This opinion will be unpublished and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

A04-1729

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kerry Lee Heyer,

Appellant.

 

 

Filed August 23, 2005

Affirmed; motion denied
Forsberg, Judge
*

 

Itasca County District Court

File No. K2-03-2032

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street NE, Grand Rapids, MN  55744 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Kerry Lee Heyer appeals from his conviction of first-degree controlled substance offense, arguing that the district court erred in denying his motion to suppress evidence discovered in plain view during a warrantless entry into the trailer home where he resided.

            Because the officers, who were attempting to execute an arrest warrant, not only had a reasonable belief but also had probable cause to believe that appellant was inside the trailer, we affirm.

D E C I S I O N

            This court reviews the district court’s findings of fact concerning a suppression order for clear error, but reviews the issue of probable cause de novo.  State v. Lee, 585 N.W.2d 378, 382-83 (Minn. 1998).

            A police officer armed with an arrest warrant has limited authority to enter the suspect’s home to make an arrest if the officer has “reason to believe the suspect is within.”  Payton v. New York, 445 U.S. 573, 602-03, 100 S. Ct. 1371, 1388 (1980).    According to LaFave, “it is generally accepted that the Payton ‘reason to believe’ requirement involves something less than the traditional probable cause standard.”  3 Wayne R. LaFave, Search and Seizure § 6.1(a), at 265 (4th ed. 2004) (stating in footnote that every circuit, except the Ninth, has treated the “reason to believe” requirement as something less than probable cause).  Appellant urges this court to require police to have probable cause, rather than a reason to believe, that the suspect is inside his or her residence before making an unauthorized entry to execute an arrest warrant.  In this case, however, we conclude that the officers had not only a reason to believe that appellant was in the trailer, but also probable cause. 

            “Probable cause” means that there is a “fair probability” based on a totality of circumstances that contraband or evidence of a crime will be found in a particular place.  State v. Papadakis, 643 N.W.2d 349, 356 (Minn. App. 2002).  “‘The test of probable cause to arrest is whether the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.’”  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (quoting State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996)).  Although Pappadakis dealt with whether there was probable cause for a search warrant and Kier with probable cause to arrest for DWI, these cases provide a standard to judge whether police have probable cause to believe a suspect would be found in his or her home:  the officer must have an honest and strong suspicion that the suspect is in his or her residence, based on objective facts and the totality of the circumstances.

            Here, the officers relied on the following facts and circumstances:

            (1)       an anonymous citizen approached Itasca County Deputy Sheriff Darin Shevich and asked him check whether certain boats and cars located at the Sherman property were stolen, and told Shevich that appellant lived in a trailer on the Egan property;

            (2)       although a check of cars and boats at the Sherman property did not reveal the items to be stolen, some of the property was registered to appellant and his mother;

            (3)       Shevich was acquainted with appellant and thought he knew what appellant looked like;

            (4)       Shevich and Leech Lake Tribal Conservation Officer Michael Fairbanks went to the Egan property where they saw a trailer;

            (5)       Shevich saw a man who he thought was appellant run when the two officers approached;

            (6)       the man disappeared around the trailer and could not be seen by the officers; the door to the trailer was on the side of the trailer away from the direction of the officers’ approach;

            (7)       when Shevich asked Karen Egan, appellant’s girlfriend, if appellant was in the trailer, she did not deny that the person seen was appellant, but asked instead if the officers had checked another residence on the property;

            (8)       Shevich knew there was an outstanding arrest warrant for appellant and that this would make it likely that appellant would flee from the officers;

            (9)       Egan attempted to lead the officers away from the trailer, although it was clear that appellant could not be at the other residence, as she suggested; and

            (10)     Egan began screaming and attempting to block the door of the trailer when Shevich approached it and had to be subdued by the officers.

            Under these facts and circumstances, we conclude that the officers could form an honest and strong suspicion that appellant was in the trailer.  Although the officers may not have had probable cause to believe they would find appellant in the trailer when they first entered the Egan property, the subsequent events, particularly the flight of the man Shevich identified as appellant and Egan’s evasive or obstructive behavior, would permit the officers to infer that appellant was in the trailer.

            The district court’s findings of fact are supported by the record and are not clearly erroneous.  If we were to apply the heightened standard of probable cause, rather than a reason to believe, we would conclude that the officers, who were armed with an arrest warrant, had probable cause based on a totality of the circumstances to believe that appellant was in the trailer, and therefore were entitled to make a warrantless entry into the trailer to execute the arrest warrant.  The district court did not err by refusing to suppress the evidence.

            The state has moved to strike essentially all of appellant’s reply brief.  In light of our decision here, we deny the state’s motion.

            Affirmed; motion denied.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.