This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William Daniel Winter,
Filed June 7, 2005
County District Court
Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul,
MN 55101-2134; and
Gaertner, Ramsey County Attorney, Colleen A. Timmer, Assistant County Attorney,
50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Voss, Voss & Hickman, P.A., 527
Marquette Avenue South, Suite 1050, Minneapolis,
MN 55402 (for appellant)
Considered and decided by Stoneburner,
Presiding Judge, Willis,
Judge, and Crippen,
P U B L I S H E D O P I N I O N
On appeal from his conviction of fifth-degree
possession of methamphetamine, appellant argues that the search of his home was
constitutionally invalid because it occurred at night and the police only had a
daytime search warrant. Because the
record shows that the search was not at nighttime, we affirm.
Officer John Linssen received
information from a homeowner who suspected that one of his tenants, appellant William Winter,
was selling narcotics, in part because of the large amount of traffic coming
and going at the house. The homeowner,
who also lived in the house, invited Officer Linssen into his home, where the officer
found evidence suggestive of illegal drug activity, including altered plastic
bags. Officer Linssen conducted surveillance on the
house and observed a large number of nighttime visitors who only stayed for a
short time. He also noticed that a very
large dog, possibly a Rottweiler, lived at the house. During his investigations, Officer Linssen learned
that appellant had a criminal record, which included assault, fleeing from
police, and arrests for narcotics offenses.
on his observations, Officer Linssen
applied for a no-knock, nighttime search warrant. He explained in his affidavit that the
nighttime warrant was necessary to “prevent the loss, destruction or removal of
the objects of the search or to protect the searchers or the public.” Officer Linssen went on to explain that most narcotics
trafficking occurs at night, that the involved parties are often armed with
guns, and that the searching officers could more easily and safely approach the
house at night. He specifically
indicated the nighttime search was necessary because appellant has a history of
assault and fleeing from police and because a large dog at the house might bark
to alert appellant or even attack the officers.
prepared the search warrant but inadvertently omitted the no-knock and
nighttime search language from the actual warrant.
Officer Linssen and the
other officers arrived at the house wearing police uniforms and raid gear. Officer Linssen testified that they arrived
sometime between 7:45 p.m. and 8:00 p.m. and that the search began shortly
before 8:00 p.m. The search warrant
indicates that it was executed at 8:00 p.m.
The district court’s finding of fact, supported by this and other evidence,
states that the search occurred between 7:40 and 8:00 p.m. The officers forcefully entered the house
without knocking when appellant ran inside from the front yard. Officers spent roughly three and a half hours
conducting the search, and they found methamphetamine.
ultimately charged with fifth-degree possession of methampheta-mine. In Rasmussen proceedings, the district court concluded that
the warrant was valid because the omission of the no-knock and nighttime
language was a technical statutory violation.
Appellant proceeded with a Lothenbach
trial and was convicted of the offense.
Following sentencing for the offense, he appeals his conviction.
D E C I S I O N
On appeal from a
district court’s suppression decision, when the facts are undisputed, we
independently determine whether the evidence requires suppression as a matter
of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
A district court should suppress the evidence acquired from a search
when the search warrant was invalid. Minn.
State Patrol Troopers Ass'n ex rel. Pince v. State, Dep’t
of Pub. Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (citing Wong Sun v. United States, 371 U.S.
471, 484, 83 S. Ct. 407, 415-16 (1963)), review
denied (Minn. May 24, 1989). To be
valid, a “search warrant may be served only between the hours of 7:00 a.m. and
8:00 p.m. unless the court determines on the basis of facts stated in the
affidavits that a nighttime search outside those hours is necessary.” Minn.
Stat. § 626.14 (2002). When the
police initiate a search during the day and the search continues into the
night, the search is a proper daytime search and does not need a nighttime
search warrant. State v. Stephenson, 310 Minn. 229, 233, 245
N.W.2d 621, 624 (1976).
In Minnesota, the execution
of a daytime warrant at night may be a statutory error, not a constitutional
violation. State v. Lien, 265 N.W.2d 833, 840 (Minn.
1978); see also State v. Goodwin,
686 N.W.2d 40, 44 (Minn. App. 2004) (concluding that search executed at 6:58
a.m. with daytime warrant rather than nighttime warrant was technical violation
of statute not requiring suppression of evidence), review denied (Minn.
Dec. 14, 2004). The inquiry into the
validity of the warrant may nonetheless have a constitutional dimension because
“a nighttime search of a home involves a much greater intrusion upon
privacy.” Lien, 265 N.W.2d. at 839-40.
In determining that the execution of a daytime warrant at night was not
a constitutional violation, the Minnesota Supreme Court noted the significance
of the search occurring at a reasonable hour when most people were awake and
when activity in the home was observable.
Id. at 841. Based on its conclusion that errors of this
nature are statutory and technical, the court determined that the exclusionary
rule did not necessarily apply. Id.
Appellant does not
challenge the district court’s conclusion about the no-knock portion of the
search warrant, but limits his appeal to whether the search warrant was valid
for a nighttime search. His argument is
demonstrates that the search was in fact a daytime search. The officer’s testimony indicates that the
search began between 7:45 and 8:00 p.m.
Because a search that begins during the statutory period is considered a
daytime search even if it ends at nighttime, this evidence supports the
conclusion that the search was a daytime search.
to the search warrant itself, which indicates that it was executed at 8:00 p.m. He insists that a search that begins at 8:00
p.m. is somehow outside the parameters of a valid daytime search. This contention is without merit. The statute provides that execution of a
warrant, to be valid, must occur between the hours of 7:00 a.m. and 8:00
p.m. The plain meaning of this statutory
language is inclusive of a search begun at 8:00 p.m.; the statute does not
require that a warrant be served before 8:00 p.m.
Moreover, were we
to agree with appellant’s proposition that a search begun at 7:59 p.m. is
valid, but one begun a moment later is invalid, we nonetheless conclude that
the mistake is merely technical in nature and not constitutional. The facts of this case are comparable to
those in Lien. The police officers arrived at a reasonable
hour when most people would still be awake.
They observed appellant outside of his home, awake and apparently
clothed. They did not roust him out of
bed and force him to stand outside in his nightclothes while they
searched. Indeed, nothing in the facts
of the case suggests that the intrusion into his home at 8:00 p.m. was more
intrusive than an earlier search would have been. The search has no constitutional dimension,
and the mere statutory violation does not require evidence obtained from the
search be excluded.
determine that the search was lawfully conducted in the daytime without the
need for a nighttime search provision, we need not examine whether the officer
had established a reasonable, articulable suspicion for the nighttime search
provision in the warrant application.