This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Vincent Neil Santeramo,
Filed May 17, 2005
Dissenting, Stoneburner, Judge
St. Louis County District Court
File Nos. K0-02-300946 & K9-02-300945
Mike Hatch, Attorney General, Thomas R. Ragatz, Tiernee Murphy, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis
John M. Stuart, State Public
Defender, Karl E. Robinson, Special Assistant State Public Defender, Winthrop
& Weinstine, P.A.,
Craig E. Cascarano,
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In these consolidated appeals, appellants challenge their convictions of controlled-substance crime, arguing that the district court erred by admitting evidence seized during a warrantless search. Because we find that the police had probable cause and that exigent circumstances justified the search, we affirm.
July 21, 2002, Officer Kathleen Sydow and Captain Tom McKusky responded to a neighbor’s
complaint of loud music at appellant Vincent Santeramo’s house in
Based on appellant William Santeramo’s statement, “Hand me the hash” and their observations of a “substantial amount” of what they recognized as marijuana, Officers Sydow and McKusky believed that they had probable cause to enter the house. Officer Sydow opened the door, but appellant Vincent Santeramo pushed it shut from inside the house. With her foot wedged in the closing door, Officer Sydow drew her gun and pushed the door open. Appellant William Santeramo fled from the room and hid in the bathroom, the man smoking the suspected marijuana remained seated in the living room, a third man ran into the kitchen and left the house, and another man was asleep on the couch. Appellant Vincent Santeramo remained in the living room.
Officer Sydow and Captain McKusky secured the premises and called the station for assistance. When additional police arrived, they conducted a protective sweep of the house, and discovered two duffel bags that were later found to contain considerable amounts of several kinds of narcotics.
As a result of this incident, both appellants were
charged with 26 felony counts and two misdemeanor counts of possession of and
conspiracy to possess with intent to sell marijuana, hashish, and several other
illegal and prescription drugs. At a
joint omnibus hearing, both appellants moved to suppress the evidence seized during
the search. The district court denied their
motions to suppress, and appellants submitted their cases to the district court
under the procedure described in State v. Lothenbach, 296 N.W.2d 854 (
The district court found appellant Vincent Santeramo guilty of first-degree possession of methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2(1) (2002), and imposed an 86-month sentence with seven days of jail credit. The district court found appellant William Santeramo guilty of fifth-degree possession of hashish, in violation of Minn. Stat. § 152.025, subd. 2(1) (2002), and imposed a 15-month sentence with credit for 299 days served. Both appellants challenged the search underlying their convictions, and this court consolidated their appeals.
D E C I S I O N
argue that the district court erred by admitting evidence seized during the
warrantless search of appellant Vincent Santeramo’s house. This court reviews de novo the validity of a
warrantless search. State v. Olson,
634 N.W.2d 224, 228 (Minn. App. 2001), review denied (
appellants argue that the police did not have probable cause to enter the house
because the statement, “Hand me the hash,” does not support a strong suspicion
that a crime is being committed. Probable
cause exists when “the facts would lead a person of ordinary care and prudence
to entertain an honest and strong suspicion that the person under consideration
is guilty of a crime.” State v.
Carlson, 267 N.W.2d 170, 173 (
state argues that the officers’ observations establish probable cause that two
felonies were being committed: possession
of hashish and possession of a felony amount of marijuana. Although neither officer testified that she
or he could be certain that the bags observed through the window contained a
felony amount of marijuana, Captain McKusky testified that one of the bags had “a
substantial amount of marijuana” and that “it could have been more” than the
42-gram felony amount. In addition to
their observations of what they believed to be marijuana, Officer Sydow heard appellant
William Santeramo say, “Hand me the hash.” While this statement alone does not support a
strong suspicion that a crime is being committed, we must consider the totality
of the circumstances. See
Appellant Vincent Santeramo additionally argues
that Officer Sydow’s testimony that she heard appellant William Santeramo say,
“Hand me the hash” is not credible. A
district court’s determinations of credibility at an omnibus hearing will not
be overturned unless clearly erroneous. State v. Smith, 448 N.W.2d 550, 555 (
Appellant William Santeramo also argues that the officers’ observations of marijuana do not support probable cause for possession of a felony amount of marijuana. But the district court found that the officers had probable cause to believe that appellants possessed hashish, not that they possessed a felony amount of marijuana. Because the district court did not base its decision on a finding of probable cause that appellants possessed a felony amount of marijuana and because we find that the officers did have probable cause to believe that appellants possessed hashish, we will not address the merits of this argument.
In addition to probable cause that a felony is
being committed, exigent circumstances must be present to justify a warrantless
entry of a residence. Othoudt,
482 N.W.2d at 222. There are two tests
used to determine if exigent circumstance exist: the single-factor test and the totality-of-the-circumstances
test. In re Welfare of B.R.K.,
658 N.W.2d 565, 579 (
The district court found that the officers’
observations justified their warrantless entry because they reasonably believed
that evanescent evidence was in imminent danger of being destroyed. Appellants argue that the officers did not
see any hashish being consumed and that their observation of a man smoking what
they believed to be a marijuana cigarette does not establish sufficient exigent
circumstances to justify the warrantless search. Both appellants cite In re Welfare of
D.A.G., 484 N.W.2d 787 (
Here, the state has advanced a theory of how the hashish that the officers thought was present was likely to disappear. The officers were concerned that the hashish, like the suspected marijuana that they observed being consumed, would be destroyed by consumption. Unlike the officers in D.A.G., the officers here were not under the impression that appellants possessed an amount of hashish large enough to rule out its destruction by consumption. We find the reasoning of the court in D.A.G. inapposite here.
Appellant William Santeramo points out that in Johnson v. United States, the United
States Supreme Court held that police observation of fumes from burning opium
did not justify a warrantless search of a hotel room. 333
Here, the officers observed a man smoking a marijuana cigarette and thereby destroying evidence. More importantly, though, they believed that hashish was on the premises and that, along with the marijuana, the hashish was about to be consumed. We find that the officers’ belief that the hashish was in imminent danger of being destroyed was reasonable, and we conclude that exigent circumstances existed that justified the warrantless entry into appellant Vincent Santeramo’s house.
Because we find that the officers had probable cause that appellants possessed hashish and that exigent circumstances existed justifying the warrantless search, we conclude that the district court did not err by admitting the evidence seized in the warrantless search of appellant Vincent Santeramo’s house.
Because I believe the district court clearly erred in finding that the state proved exigent circumstances justifying a warrantless entry into a private home and in admitting the evidence seized as a result of the warrantless entry, I respectfully dissent.
Neither the district court nor the majority justifies warrantless entry into this home based on imminent destruction of a felony amount of marijuana. The district court and the majority conclude that because officers witnessed one person smoking what looked like a marijuana cigarette and heard someone say “hand me the hash,” the officers “were concerned that [the] hashish . . . would be destroyed by consumption” before they could obtain a warrant.
There are several
In Johnson v. United States, the United States Supreme Court
held that a warrantless entry, arrest and search of a hotel room and its
occupant by federal drug agents violated the Fourth Amendment. 333
[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. . . .
If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.
Other states have analyzed imminent
destruction of drug evidence. I find the
reasoning of the Supreme Court of North Dakota in State v. Ackerman, 499
N.W.2d 882 (N.D. 1993), persuasive. The
North Dakota Supreme Court, citing Johnson and noting the heavy burden
on government to justify invasion of the sanctity of a home, reversed a trial
court’s finding of exigent circumstances based on the strong odor of burning
marijuana, concluding that the officer’s concern about destruction of evidence
was “nothing more than speculation about possibilities and does not demonstrate
exigent circumstances that overcome the presumption of unreasonableness that
attaches to all warrantless home entries.”
Even in a case which upheld a warrantless entry based on an officer’s observation of consumption of suspected methamphetamine, the South Dakota Supreme Court stated that it was only once the officer actually saw the suspect consuming the methamphetamine that exigent circumstances arose. See State v. Hess, 680 N.W.2d 314, 326-27 (S.D. 2004) (affirming warrantless entry based on officer’s observation of immediate consumption of methamphetamine).
Cases from other jurisdictions that uphold exigent circumstances when there is evidence of immediate drug consumption (usually the odor of burning marijuana) have typically relied on additional circumstances demonstrating a certainty or great possibility that the suspect or third persons in the home are aware of police presence. See, e.g. State v. Decker, 580 P.2d 333, 336 (Ariz. 1978) (“After the officer knocked and was refused admittance, there existed a strong probability of imminent destruction of the marijuana.”); Cherry v. Com., 605 S.E.2d 297, 304-05 (Va. Ct. App. 2004) (upholding immediate entry when officer smelled burning marijuana and woman who answered door called to other occupants of house to tell them that the police were there and officer heard “significant movement” behind a makeshift curtain, which he feared indicated occupants behind the sheet were destroying the marijuana); State v. Hughes, 607 N.W.2d 621, 628 (Wis. 2000) (holding exigent circumstances justified entry but holding was based on “an additional and important factor that was not present in Johnson: the suspects here were fully aware of the presence of the police,” and “the only risk of evidence destruction implicated in Johnson is that associated with the burning of the drug in order to consume it, rather than the risk of intentional destruction of the drug in order to avoid its discovery and seizure by the police.”) In the case before us, there was absolutely no evidence that the suspects in the home were consuming hashish or that anyone in the home had been alerted to police presence.
Although other courts
have upheld warrantless entry based on indications of controlled substance
consumption, such cases typically do not reference or discuss Johnson as
it relates to exigent circumstances. E.g.,
Mendez v. People, 986 P.2d 275, 281-83 (
The courts of