may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jovan Perez Davis,
Ramsey County District Court
File No. K2033920
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
David T. Redburn, Redburn Law, 8525 Edinbrook Crossing, Suite 207, Brooklyn Park, MN 55443 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of fifth-degree controlled-substance crime, appellant Jovan Perez Davis argues that the warrant for the search of his residence illegally authorized an unannounced entry because the application relied on past arrests for crimes involving weapons, the most recent of which was five years old, and provided no other articulable suspicion to support the no-knock provision. We affirm.
On September 11, 2003, Investigator
Mark Ganley applied for a warrant to search Davis’s residence and
vehicles. The supporting affidavit
stated: A confidential reliable informant
(CRI) informed Investigator
The affidavit listed the crimes for
The affidavit requested authorization for an unannounced entry for the following reasons:
Your affiant’s past experience in
executing narcotic search warrants has shown that attempts are inevitably made
by drug traffickers and/or users, to destroy evidence and/or interfere with
executing officers when pre-announced presence of the police is known. Your affiant knows that [
A search warrant authorizing an
unannounced entry was issued and executed.
During the search of
Davis was charged with possession of marijuana in violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2002). Davis moved to suppress the marijuana arguing that the search warrant’s no-knock provision was unconstitutional. The district court denied the motion.
Davis waived his right to a jury trial, and the parties submitted the case to the district court for decision based on stipulated facts. The district court found Davis guilty as charged. This direct appeal challenging the conviction followed.
When the material facts are undisputed, an appellate court independently reviews whether a no-knock entry was justified. State v. Botelho, 638 N.W.2d 770, 777 (Minn. App. 2002).
An “[i]nquiry into the need for an
unannounced entry is included in the reasonableness inquiry . . . under the
Fourth Amendment of the U[nited] S[tates] Constitution.” Garza v. State, 632 N.W.2d 633, 638
(Minn. 2001) (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct.
1914, 1918 (1995)). The United States
Supreme Court “has rejected a blanket exception to the knock-and-announce rule
. . . for all felony drug cases.” State v. Barnes, 618 N.W.2d 805, 811
(Minn. App. 2000) (citing Richards v. Wisconsin, 520
“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.”
. . . “[T]his showing [required under the reasonable suspicion standard] is not high, but the police should be required to make it whenever the reasonableness of a no knock entry is challenged.”
State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (quoting Richards, 520 U.S. at 394-95, 117 S. Ct. at 1421). “[B]oilerplate language in the search warrant affidavit does not satisfy the requirement for a showing, particular to the search at issue, that announcing would be dangerous or allow the destruction of evidence.” Wasson, 615 N.W.2d at 320.
Here, the search-warrant application
states that, within the preceding two days,
In Wasson, the supreme court held that an unannounced entry was justified when the search warrant affidavit stated that weapons were likely present in the house given that numerous weapons were seized from the exact location just three months previously and that, since execution of the earlier warrant, the homeowner had been willing to facilitate the sale of drugs at his residence to at least one person. 615 N.W.2d at 320-21. Citing State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998),Davis argues that this case is distinguishable from Wasson because the information about his arrests was stale. The issue in Souto was the existence of probable cause to issue a search warrant for the defendant’s residence. Id. at 747. To establish probable cause, “[t]he proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Id. at 750 (quotation omitted). A lesser showing is required to satisfy the reasonable-suspicion standard than to show probable cause. See Barnes, 618 N.W.2d at 811-12 (discussing showing required to satisfy reasonable-suspicion standard and rejecting argument that specific information about conditions inside the house was required because that would virtually impose a probable-cause standard on no-knock provisions). “In other contexts this court has defined reasonable suspicion as something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue.” Wasson, 615 N.W.2d at 320.
the unannounced-search context, when the officer presents a request for a
no-knock warrant to a magistrate, “we may accept evidence of a threat to
officer safety of a less persuasive character” than would have justified an
officer in acting on his own without a warrant.
Wasson, 615 N.W.2d at 321; see also State v.
In sum, the officer who prepared the search-warrant application had information about Davis’s arrests, and nothing in the record indicates that Davis had not been arrested as the application indicates. Information that Davis had been arrested four times over a period of years and that three of the arrests involved potentially violent offenses is not just boilerplate language. Rather, it is specific information about Davis that justified a reasonable suspicion that the officers who executed the warrant faced a potentially dangerous situation. The facts stated in the search-warrant application were sufficient to support a reasonable suspicion that an unannounced entry was justified.