IN SUPREME COURT
Court of Appeals
Filed: August 3, 2006
Office of Appellate Courts
Richard Lowell Bourke,
S Y L L A B U S
The district court did not err in admitting evidence obtained as a result of a warranted, nighttime search of appellant’s property where the application for the warrant established reasonable suspicion that a nighttime search was necessary.
Heard, considered, and decided by the court en banc.
O P I N I O N
Richard Lowell Bourke was found guilty of conspiring
to manufacture methamphetamine and sentenced to 72 months in prison. Bourke argues that the district court erred
in denying his motion to suppress the evidence seized during the nighttime
search of his property. Bourke contends that
the search warrant application did not contain specific facts to justify a
nighttime search as required by the constitution and Minn. Stat. § 626.14
(2004). The court of appeals affirmed
the district court. State v. Bourke, No. A04-1121, 2005 WL 1514324, at *2 (
Isanti County Deputy Sheriffs Lisa Lovering and Robert Bowker drove to Richard Lowell Bourke’s property at approximately 8:00 p.m. on November 7, 2002. A bonding agent had contacted Lovering to inform her that William Kelly Brown, who was wanted on an outstanding felony warrant, was staying in the pole barn on Bourke’s property. Lovering knocked on Bourke’s door and Bourke answered. While Lovering spoke with Bourke, Bowker walked to the pole barn and looked through an uncovered window. Inside the pole barn, Bowker saw two men, guns in a gun rack, syringes, pipes, small straws, a fan, and a woman wearing latex gloves. Bowker thought methamphetamine was being manufactured inside the pole barn and that one of the men was Brown, and he shared these suspicions with Lovering when she finished talking with Bourke at the house and joined Bowker near the pole barn.
Although Bourke told Lovering that he had not seen Brown for about a week, Bourke told the officers that he would let them into the pole barn, which was located about 200 feet from Bourke’s residence. The officers testified that as Bourke was opening the door of the pole barn, he yelled out, “cops” or “the cops are here.” After seeing the three people in the barn gather up items and head toward the stairs to the barn loft, Bowker entered the barn, ordered all three people to the ground, and Bourke fled the scene.
Later that night, Isanti County Sheriff’s investigator Chris Janssen applied for a warrant to search Bourke’s residence and “any and all outbuildings located on [Bourke’s] property.” The application included a list of a number of items associated with the manufacture of methamphetamine that Janssen believed would be found on the property, and the attached affidavit established Janssen’s familiarity “with various methods of processing, ingesting, and distributing controlled substances, as well as equipment and paraphernalia associated with these processes.” The affidavit recited the factual events of the evening as follows:
On 11/7/2002 at 2020 hours Deputies Bowker
and Lovering of the Isanti County Sheriff’s Office responded to the residence
of [Bourke] in an attempt to locate [Brown].
Brown had an active felony warrant for controlled substance from
The application then indicated, “A
nighttime search is (
not) necessary (including the hours of 8:00 p.m. to 7:00 a.m.)
to prevent the loss, destruction or removal of the objects of the search
because: of the lateness of the hour and the possible destruction of
evidence.” The application requested
that the warrant be issued to allow the search to be conducted “in the daytime
or nighttime.” The district court judge signed
the warrant, which was dated November 7, 2002.
The receipt and inventory of the search, filed the following day,
indicated that the search was conducted at 11:30 p.m. on November 7, and listed
a number of weapons and assorted drug paraphernalia that had been found on
Bourke was arrested approximately 100 yards from his residence after a State Patrol helicopter located him. Bourke was charged by complaint on November 8, 2002, for both manufacturing and conspiring to manufacture a controlled substance in the first degree. Prior to trial, Bourke made a motion to suppress all of the evidence obtained in the search, arguing that there was a “lack of sufficient information provided to the magistrate to justify the issuance of [a warrant] authorizing a nighttime search.” The district court denied Bourke’s motion in a written order.
After a bench trial on stipulated facts, the district court found Bourke guilty of conspiring to manufacture methamphetamine in violation of Minn. Stat. § 152.096, subd. 1 (2004). Bourke was sentenced to 72 months in prison. The court of appeals affirmed the district court’s denial of Bourke’s suppression motion. Bourke, 2005 WL 1514324, at *2. We granted Bourke’s petition for review and now affirm.
argues that the nighttime search of his property violated United States and
Minnesota constitutional protections against unreasonable searches,
and also violated Minn. Stat. § 626.14. We have noted that the question of whether a
nighttime search is authorized is the subject of statutory regulation in
Minnesota Statutes § 626.14 requires that before the court issues a warrant for a nighttime search, it must first determine that the 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.” The statute thus contains the reasons for which the court could find necessity to authorize a search at night. The statute, however, does not set forth the showing required to sustain a conclusion of necessity.
In Lien, we said that “[w]hat the
Beyond the general statement in Lien that the statute requires “some showing,” we have not articulated the quantum of proof required for the authorization of a nighttime search under the statute. We now hold that the statute requires at least a finding that there is reasonable suspicion to believe a nighttime search is necessary to preserve evidence or to protect officer or public safety.
The United States Supreme
Court has noted that in the context of unannounced entries, the reasonable
suspicion standard “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” such entries.
“The policy behind
prohibiting nighttime searches in the absence of specific judicial
authorization in the warrant is to protect the public from the ‘abrasiveness of
official intrusions’ during the night.” State v. Stephenson, 310
Requiring that a
judicial officer conclude that there is at least a reasonable suspicion that
the warrant needs to be executed at night, in addition to finding probable
cause to issue the warrant itself, recognizes the legislature’s policy judgment
in providing a statutory protection against nighttime intrusions. At the same time, the reasonable suspicion
showing is “not high.” Richards, 520
We hold that before a nighttime search is authorized under section 626.14 the application for the warrant must establish at least a reasonable suspicion that a nighttime search is necessary to preserve evidence or to protect officer or public safety.
We turn next to a
review of the application for a warrant to search Bourke’s property to
determine whether it made the reasonable suspicion showing. When reviewing pretrial orders on motions to
suppress evidence, we independently review the facts and determine, as a matter
of law, whether the district court erred in its ruling. State
v. Harris, 590 N.W.2d 90, 98 (
On review, we give
“great deference to the issuing judge’s determination” of probable cause for a
search warrant. State v. Jones, 678 N.W.2d 1, 11 (
The search warrant
application and supporting affidavit stated, “A nighttime search is (
(including the hours of 8:00 p.m. to 7:00 a.m.) to prevent the loss,
destruction or removal of the objects of the search because: of the lateness of
the hour and the possible destruction of evidence.” Bourke argues that the search warrant
application’s “unsupported contention that evidence might be destroyed is the
precise type of boilerplate language found to be insufficient by both the
United States Supreme Court and
Bourke is correct that “boilerplate language” has been found to be insufficient to justify a warrant under the reasonable suspicion standard. Cf. Richards, 520 U.S. at 394 (rejecting Wisconsin Supreme Court’s blanket exception to reviewing reasonableness of no-knock provision in search warrant for felony drug investigations and requiring review of the facts and circumstances of the particular search); Garza v. State, 632 N.W.2d at 638 (requiring a “particularized showing of dangerousness, futility, or destruction of evidence” and holding that mere statement in “general terms * * * with no factual nexus to particularized facts” was insufficient). The search warrant application for Bourke’s property, however, provides more than mere boilerplate language to justify a nighttime search. As the court of appeals correctly noted, “several reasonable inferences to support a nighttime search” are apparent from the information provided. Bourke, 2005 WL 1514324, at *2. The court of appeals listed several inferences that could have been drawn from facts presented in support of the search warrant about Bourke and his premises:
[Bourke] was at large and could destroy evidence in the barn before morning; * * * [Bourke] and his co‑defendants were in the process of manufacturing methamphetamine which could cause explosions, thus destroying evidence and property, and putting human life in peril; * * * and * * * the premises was a crime scene and evidence needed to be preserved and catalogued.
We agree with the
court of appeals that the above inferences were reasonably drawn from the
application. The facts presented
indicated that Bourke opened the door to the barn and then fled the scene while
the police entered the pole barn to apprehend three suspects inside. The investigator averred that the pole barn
was the site of methamphetamine production.
As far as the issuing judge knew, Bourke was at large. There is nothing unreasonable in concluding
that Bourke, then a suspect, would want to destroy the evidence of the methamphetamine
production on his property if he were given the opportunity. Given our “great deference to the issuing
judge’s determination,” Jones, 678
N.W.2d at 11, and “the
preference to be accorded warrants,” Harris,
589 N.W.2d at 791 (internal quote marks omitted), those facts alone
establish a reasonable suspicion that the nighttime search was “necessary to
prevent the loss, destruction, or removal of the objects of the search.”
We hold that, under our deferential standard of review, and given the facts and reasonable inferences available to the issuing judge in Bourke’s case, the state met its burden of showing that there was at least a reasonable suspicion that a nighttime search of Bourke’s property was necessary under Minn. Stat. § 626.14 to preserve evidence.
We turn next to Bourke’s constitutional argument. Bourke argues that nighttime searches are unreasonable under the Fourth Amendment unless the warrant application presents particularized facts showing that there is a reasonable suspicion that the search needs to be conducted in the nighttime. The essence of Bourke’s argument is that, similar to no-knock searches, the Fourth Amendment requires that the police have a reasonable suspicion that a nighttime search is necessary under the circumstances. Cf. Richards, 520 U.S. at 394 (“[P]olice 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.”). Bourke bases his argument on the assertion that at the time of the ratification of the Fourth Amendment, reasonable searches were “those that were conducted during daytime hours and after law enforcement officials had knocked and announced their presence and authority to search.” Thus, Bourke concludes that “a nighttime search should only be conducted if a neutral magistrate first finds it reasonable to do so.”
Because we have held that Minn. Stat. § 626.14 requires a showing that is at least as high as Bourke’s proposed Fourth Amendment requirement and because, as discussed supra, we conclude that the statute was not violated, we decline to decide the constitutional issue raised by Bourke.
 The precise timing of Bourke’s arrest is unclear, and it may have occurred before, during, or after the search of his property.
 The Fourth Amendment to the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 10 of the Minnesota Constitution has nearly identical language to the Fourth Amendment of the United States Constitution.
 Minnesota Statutes § 626.14 states:
A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public. The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.
The parties did not raise any potential separation of powers issues with Minn. Stat. § 626.14. Accordingly, we do not address this question.
 Lien also addressed a “no-knock” entry by officers in possession of
a search warrant. 265 N.W.2d at
836-39. In Lien, we appear to have stated a blanket rule authorizing
“no-knock” search warrants whenever the affidavit alleged “that the dwelling is
being used as an outlet or a warehouse for a drug business.”
 The parties do not argue that the statute requires more than reasonable suspicion. Because the issue was not directly advanced in this case, we leave for another day the question of whether the statute requires more than a finding of reasonable suspicion of necessity.
 We note that in the
constitutional context of a “no-knock” entry, the Supreme Court has assessed
all of the circumstances confronting the officers at the time of entry in
determining whether there was reasonable suspicion sufficient to make an
unannounced entry. See Richards, 520
 Because we have concluded that
the nighttime search was proper under the statute, we do not reach the question
of whether suppression of evidence seized in execution of an improperly issued
nighttime search warrant is an appropriate remedy. See
Lien, 265 N.W.2d at 840-41 (refusing
to suppress evidence even though a nighttime search warrant was not authorized
under Minn. Stat. § 626.14). Regarding
Bourke’s constitutional argument, we note that the Supreme Court has recently
determined that the Fourth Amendment does not automatically require the
exclusion of evidence obtained as a result of an improper no-knock search.