may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Vernon Russell,
Filed March 2, 1999
Toussaint, Chief Judge
Dissent, Willis, Judge
Hennepin County District Court
File No. 98004369
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Holtan, Judge.[*]
After a bench trial on stipulated facts appellant Michael Russell was convicted of a controlled substance crime in the second degree. Russell challenges the district court's denial of his motion to suppress evidence seized pursuant to a no-knock, nighttime search warrant. Russell argues that the no-knock and nighttime provisions of the warrant were not supported by a sufficient showing of particular exigent circumstances. Because the district court did not err in denying Russell's motion to suppress the seized evidence, we affirm.
Russell argues that because there are insufficient facts in the police officer's affidavit to support the application for a no-knock and nighttime warrant, the district court erred when it denied his motion to suppress the evidence seized during the execution of the search warrant.
A. The no-knock provision of the warrant
The United States Supreme Court has recently held:
In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard - as opposed to a probable cause requirement - strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421-22 (1997) (emphasis added); see State v. Martinez, 579 N.W.2d 144 (Minn. App. 1998), review denied (Minn. July 16, 1998) (interpreting Richards).
[A]lthough a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.
Wilson v. Arkansas, 514 U.S. 927, 936, 115 S. Ct. 1914, 1919 (1995). The flexible reasonableness requirement of the Fourth Amendment "should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. 514 U.S. at 934, 115 S. Ct. at 1918.
Based on the following, the signing judge in this case concluded that there were sufficient facts in the police officer's affidavit to support a no-knock warrant: (1) the officer received complaints about narcotics dealings from the owner of the suspected apartment building, as well as from a neighbor, and a confidential reliable informant (CRI); (2) the CRI made a controlled buy of crack cocaine from the residence under the police officer's supervision; (3) at the time of the controlled buy, the officer observed several males he knew to be crack cocaine addicts directly around the area of the apartment building; and (4) the officer's training and experience led him to believe that illegal drugs were being sold from the apartment in question.
In the warrant application, the officer requested permission to make an unannounced entry because crack cocaine is easily disposed of by being thrown from the premises or flushed down a toilet or sink, and an unannounced and rapid entry would minimize this risk.
The officer's suspicion that knocking and announcing the executing officers' presence would inhibit the effective investigation of the suspected crime by allowing the destruction of the evidence was reasonable because the object of the search is easily disposed of. Therefore, in our independent review of the facts, we conclude that the evidence need not be suppressed.
B. The nighttime provision of the warrant
A search warrant may only be executed between 7:00 a.m. and 8:00 p.m. unless the court determines that a nighttime search is "necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public." Minn. Stat. § 626.14 (1998). The Minnesota Supreme Court has interpreted the statute to require a showing that the "warrant can only be executed successfully in the nighttime." State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978).
In his affidavit, the police officer stated that the apartment building was isolated and that approaching the building under the cover of darkness would prevent a warning to the suspect that they were approaching. Because the building was in an area where police officers would be observed approaching, we conclude that in order to prevent the disposal of the crack cocaine and to protect the officers, this search could only be executed successfully at nighttime. Furthermore, this search was conducted between 9:00 and 10:00 p.m. when most people are still awake, and is thus not the type of search that our statutory rule against nighttime execution of search warrants is mainly designed to prevent. See Lien, 265 N.W.2d at 841 (search between 9:00 and 10:00 p.m. is not a nighttime intrusion likely to result in "people being roused out of bed and forced to stand by in their night clothes while the police conduct the search," which the prohibition against nighttime execution of searches is primarily designed to prevent). Therefore, the evidence need not be suppressed.
WILLIS, Judge (dissenting)
I respectfully dissent. I find this case to be in all relevant respects indistinguishable from our recent holding in State v. Martinez, 579 N.W.2d 144 (Minn. App. 1998), review denied (Minn. July 16, 1998). In Martinez, we held that the no-knock provision in a search warrant violated the defendants' constitutional rights because the officer's affidavit failed to articulate reasons justifying the need for an unannounced entry that were particularized to the defendants. Id. at 147-48. We noted that as a result of the United States Supreme Court's decision in Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997), there cannot be a blanket rule permitting no-knock searches based solely on evidence that a home is suspected to be an outlet for drug sales. Martinez, 579 N.W.2d at 148.
Here, the officer's affidavit described the basis for his suspicion that the defendant's home was an outlet for the sale of crack cocaine and requested permission to make an unannounced entry because the drug is easily disposed of. The search warrant application and supporting affidavit in Martinez also claimed that an announced entry was necessary to prevent the loss, destruction, or removal of the objects of the search. Id. at 147. Martinez involved cocaine and heroin, id. at 145, and this case involves crack cocaine. To the extent that the majority opinion here can be read to distinguish Martinez on the ground of the relative ease of disposal of the drugs involved in the two cases, I think it is a distinction without a difference. I would reverse the district court on the ground that there was insufficient evidence showing the need for an unannounced entry under these particular circumstances.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.