance crime fifth-degree possessing marijuana in excess of 42.5 grams and firearms in violation of Minn. Stat. § 609.11. Appellant was sentenced to 36 months, executed, but the sentence is stayed pending appeal.
When the material facts are not in dispute, “the district court’s decision whether to suppress evidence is a matter of law subject to independent review.” State v. Wasson, 602 N.W.2d 247, 250 (Minn. App. 1999). Under Minnesota law, the police may execute a search warrant only between the hours of 7:00 a.m. and 8:00 p.m. unless the issuing court determines, on the basis of facts stated in the affidavit supporting the warrant application, that a nighttime search 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 (2000). The district court found, and the state concedes, that the warrant application in this case did not contain sufficiently particularized reason to justify a nighttime or no-knock entry. But, relying on State v. Lien,the district court determined that violation of the statute was “technical” and that the search did not constitute a constitutional violation requiring suppression of the evidence seized. State v. Lien, 265 N.W.2d 833, 841-42 (Minn. 1978).
In Lien, a similarly defective search warrant was executed just after 9:00 pm., after police had observed people going in and out of Lien’s house and immediately after the police saw Lien enter the house and leave the door slightly open. Lein, 265 N.W.2d at 841. The supreme court held that although the search violated the statute, the violation did not mandate exclusion of evidence seized. Id. at 835. The supreme court recognized that the statutory rule against nighttime searches “may also have a constitutional dimension.” Id. at 839 (citing Justice Marshall’s dissenting opinion in Gooding v. United States, 416 U.S. 430, 94 S. Ct. 1780 (1974) stating belief that the Constitution requires additional justification for nighttime search of a home).
Underlying the Minnesota statutory rule—as well as Justice Marshall’s suggested constitutionally based rule—is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.
Lien, 265 N.W.2d at 839-40. The supreme court emphasized that the police acted in good faith in reliance on the warrant and noted that there was considerable activity at the apartment, Lien had just returned home, was fully clothed, and his door was partly open. Id. at 841. The supreme court concluded that the statutory violation was “technical” and not of a constitutional nature requiring suppression. Id. at 840-41.
In short, the intrusion was not the kind of nighttime intrusion—with people being roused out of bed and forced to stand by in their night clothes while the police conduct the search—that our statutory rule against nighttime execution of search warrants is primarily designed to prevent.
Id. at 841.
Appellant argues nighttime execution of warrants is governed by the same principles that apply to no-knock execution of warrants and relies on extensive case law involving no-knock searches to argue that Lien has been overruled. In 1995, the United States Supreme Court held that the common-law “knock and announce” principle is a part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 1916 (1995). Two years later, the United States Supreme Court held that in order to justify a “no-knock” entry, police must articulate a reasonable suspicion that knocking and announcing their presence, under the particular circumstances of the case involved would be dangerous or futile, or would inhibit the effective investigation of the crime. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997). Richards also rejected use of a “blanket rule” authorizing unannounced entry provisions to be included in all warrants involving narcotics cases. Id. at 385, 117 S. Ct. at 1417. We recognized in State v. Martinez that after Richards, it is questionable that the portion of Lien stating that a request for an unannounced entry should be granted if the dwelling is used as an outlet for drug sales. State v. Martinez, 579 N.W.2d 144, 147 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998). But Richards did not deal with the specific issue of whether a statutory limit on the time a warrant can be executed absent articulation of reasonable suspicion to justify a departure, is part of the Fourth-Amendment reasonableness inquiry. Lien implies that it is part of the inquiry but that a violation does not make a search per se unconstitutional. We do not conclude that Richards has overruled the reasoning in Lien addressed to nighttime searches. Nonetheless, 25 years of cases consistently requiring that a warrant application must articulate particularized reasonable suspicion to justify nighttime execution erodes any argument that officers act in good faith when they act on an unsupported nighttime execution provision. Here, the same officer who made the application executed the warrant. In unannounced-entry cases, we have held that even the good faith of the police cannot cure the absence of particularized circumstances in the warrant application justifying a deviation from the standard execution of a warrant. State v. Garza, 632 N.W.2d 633, 640 (Minn. 2001). See State v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995) (holding good faith of police cannot cure clear insufficiency of application for warrant).
In the present case, although police witnessed the appellant clothed and sitting in his living room before executing the search warrant, the warrant was executed almost two hours later than the statute allows, there were no people coming or going from the residence, and the door was closed. These facts are sufficiently distinguishable from Lien, and coupled with lack of any articulated suspicion to justify a nighttime search, make this search unlawful and require suppression of the evidence. To hold otherwise is to eliminate any requirement that a warrant meet the statutory requirements so long as officers see a clothed, awake person in a dwelling to be searched.
The purpose of the Fourth Amendment’s requirement of reasonableness “is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted—even if a later, less virtuous age should become accustomed to considering all sorts of intrusion ‘reasonable.’”
Richards, 520 U.S. at 392, 117 S. Ct. at 1421, fn. 4 (citing Minnesota v. Dickerson, 508 U.S. 366, 380, 113 S. Ct. 2130, 2139 (1993) (Scalia, J. concurring)). Appellant had every reason to believe that he was secure in his home and privacy at the time this warrant was executed. There is no indication that he had only recently returned to his home or that he was receiving people into his home, as was the case in Lien. The district court erred by failing to suppress the evidence.
Because we reverse appellant’s conviction on the grounds that unlawful nighttime execution of the search warrant required suppression of the evidence seized, we do not reach appellant’s other arguments on appeal.
 At the time Lien was decided, the statute provided that search warrants could only be served “in the daytime” unless a nighttime search was authorized in the warrant. Minn. Stat. § 626.14 (1976). The warrant was executed on September 23, 1977 and the opinion does not state how long after daylight ended that the warrant was executed.