This opinion will be unpublished and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,
Gary A. Hohneke,
Filed May 20, 2003
in part, reversed in part, and remanded
Hennepin County District Court
File No. 01098714
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
Appellant Gary Hohneke was found guilty of first-degree controlled substance crime after a trial on stipulated facts. On appeal from his conviction, he argues that (1) he was unlawfully seized; (2) his taped statement should have been suppressed because of police failure to record an earlier statement; (3) the search warrant failed to establish a nexus between criminal activity and the place to be searched; and (4) the search warrant application failed to establish a reasonable basis for a nighttime authorization.
Because the officer who seized appellant had a reasonable and articulable suspicion of criminal activity and because the violation of the Scales requirement was not substantial, we affirm on those issues. Because the search warrant affidavit established probable cause that contraband would be found at appellant’s apartment, we affirm the district court’s refusal to quash the warrant. But because the affidavit for a nighttime authorization failed to support a reasonable suspicion that the warrant could only be successfully executed during nighttime hours, we reverse the court’s refusal to suppress evidence recovered in appellant’s apartment. In addition, because the record fails to adequately describe the relative location of the garages searched under the same warrant, we remand to establish whether the garages are within appellant’s curtilage.
This court reviews de novo a pre-trial suppression order based on stipulated facts. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When reviewing a search warrant, “great deference” is afforded to the issuing judge’s finding of probable cause, and “[o]ur review is limited to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed.” State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999) (quotations omitted).
Not every contact between police and a citizen is a seizure. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). Generally, no seizure occurs when police approach a citizen in a public place or parked car and ask questions. Harris, 590 N.W.2d at 98. A seizure occurs when “a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citations omitted). This usually requires some show of force or authority, beyond the natural or instinctive pressure to cooperate. Harris, 590 N.W.2d at 99. For example, a seizure may be suggested by
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
Id. at 98 (quotations omitted). The coerciveness of the encounter depends on the totality of the circumstances. See Cripps, 533 N.W.2d at 391.
Appellant argues that he was seized when the arresting officer, Andrew Gifford, asked him if he lived in the apartment building, if he had identification, and from whose garage was he exiting. Gifford was in uniform, but standing alone outside his squad car. He reportedly said, “Hey, how are you doing?” and proceeded to ask his questions. Appellant continued to walk away, apparently believing he was free to “disregard the police questions [or] free to terminate the encounter.” Id. The tone of this first encounter was not coercive, thus supporting the district court’s conclusion that no seizure occurred at that point.
It was not until Gifford ordered appellant to stop that a seizure occurred. A brief investigatory seizure may be based on reasonable suspicion, a standard somewhat less stringent than probable cause. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). Reasonable suspicion of criminal activity exists when an officer has “a particularized and objective basis for suspecting the person stopped of criminal activity.” State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998) (quotation omitted). The officer must “be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” Id. (quotations omitted). The facts of the encounter must be viewed from the standpoint of the objectively reasonable officer. Id.
Officer Gifford was assigned to patrol this particular parking lot because of reports of suspicious activity. He saw appellant hurriedly leaving a garage, an area that was dark and deserted. Appellant appeared to be trying to avoid eye contact with Gifford. When Gifford questioned appellant, he denied living at the apartment complex or owning the garage. Together, all of these facts created a reasonable suspicion of criminal activity sufficient to support an investigatory seizure. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (concluding evasive behavior after making eye contact with officers creates reasonable suspicion of criminal activity), aff’d, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993). The district court therefore did not err in concluding that appellant was lawfully seized.
2. Scales Violation
In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the Minnesota Supreme Court imposed a recording requirement on all custodial statements. Relying on its inherent supervisory power to “insure the fair administration of justice,” rather than on due process considerations, the court held that all custodial interrogations, including Miranda warnings and waivers, must be recorded if occurring at a place of detention. Id. at 592. If law enforcement officers fail to make such a recording, “any statements the suspect makes in response to the interrogation may be suppressed at trial.” Id. The supreme court concluded that this recording requirement would end arguments about the content of such statements and would safeguard the “accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. (quotation omitted).
The recording requirement, however, is limited to the extent that recording is “feasible.” Suppression is not required if the violation is not substantial and the district court sets forth its reasons for so finding. Id. Here, the district court concluded that the recorded statement was admissible because appellant was advised of his rights and his statement was properly recorded.
Although the record suggests that appellant and the interviewing officer had a brief exchange prior to recording, nothing in the record compels a finding of a substantial violation of the Scales requirement. The Scales requirement seeks to curtail factual disputes about statements coerced by police overreaching. State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995); State v. Schroeder, 560 N.W.2d 739, 740 (Minn. App. 1997), review denied (Minn. May 20, 1997). The only substantive matter that appeared to arise from a prior conversation was a reference to Christmas trees, not an incriminating statement.
An apparently limited exchange, such as this, without some further indication of police overreaching, does not require suppression as a substantial violation of the Scales requirement. The district court therefore did not err in refusing to suppress appellant’s statement.
3. Search Warrant
This court reviews the district court’s determination of probable cause to issue a search warrant with great deference. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). The appellate court considers whether the issuing judge had a “substantial basis for concluding that probable cause existed.” Id. (citation omitted). “‘[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’” Harris, 589 N.W.2d at 790-91 (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S. Ct. 2317, 2335 n.13 (1983)). Probable cause to issue a search warrant is shown when, given all of the circumstances set forth in the affidavit, “‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Id. at 788 (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). It is a “practical, common-sense decision” based on a number of factors, including the type of items sought, the suspect’s opportunity for concealment, and normal inferences about where such items would be kept. Id. (quotation omitted).
Appellant asserts that the search warrant affidavit failed to establish a substantial basis that drugs would be found at his apartment. The affidavit contained the following information: (1) when appellant was searched incident to arrest, police found a crack pipe, $2,432.61 in cash, a small amount of marijuana, two baggies containing 4.5 grams of cocaine, a small stamp of acid, and .9 grams of methamphetamines; (2) appellant lived at the apartment complex, despite having lied earlier about that fact; (3) the garage he was exiting belonged to him, although he had also lied about that; and (4) when interviewed at the jail, appellant admitted that police could find a small amount of marijuana and a trace of cocaine in his apartment.
Bearing in mind the deferential standard of review and the “strong preference for searches conducted pursuant to * * * warrant,” there is a substantial basis for probable cause that drugs would be found in appellant’s apartment and garages. Rochefort, 631 N.W.2d at 805 (quotation omitted). The district court did not err in refusing to quash the warrant.
4. Nighttime Authorization
A search warrant may be executed only between the hours of 7:00 a.m. and 8:00 p.m. unless the issuing court determines from facts in the application 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.” Minn. Stat. § 626.14 (2002). In order to justify a nighttime authorization, the police
must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)). “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.” Id. (citation omitted). The standard is not high and because of the preference for warrants, a reviewing court may accept “evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.” Id. at 321 (quotations omitted). Even this lesser standard, however, requires something more than conclusory, boilerplate language that drugs are involved. Id. at 320.
In Wasson, in addition to boilerplate language announcing that a search would be dangerous or allow destruction of evidence, the affidavit contained the specific allegation that weapons had been removed from the premises within the preceding three months. Thus, the supreme court upheld the search. Id. at 320-21. By contrast, in Garza v. State, 632 N.W.2d 633 (Minn. 2001), the supreme court determined that an unannounced entry was not justified when the affidavit simply alleged that
[p]ersons involved in Drug trafficking will destroy evidence if given prior warning. Drug traffickers also will use violence if given prior warning therefore Law Enforcement needs the element of surprise to protect themselves from harm.
Id. at 636.
Here, the application for a nighttime authorization alleges:
Your affiant knows from previous police experience narcotic traffickers often conduct their business during nighttime hours in an effort to mask their business from neighbors and police, and therefore have larger quantities of narcotics and contraband on hand. Your affiant is also aware that during the nighttime hours, police can move about more freely due to darkness and the infrequency of pedestrian traffic thereby creating a safer environment for police and citizens alike. Your affiant also knows per Hohneke that there is at least one other person in the apartment, and if delayed, any remaining narcotics would be destroyed.
This is the type of conclusory language that the supreme court has determined is inadequate to support a nighttime authorization. There are no facts on the record to establish that appellant was actively trafficking on the premises, that pedestrian traffic existed that would impede a daytime search, or that the other person in the apartment was aware of the drugs or would destroy them. We conclude, therefore, that there was no reasonable basis for a nighttime authorization and reverse the district court’s order refusing to suppress evidence recovered from appellant’s apartment.
Moreover, from this record, we are unable to determine if the drug evidence recovered from appellant’s garages also must be suppressed. The purpose of the additional showing for nighttime execution or unannounced entry is to
prevent[ ] the unnecessary destruction of property and mistaken entry into the wrong premises, protect[ ] against unnecessary shock and embarassment and decreas[e] the potential for a violent response.
Wasson, 615 N.W.2d at 319-20 (citation omitted). The protection, largely based on privacy principles, extends to every building within the curtilage of the dwelling to be searched. Garza, 632 N.W.2d at 639. The curtilage generally includes any area so “immediately and intimately” connected with the dwelling that a person would expect to have a right of privacy. Id. We therefore remand the issue of suppression of the drug evidence seized from the garages to determine whether the garages are within the curtilage.
Affirmed in part, reversed in part, and remanded.
 Wasson challenged only the unannounced entry portion of the search warrant, although the warrant also included a nighttime exception. Both exceptions to the standard search warrant require a showing of circumstances that would not permit a successful execution of the warrant unless the unannounced entry or nighttime exception are permitted. See State v. Lien, 265 N.W.2d 833, 838-40 (Minn. 1989).