This opinion will be unpublished and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
Antanie Devon Johnson,
Filed August 26, 2003
Robert H. Schumacher, Judge
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134
Jordan S. Kushner, Law Office of Jordan S. Kushner, 636 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Antanie Devon Johnson challenges his conviction of fifth-degree controlled substance crime, arguing that police officers executing the search warrant were commanded to make an announced entry, but failed to do so, and that there was an insufficient basis for an unannounced entry. Because the search warrant, when read as a whole, authorized an unannounced entry based on a reasonable suspicion that the warrant could not otherwise be successfully executed, we affirm.
Based on the observations of a confidential reliable informant, Minneapolis police officer Scott Creighton applied for a warrant to search Johnson's home. According to the affidavit, (1) the confidential reliable informant told Creighton that he had made a controlled buy of marijuana at Johnson's house within the previous 72 hours and that Johnson had handguns; (2) Creighton himself previously searched the same house in June 2002, recovering two handguns; and (3) Johnson had been arrested several times for drug and weapon violations.
Creighton's affidavit included a request for a "no-knock" provision, stating it was necessary because:
Your Affiant's training and experience have shown that persons involved in illegal sales of controlled substances are frequently armed and an unannounced entry would help ensure the safety of the Police Officers entering the residence. Your Affiant also learned from the [confidential reliable informant] that several handguns are being used for protection of the occupants from police and/or "unwants." The seller also has a past arrest history of weapons and 2 handguns were recovered in past search warrant. This helps to slow officers attempting entry from making easy access and allows for time to destroy any controlled substances by flushing or destroying by other means.
The warrant itself states that the district court
finds that the entry without the announcement of authority or purpose is necessary to prevent the loss, destruction, or removal of the objects of said search and to protect the safety of the Police Officers.
In the next paragraph, however, the district court commands the officers to "enter announced." Creighton testified at the omnibus hearing that he had made a typographical error and that the executing officers proceeded under the assumption that an unannounced entry had been approved.
On October 22, 2002, the warrant was executed at Johnson's residence. As officers approached the house, two men were leaving, one of whom attempted to flee. Both were apprehended. Police forced open the door without knocking or announcing their presence. Johnson was found in the basement, subdued, and arrested. One ounce of crack cocaine was discovered on his person and two handguns were found in the house, as well as some marijuana and several thousand dollars in cash.
Johnson was charged with three counts of fifth-degree controlled substance crime. At the omnibus hearing, he challenged the search warrant, based on the language commanding the officers to make an announced entry. The district court denied his motion to suppress, and Johnson submitted the matter on stipulated facts. On January 27, 2003, he was found guilty and sentenced. He appeals from his conviction, alleging a violation of his constitutional rights based on the unannounced entry.
Where facts are not in dispute, this court conducts a de novo review of suppression orders. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). Although police are generally required to knock and announce their authority before executing a warrant, this requirement can be waived upon a showing to the warrant-issuing authority that an unannounced execution is necessary for the successful execution of the warrant. Id. (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)).
To justify an unannounced entry, 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.
Richards, 520 U.S. at 394, 117 S. Ct. at 1421; State v. Botelho, 638 N.W.2d 770, 778 (Minn. App. 2002) (citation omitted). "Reasonable suspicion," a lesser standard than probable cause, is something more than an unarticulated hunch; there must be an objective basis for the suspicion. Wasson, 615 N.W.2d at 320. Drug sales alone are insufficient to permit an unannounced entry, but in Wasson, that fact coupled with the confiscation of weapons from the same premises three months before was enough to justify a reasonable fear for officer safety. Id. at 320-21. An emphasis is placed on alleging "particular circumstances" that distinguish the situation from a mere boilerplate assertion that drug dealers can be violent. Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001).
The affidavit here includes specific references to the presence of handguns and the recent recovery of handguns during a previous search. We conclude that this is a sufficient basis for the officers to reasonably fear for their safety and therefore an announced entry would create a dangerous situation.
Johnson argues that the search warrant here states clearly on its face that entry must be announced and that the officers must adhere to the language of the warrant, not the intent of the issuing judge. Search warrants must be particular in nature in order to give the searcher reasonably definite instructions about the parameters of the search. See United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir. 1976). Although this requirement usually deals with the accuracy of the description of the premises to be searched or the items to be seized, the basic principle is that specificity prevents violations of personal rights. Id. The standard to be used, however, is one of "practical accuracy rather than technical nicety." Id. If the warrant is deficient in some way, it can be cured by reference to the affidavit, if the affidavit is attached to the warrant. State v. Bonynge, 450 N.W.2d 331, 335 (Minn. App. 1990), review denied (Minn. Feb. 21, 1991). The point is to limit the discretion of the searcher while informing the person to be searched what the officer is entitled to take. State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994). While all of these cases deal with the question of accuracy of description of premises or items to be seized, the principles can be extrapolated in this situation.
A review of the warrant and of the issuing court's conclusions makes it clear that an unannounced entry was sought and that the court approved it. The issuing court's conclusions are physically contained on the same page of the warrant as the command to search, making this similar to cases where a defective warrant is cured by reference to an attached affidavit. There is a sufficient basis for the district court's decision not to suppress the evidence because of a technical defect in the warrant.