This opinion will be unpublished and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
Filed August 15, 2006
Affirmed; motion denied
Ramsey County District Court
File No. KX-05-1479
Mike Hatch, Attorney General,
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Ass’t County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent);
John M. Stuart, State Public
Defender, Davi E. Axelson, Assistant Public Defender,
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
This is an expedited appeal from a conviction for third-degree controlled substance offense in violation of Minn. Stat. § 152.023, subd. 1(5) (2004). Appellant Roosevelt Hunter challenges the no-knock provision in the search warrant. He has also filed a motion to strike parts of the respondent’s brief. Because we conclude the no-knock provision was supported by reasonable suspicion, and respondent’s brief does not reference matters outside the appellate record, we affirm appellant’s conviction and deny the motion to strike.
Appellant was convicted of third-degree controlled substance offense for possessing marijuana with intent to sell. Most of the marijuana was seized by police, pursuant to a search warrant, from a car parked in appellant’s garage. Appellant challenges the validity of the no-knock provision in the search warrant.
The search warrant application relied primarily on a recent controlled buy of marijuana that occurred at appellant’s house. The application also cited a November 2003 controlled buy of cocaine from appellant. The application proceeded to list appellant’s criminal record:
1982 [conviction] for Burglary, Simple Robbery, Theft, 1994 Possession of a firearm by a felon attempt to poss. Cocaine, 1995 firearms use in relat[ion] to drug trafficking, 1995 drug trafficking, aid/abet to use of a firearm, and 1996 possess with intent to distribute Cocaine, felon in possession of a firearm.
The search warrant application requested authorization for an unannounced entry, stating it was necessary to prevent the destruction of evidence and protect the safety of the executing officers. The request was based on the affiant’s experience and “based on the aforementioned information contained in the affidavit.”
In the district court, appellant challenged the search warrant on a number of grounds. The Rasmussen hearing testimony and argument focused on appellant’s claim that the warrant was not supported by probable cause, while noting appellant’s challenge to the no-knock provision. The district court denied appellant’s motion to suppress. In ruling on the challenge to the no-knock provision, the district court merely noted that “[d]rugs and guns are pretty interconnected,” and stated that police were in the best position “to assess [or reassess at the scene] whether or not it’s necessary.”
This court independently reviews
whether evidence obtained from a search warrant containing a no-knock provision
should have been suppressed. State v. Wasson, 615 N.W.2d 316, 320 (
standard for evaluating a no-knock provision in a search warrant is articulable
suspicion. Wasson, 615 N.W.2d at 320. To
obtain no-knock authorization, police must show “more than that drugs are
Appellant argues that the search warrant application relies on “boilerplate language” and lacks any particularized showing of a need for no-knock entry. He contends that both the warrant application and the district court’s ruling present generalized assertions regarding the connection between drugs and guns.
court has recognized that Richards requires
a case-specific support for a no-knock provision. State
v. Barnes, 618 N.W.2d 805, 812 (
The warrant application here listed appellant’s prior criminal convictions, which included four convictions, from 1994 to 1996, in which firearms were linked to drug dealing. Although the references are cryptic, they describe the following: (1) felon in possession of a firearm, while attempting to possess cocaine; (2) use of a firearm in relation to drug trafficking; (3) aiding and abetting drug trafficking, while possessing a firearm, and (4) possession of cocaine with intent to distribute and felon in possession of a firearm.
Appellant argues that this criminal
history was too stale to support the no-knock request
Staleness is an issue that generally arises in assessing whether the higher
standard of probable cause, required to support the issuance of a search
warrant, has been met.
Appellant’s 1994-96 offenses do not merely show his past possession of firearms, as he concedes. They also show a connection between his possession of guns and his involvement with drugs. The controlled buys cited in support of the search warrant application showed that appellant was continuing to deal drugs. In the probable-cause context, evidence of an ongoing criminal activity can make otherwise-stale information reliable. Souto, 578 N.W.2d at 750. The affidavit here tends to show some continuity in appellant’s drug-dealing activities, even if it does not establish a continuous drug operation since 1996. But more importantly, the affidavit only needed to provide reasonable suspicion that appellant’s current drug dealing would be connected with the use or possession of firearms. The four prior convictions, although all around ten years old, are more than enough to establish a pattern of drug dealing while in possession of firearms.
The state argues that appellant’s prior convictions were more relevant than they might appear because he was in prison for five years following the convictions. Appellant has moved to strike this reference to testimony at the sentencing hearing, arguing that because the information was not available to the issuing magistrate or the omnibus-hearing judge in considering the no-knock request it should not be considered by this court.
This court’s record is limited to
“the papers filed in the trial court, the offered exhibits, and the transcript
of the proceedings.”
The length of appellant’s prison sentence(s) following his 1994-96 convictions was not stated in the search warrant application and not known to the issuing magistrate, and apparently not available to the omnibus court in ruling on the motion to suppress. Although we do not consider the information in deciding the no-knock issue, we deny the motion to strike.
The final issue is presented by the
Supreme Court’s recent
Our supreme court has the authority
to interpret the state constitution to provide greater protection than the
Affirmed; motion denied.
 Appellant cites the
unpublished decision in State v. Anderson,
No. A03-545 (