This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1970

 

State of Minnesota,

Respondent,

 

vs.

 

Edward Joseph Bannie,

Appellant.

 

Filed August 15, 2000

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K3-99-1426

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

Earl P. Gray, Suite 1030, Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges his conviction of third-degree sale of a controlled substance.  He asserts that the district court's denial of his motion to suppress was based on the district court's erroneous determinations that (a) officers complied with the knock-and-announce requirement before entering appellant's home to execute a search warrant and (b) the nine-day delay in executing the warrant did not make the information supporting the warrant stale.  We affirm.

FACTS

                On April 20, 1999, Ramsey County issued search warrants for two St. Paul residences, 635 Canton and 647 Canton, and for appellant Edward Joseph Bannie's person.  The warrants were based on information provided by a confidential reliable informant (CRI), who made a controlled buy from Bannie at 647 Canton within 72 hours before the warrant was issued and who informed deputies that he had seen several pounds of marijuana at 635 Canton within the last six months.  Deputy Charles Youngquist determined that Bannie was the owner of both 635 and 647 Canton.

            Deputies executed the warrants at approximately 10:00 a.m. on April 29, 1999.  They knocked on the door at 647 Canton, and Lisa Schneibel answered it.  She informed them that Bannie was using the telephone.  Deputy Youngquist testified that he identified himself to Schneibel and told her that they had a warrant.  According to Deputy Youngquist, he and the other deputies then entered the house.  Schneibel testified that the deputies did not identify themselves and that they rushed past her when she turned to get Bannie.  Officers ordered Bannie off the phone, informing him that they had a warrant.

            At 647 Canton, deputies found approximately 5.6 kilograms of marijuana, separated into baggies; a scale; and $9,750.  No evidence was discovered at 635 Canton.  Bannie was charged with a third-degree controlled substance crime for the sale of marijuana.  He moved to suppress the evidence discovered pursuant to the search warrant, asserting that the warrant was stale when it was executed and that officers did not comply with the knock-and-announce requirement.  The district court denied Bannie's motion.  Bannie then agreed to a bench trial on stipulated facts, and the district court found him guilty of the charged offense.  The district court stayed imposition of his sentence and ordered ten years' probation and 60 days' incarceration.

                                                                 D E C I S I O N

            In reviewing a pretrial decision on a motion to suppress evidence where the facts are undisputed, whether the evidence should have been suppressed is a legal question the appellate court reviews de novo.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  If findings of fact are in dispute, however, the appellate court reviews those findings under a clearly erroneous standard.  City of St. Louis Park v. Berg, 433 N.W.2d 87, 89 (Minn. 1988).

I.          Knock-and-Announce Requirement

            Bannie first asserts that when Schneibel answered the door, Deputy Youngquist failed to announce that he was a deputy there to execute a search warrant.

            Youngquist testified that when Schneibel answered the door he identified himself, displayed his badge, and stated that they had a search warrant.  Schneibel testified that Youngquist did not identify himself or state he was there to execute a warrant before he and the other officers entered the home.  The district court credited Youngquist's testimony and found that when Schneibel answered the door, Youngquist identified himself, displayed his badge, and stated that he had a search warrant. 

            Appellate courts will grant deference to a district court's credibility determinations.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).  On this credibility issue, there is enough in the record to affirm the district court's findings.

            Bannie next asserts that even if Youngquist identified himself and stated his purpose, his entry was still unreasonable because he did not wait for permission to enter.  Bannie cites no authority supporting his argument that police must give occupants a reasonable opportunity to consent to entry before entering without consent.  Instead, he points to cases that state that officers must knock and announce their entry.

            Absent exigent circumstances or a no-knock provision in the warrant, officers executing a search warrant must wait a reasonable period of time before entering a home if no one answers their knock.  See 2 Wayne R. LaFave, Search and Seizure § 4.8(c), at 608 (3d ed. 1996) (stating officers must wait reasonable time after notice before breaking into premises).  We find no authority, however, for the proposition that an officer must wait a reasonable time for permission to enter after the occupant has opened the door and officers have identified themselves and their purpose.  Cf. id. at 610 (recognizing authority supporting conclusion that no wait is necessary when officer gives occupant face-to-face notice through open door). 

            Because Bannie points to no authority supporting his position on this issue, and there appears to be no such authority, the district court did not err by refusing to suppress the evidence based on this issue.   

II.        Staleness

            Bannie also argues that the search warrant was stale when it was executed.^[1]  He does not contend that the warrant was unsupported by probable cause when it was issued.^[2]  Because Bannie does not contend that the information supporting the warrant
was stale when the warrant was issued, the only issue is whether the nine-day delay between the date the warrant was issued and the date of its execution caused the information supporting the warrant to become stale.

            Depending on the facts, a delay in a warrant's execution can be unconstitutional, even if the warrant is executed within the statutory time period.  State v. Yaritz, 287 N.W.2d 13, 16 (Minn. 1979).  Whether a delay is unconstitutional depends on whether the probable cause stated in the affidavit continues to exist at the time of execution, "that is, whether it is still likely that the items sought will be found in the place to be searched."  Id.  Factors involved in making such a determination include the character of (a) the crime, (b) the criminal, (c) the thing to be seized, and (d) the place to be searched.  Id. at 16-17. 

            In Yaritz this court concluded that the warrant was not stale when executed despite a six-day delay in execution.  Id. at 17.  There, the affidavit indicated that a confidential informant made two controlled buys from the defendant within a month before the warrant was issued and that the last of these buys took place within 72 hours before the warrant's issuance.  Id. at 14 n.1.  In affirming the district court's decision not to suppress the evidence, the supreme court recognized that although a drug sale may be a "single-occurrence crime," the affidavit indicated that the defendant had been selling drugs on a continuing basis.  Id. at 17.

            Here, the affidavit supporting the warrant stated that the CRI made a controlled buy at 647 Canton within 72 hours before the application.  According to the affidavit, the CRI also informed Youngquist that in the last six months the CRI had seen several pounds of marijuana at 635 Canton.  The district court concluded that the reasonable inference from this information "is that Edward Bannie had been selling marijuana from his homes for at least six months" and stated, "Under these circumstances, ongoing drug sales by Edward Bannie out of the two homes identified in the warrants were highly likely." 

            If the CRI's statement that he saw marijuana in 635 Canton within the last six months was not stale when the warrant was issued, and Bannie does not assert that it was, we can uphold the district court's conclusion that another nine days did not cause this information to go stale.  The controlled buy occurred within 72 hours before the warrant's issuance and approximately 12 days before the warrant was executed.  Because the crime being investigated was ongoing drug sales, it is not unreasonable to conclude that evidence of this crime could still be present in the home 12 days after a controlled buy.  Cf. State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) ("When an activity is of an ongoing, protracted nature, the passage of time is less significant.").  Further, the place being searched was Bannie's home.  Unlike a temporary location, it is reasonable to assume that evidence of drug sales could be contained within a home 12 days after a controlled buy.

            On these facts, we conclude that the evidence supporting the warrant did not become stale because of a nine-day delay in executing the warrant.  The district court did not err in refusing to grant Bannie's motion to suppress.

            Affirmed.