This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Sara Jane Thrune,
Otter Tail County District Court
File No. K9-03-2220
Lori Swanson, Attorney General, Kimberly R. Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
David J. Hauser, Otter Tail County Attorney, Otter Tail
John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*
Sara Thrune appeals from convictions of first-degree controlled-substance crime and aggravated robbery and the denial of postconviction relief. Thrune argues that the police lacked reasonable suspicion to request a search warrant authorizing an unannounced entry and that police officers did not adhere to constitutional knock-and-announce principles when they executed the warrant at her home. Because Thrune’s challenge to the warrant on these grounds is presented only through her postconviction claim of ineffective assistance of counsel and the record does not support this claim, we affirm.
A state trooper stopped a vehicle after midnight in November 2003.
Because of peculiar behavior by the
driver and one of the occupants, the trooper requested assistance and sergeant
Kile Bergren arrived. During the stop,
the officers discovered counterfeit
Based on the information he received from the occupants, Bergren applied for a warrant to search Sara Thrune’s trailer home for controlled substances, counterfeit currency, and materials or equipment used to make each. Bergren also requested authorization for a nighttime, unannounced search. The district court issued the warrant.
But the officers did not act on the court’s authorization for a nighttime, unannounced search. At about 2:10 p.m. the same day, Bergren and Deputy James Stewart approached Thrune’s home. The officers were dressed in civilian clothing, wearing jeans, sweatshirts, and orange hardhats. Bergren wore an orange traffic vest, and Stewart carried a notebook. Bergren explained that, because Thrune’s home is some distance from the entrance to the trailer park, they decided to pose as electrical workers to avoid being detected as law enforcement as they approached Thrune’s trailer.
Bergren knocked on Thrune’s door several times. When she came to the door, Bergren stated that they had reports of electrical problems in the area, and he asked her whether her electricity was working. Thrune and the officers dispute what happened next. Bergren and Stewart assert that, after the brief questioning about her electricity, Bergren identified himself and Stewart as police officers with a search warrant, and then they entered the trailer. They contend that after they entered, other officers who had been waiting out of sight drove up to the trailer and also entered. Thrune counters that the officers never identified themselves, but simply handcuffed her when she opened her screen door and backed her into her home as other officers also entered. They did not identify themselves as officers, she claims, until they were in her living room.
Inside the trailer, the officers found methamphetamine, marijuana, and scraps of paper used to produce counterfeit currency. The state charged Thrune with first-degree conspiracy to commit a controlled-substance crime, first- and second-degree controlled-substance crimes, and aggravated forgery. The district court denied Thrune’s motion, which asserted that probable cause did not support the warrant and that the evidence should be suppressed. A jury convicted Thrune of all charges, and the district court sentenced her to 98 months’ imprisonment for the controlled-substance offenses and 12 months’ imprisonment for the forgery offense, to be served concurrently.
Thrune appealed but, at her request, this court stayed the appeal so that she could pursue postconviction relief instead. Thrune’s petition for postconviction relief claimed that she received ineffective assistance of counsel because her trial counsel failed to challenge either the search warrant’s authorization of an unannouncedentry or the officers’ execution of the warrant. The district court denied Thrune’s petition after conducting an evidentiary hearing. It held that the unannounced-entry provision of the search warrant was invalid but that the invalidity was inconsequential because the officers executed the warrant using valid knock-and-announce procedures. Thrune appeals.
D E C I S I O N
The parties dispute which issues are before the court on appeal. The state addresses Thrune’s challenges to
the warrant and its execution through the framework of an ineffective-assistance-of-counsel
claim, which was Thrune’s stated ground for postconviction relief. Thrune contends that this “analysis of an
ineffective assistance of counsel claim is inapplicable as Ms. Thrune did not
raise this issue in her appeal.” But the
only procedural avenue through which we may review Thrune’s warrant argument is
the denial of postconviction relief. Thrune’s pretrial challenge to the
warrant was limited to her contention that probable cause did not support its issuance. Thrune did not challenge in the district
court the unannounced-entry provision of the warrant or the officers’ execution
of the warrant, and this court will not review issues raised for the first time
on appeal. Roby v. State, 547 N.W.2d 354, 357 (
A criminal defendant may
petition the district court for postconviction relief to vacate a judgment,
grant a new trial, or make another appropriate disposition.
To prove ineffective assistance of counsel, an appellant must
establish that her counsel’s representation fell below an objective standard of
reasonableness and that her counsel’s errors affected the outcome of the
proceeding. Strickland v.
Thrune has not met her burden of proving that her trial counsel’s
representation fell below an objective standard of reasonableness. The
failure to challenge the unannounced-entry provision and the officers’
execution of the warrant was reasonable.
Thrune bases her argument that the evidence should have been suppressed
and that her convictions should be reversed on her assertions that the no-knock
provision of the warrant was invalid and that the officers did not comply with
constitutional knock-and-announce requirements. We need not address whether
the postconviction court correctly found that the no-knock provision was
invalid because the officers did not apply the no-knock provision when
executing the warrant. The officers
assessed the situation and found that an unannounced entry was unnecessary. See
State v. Wasson, 615 N.W.2d 316, 322 (
Police officers generally must knock and announce their identity
and purpose before attempting a forcible entry.
Thrune’s argument that the officers did not comport with knock-and-announce
principles while executing the warrant relies primarily on her preferred resolution
of a factual dispute. Thrune contends that
the officers knocked but did not announce, instead rushing into her home as
soon as she opened her door and identifying themselves only once inside. But Bergren and Stewart consistently testified
at trial and at two postconviction evidentiary hearings that they engaged Thrune
in a brief conversation about her electricity while standing outside the home and
that Bergren announced that they were police officers with a search warrant. According to their testimony, after
announcing their identity and purpose, they entered the trailer home and
informed other officers waiting out of sight to enter. The postconviction court found their testimony
to be credible. The record supports the
finding based on that testimony, and we will not reweigh credibility
determinations on appeal. See State v. Sletten, 664 N.W.2d 870,
876 (Minn. App. 2003) (stating that weighing witness credibility is within exclusive
province of factfinder), review denied
Thrune bases her challenge substantially on the officers’ use of
a ruse by posing as electrical workers.
But officers do not need a warrant to approach a home and knock on a
door in hopes of engaging a suspect in conversation. State
v. Alayon, 459 N.W.2d 325, 328 (
Thrune cannot demonstrate that her trial counsel’s failure to challenge the warrant’s authorization of an unannounced entry amounted to ineffective assistance of counsel. Her counsel reasonably chose not to pursue a fundamentally flawed legal argument. The postconviction court therefore properly denied Thrune’s petition for relief.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.