This opinion will be unpublished and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
Ryan Patrick Gibbons,
Filed January 31, 2006
Concurring specially, Shumaker, Judge
Ramsey County District Court
File No. K2-03-3321
Mike Hatch, Attorney General,
Susan Gaertner, Hennepin County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102-1657 (for respondent)
John M. Stuart, State Public
Defender, Steven P. Russett, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal of conviction for a second-degree controlled substance offense, appellant argues that police who received a call of a domestic dispute at appellant’s apartment and saw appellant’s girlfriend in apparent distress and with possible injuries did not have cause to make a forcible entry into the apartment under either (a) Minnesota Statute § 629.341, or (b) the emergency exception to the warrant requirement. We conclude that the district court improperly applied Minn. Stat. § 629.341 to allow the police to force entry into the apartment, but because the district court properly applied the emergency exception, we affirm.
At approximately 5:00 a.m., on
August 2, 2003,
When the officers knocked on the door and identified themselves, the screaming stopped. After about 30 seconds, the male voice said, “We are fine. You are not coming in. Go away.” The woman made no response. Having heard evidence of an apparent domestic disturbance and based on their experience, the officers did not believe that the occupants were fine. Further, they did not believe that the disturbance would subside if they simply left. Officer Heroux asked the man to step out onto the deck so the officers could see him.
Through the deck window, the officers observed a woman crying. They asked her to step outside onto the deck. The woman, later identified as Melissa Johnson, stepped outside onto an elevated deck. From several steps below, Officer Heroux observed a dark mark under one of Johnson’s eyes. Her cheeks appeared red and swollen. Johnson said that she was fine and did not need the officers’ help. After telling the officers this, she ran back into the apartment.
Officer Heroux understood that some victims of domestic violence in progress say they do not need help when the contrary is true. Johnson’s statement that she did not need help was inconsistent with her demeanor, her apparent injuries, the neighbor’s complaint, and the screaming heard by the officers when they arrived.
Appellant stepped into view behind the sliding glass door. He said that the parties had gotten into a verbal argument and that they did not need help from the police. The officers noticed that appellant had blood on his lip. The officers asked appellant for permission to enter the apartment to check on the welfare of those inside. Appellant refused them entry.
Officer Heroux returned to the front door and told appellant that if he did not open the door, the officers would break it down. Appellant said, “Okay, fine.” But after waiting several minutes, no one came to the door. Officer Heroux reported these facts via radio to his supervisor. The supervisor authorized them to use force if necessary to enter the apartment to check on the welfare of the occupants. After knocking several more times and receiving no response, the officers heard more yelling and screaming, a loud thump, and the sound of breaking glass. Officer Heroux broke the door open using his hip. Once the door was open, Officer Heroux saw appellant standing at the kitchen sink, apparently shoving something down the drain. The officers drew their guns and made a cursory search of the apartment to make sure all occupants were accounted for and all risks were neutralized.
During the cursory search of the apartment, Officer Heroux saw clumps of marijuana in the kitchen sink and large amounts of marijuana lying on the living room floor. Officers also noticed marijuana floating in the toilet. Johnson was found lying on a couch in a back room. After the apartment was secure, Officer Heroux began to collect the clumps of marijuana that were in the kitchen sink. As he dug the clumps of marijuana out of the drain, Officer Heroux discovered that a clump contained a golf-ball size piece of a substance he believed to be methamphetamine. Officers arrested both appellant and Johnson for possession of controlled substances. Appellant was not arrested for domestic abuse.
At a contested evidentiary hearing, appellant moved to suppress the drugs on the grounds that the officers’ entry into the dwelling violated appellant’s constitutional protection against unreasonable searches and seizures. Appellant and Johnson testified that they were engaged in a verbal argument the morning in question. Appellant acknowledged that he had been drinking earlier that night, and that he may have been bleeding from the mouth, but that it was “no big deal.” Appellant denied that the argument was heated, that there was a loud bang, or that any glass was broken. Johnson denied that there was any yelling or screaming after she spoke with officers from the balcony. She agreed that appellant may have been bleeding at the mouth “a little bit” when he presented himself to the officers.
The district court denied appellant’s motion to suppress the evidence, concluding that under Minn. Stat. § 629.341 (2002), an officer may make a warrantless arrest of a person anywhere, even in the person’s residence, if the officer has probable cause to believe that the person has committed domestic abuse within the preceding 12 hours. The district court reasoned that, because the officers had probable cause to believe that appellant and Johnson were engaged in a domestic dispute, Minn. Stat. § 629.341 authorized the officers to enter the apartment without consent. The district court also determined that the police did not need to obtain consent because the situation in the apartment was an emergency. Further, the court held that, once inside the apartment, officers were justified in conducting a cursory search of the apartment, and the drugs were properly seized under the “plain view” exception to the warrant requirement.
In order to preserve an appeal of the district court’s evidentiary ruling, appellant submitted his case to the district court under the procedure described in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of possession of controlled substance in the second degree in violation of Minn. Stat. § 152.022, subds. 2(1), 3(a) (2002), and sentenced him to prison for 58 months and a $1,000 fine, staying the sentence pending appeal. This appeal follows.
When reviewing pretrial orders on
motions to suppress evidence, this court will not reverse the district court’s
factual findings unless they are clearly erroneous. State v.
George, 557 N.W.2d 575, 578 (
Appellant argues that the district court erred in relying on Minn. Stat. § 629.341, subd. 1 (2002) as authorization for the warrantless entry and appellant’s subsequent arrest.
[A] peace officer may arrest a person anywhere without a warrant, including at the person’s residence, if the peace officer has probable cause to believe that within the preceding 12 hours the person has committed domestic abuse, as defined in section 518B.01, subdivision 2. The arrest may be made even though the assault did not take place in the presence of the peace officer.
(Emphasis added.) This court has previously indicated that this
statute “is directed to warrantless arrests,
and does not address warrantless entries or searches.” State v.
Anderson, 388 N.W.2d 784, 786 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). In
What is at issue in this case is not
an arrest for domestic assault, but a warrantless entry into a residence. Following the entry, as in
Under both the Fourth Amendment to
In this case, the district court applied
the emergency exception to support its determination that officers had not
violated the Fourth Amendment. Under the
emergency exception, the police may enter a dwelling without a warrant if they
reasonably believe that a person within is in need of emergency aid. Mincey
Officer Heroux testified that, from his experience with domestic disputes, he did not believe this dispute had ended, and he felt he needed to check further into the welfare of the occupants. The officer had observed Johnson in apparent distress and with possible injuries. When Officer Heroux repeatedly demanded entry and no one came to the door, he became more concerned for the welfare of those inside. After he heard the loud thump and breaking glass, he stated that he was “extremely concerned with what was going on inside that apartment.” After forcing the door open, the officers could not see Johnson, so they searched the apartment to find her. Officer Heroux’s testimony and actions show that he was motivated by a perceived need to render aid or assistance to Johnson, thus meeting the subjective test.
To test whether the officer’s actions meet the objective standard of reasonableness, a court looks at the facts immediately available to the officer to determine whether a “person of reasonable caution” would believe that the action taken was appropriate. Othoudt, 482 N.W.2d at 223. Here, a neighbor had reported that a man and woman were fighting in appellant’s apartment. The couple’s screaming could be heard outside, from 30 to 40 feet away. Johnson was crying and appeared to have a black eye. Although she said that she did not need help, she had then hurried back into the apartment. Appellant also said they did not need help, but he admitted that the two had been arguing and he had a bloody lip. Thus, there were indications of this dispute being of a physical nature. Appellant repeatedly refused entry into the apartment to allow officers to check on the welfare of the occupants. Finally, officers heard more yelling and screaming, a loud thump, and the sound of breaking glass. It is as of that moment—the moment when Officer Heroux finally forced entry into the apartment—that we must determine whether his decision was objectively reasonable. We conclude that based on the facts known by the officer at the moment of entry, a reasonably cautious person would believe that Johnson was in need of immediate assistance, and the forced entry was appropriate.
Appellant argues that there
is no finding indicating that the district court credited the police testimony
that they heard crashing noises after the victim assured officers that she did
not require assistance. Appellant claims
that the court merely notes the discrepancy in its findings of fact, but did
not specifically adopt either version. See Dean v. Pelton, 437 N.W.2d 762, 764
Next, appellant argues that even if the officers heard a thump and breaking glass, Johnson knew that the officers were nearby, yet she did not cry out for help or otherwise indicate that she was being assaulted. Appellant ignores many reasonable explanations for Johnson’s silence, including extreme fright or even unconsciousness. A person of reasonable caution does not require a verbal cry for help from another before acting.
Finally, appellant argues that the
entry was not reasonable because, even if the officer did hear a thump and
breaking glass, he did not immediately break down the door, but first talked it
over with the other officer, yelled out a warning that he was going to kick in
the door, and then waited for 20–30 seconds before entering the apartment. Appellant argues that the officer’s delay in
entering disproves his claim that he believed Johnson was in immediate need of
aid. But the officers in
In this case, at the point in time that Officer Heroux forced entry into appellant’s apartment, it was reasonable for the officers to believe that a person within was in need of immediate aid and assistance. Because we conclude that the officers’ actions were authorized under the emergency exception to the Fourth Amendment warrant requirement, the district court did not clearly err in denying appellant’s motion to suppress.
SHUMAKER, Judge (concurring specially)
I concur in the result reached by the majority, but I believe that Minn. Stat. § 629.341, subd. 1 (2002), also provides a basis for the officers’ entry into appellant’s apartment.
That statute allows, with limitations, a warrantless arrest anywhere upon probable cause to believe domestic abuse has occurred:
Notwithstanding section 629.34 or any other law or rule, a peace officer may arrest a person anywhere without a warrant, including at the person’s residence, if the peace officer has probable cause to believe that within the preceding 12 hours the person has committed domestic abuse, as defined in section 518B.01, subdivision 2. The arrest may be made even though the assault did not take place in the presence of the peace officer.
It is the word “anywhere” that is of particular significance under the facts at issue. If a peace officer has probable cause to believe that a person has committed domestic abuse and that he or she is inside a dwelling, the officer cannot make an arrest without entry into the dwelling. Thus, the word “anywhere” necessarily carries the implication that the officer is permitted to gain the requisite access to make the arrest. If the officer is prohibited from entering a dwelling, then the word “anywhere” is functionally eliminated from the statute.
A presumption that guides courts in ascertaining
legislative intent is that “ . . . the legislature intends
the entire statute to be effective and
certain . . . .”
Words in a statute that have no special definition
or technical meaning are to be given their “common and approved usage.”
In interpreting statutes, courts also consider “the
mischief to be remedied.”
This court previously held that the purpose of this
statute is to permit a warrantless arrest for a domestic assault committed
outside an officer’s presence. State v.
 Minn. Stat. 629.34, subd. 1(c)(1) permits a warrantless arrest when an offense has been committed or attempted in an officer’s presence.