STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1008

State of Minnesota,
Respondent,

vs.

Donn Lee Greeley,
Appellant.

Filed June 29, 2004

Affirmed

Wright, Judge

Hennepin County District Court

File No. 01046119

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN 55487 (for respondent)

Considered and decided by Toussaint, Chief Judge, Presiding; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree possession of a controlled substance, arguing that (1) the search-warrant application did not provide particularized findings to justify an unannounced entry; and (2) the district court erred in declining to address, on the ground of mootness, whether the officers reappraised the need for an unannounced entry at the threshold. We affirm.

FACTS

A confidential informant reported to Robbinsdale Police Officer Thomas Rothfork that appellant Donn Greeley and three other people were operating a methamphetamine lab at 3129 Grimes Avenue. The informant also reported to Rothfork that Greeley and his roommates were counterfeiting checks and driver’s licenses at the residence.

Two days later, Rothfork executed a “garbage pull” at the residence, which he coordinated with the sanitation company to search the garbage collected from the residence. In the garbage, Rothfork discovered 40 empty packages of Sudafed cold tablets, an empty bottle of muratic acid, pieces of glass and plastic tubing, packaging for two butane torches, several plastic baggies and tear-offs that field tested positive for methamphetamine, an empty battery package, several drug notes, copies of forged driver’s licenses, and counterfeiting supplies. Rothfork immediately applied for a no-knock, nighttime search warrant.

As the basis for the no-knock provision of the search warrant, Rothfork stated in the search-warrant application that improper disposal of the chemicals found in the garbage search posed a danger to the officers and a health risk to the public. The search-warrant application contained the information supplied by the confidential informant, a description of the items collected in the garbage search, the opinion of a crime lab analyst that the number of Sudafed packages recovered in the garbage indicated the operation of a large-scale methamphetamine lab at the residence, and Rothfork’s opinion that “[b]ased on [his] training and experience[,] methamphetamine labs incorporate the use of highly hazardous chemicals . . . [that] are highly toxic in both liquid and gaseous forms.” The district court authorized the no-knock, nighttime search warrant.

Upon execution of the search warrant, officers found a pan containing 25.53 grams of methamphetamine, a coffee filter containing 10.15 grams of methamphetamine, several packets of Sudafed cold tablets, a methamphetamine recipe, chemicals, equipment, and other materials for manufacturing methamphetamine. The state filed a complaint charging Greeley and one roommate with first-degree manufacturing of a controlled substance, a violation of Minn. Stat. § 152.021, subd. 2a (2000), and first-degree possession of a controlled substance, a violation of Minn. Stat. § 152.021, subd. 2(1) (2000). Greeley moved to suppress the evidence seized pursuant to the search warrant, arguing that the no-knock provision of the search warrant was not supported by particularized findings in the warrant application and that the officers did not reappraise the need for an unannounced entry at the time of the search.

On August 7, 2002, a Rasmussen hearing was held on the issue of whether the search-warrant application contained particularized findings necessary to support an unannounced entry. The district court agreed not to take testimony on August 7 regarding the threshold reappraisal issue and set a separate Rasmussen hearing on that issue for a later date. But during the August 7 Rasmussen hearing, the state made an offer of proof and attempted to provide testimony regarding the threshold reappraisal issue. Greeley objected to the testimony, arguing that it was beyond the scope of that particular hearing. The district court sustained the objection.

The district court subsequently denied the suppression motion, concluding that the warrant application set forth facts that cumulatively provided reasonable suspicion warranting an unannounced entry. The district court also cancelled the Rasmussen hearing on the threshold reappraisal issue after concluding that the issue was moot in light of its decision that the no-knock provision of the search warrant was valid. Greeley moved the district court to reconsider the threshold reappraisal issue and requested an evidentiary hearing. The district court declined reconsideration. The state dismissed the manufacturing charge, and the district court found Greeley guilty of the possession charge following a trial on stipulated facts pursuant to the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). This appeal followed.

D E C I S I O N

When reviewing a pretrial order on a motion to suppress evidence, we conduct a de novo review to determine as a matter of law whether the district court’s decision is erroneous. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Greeley argues that, because the no-knock provision of the search warrant did not contain findings that were particularized to his residence, the district court erred in denying his suppression motion. Police seeking a search warrant authorizing an unannounced entry “must inform the issuing magistrate of the circumstances which they believe justify the unannounced entry and obtain specific advance authorization for it.” State v. Anhalt, 630 N.W.2d 658, 661 (Minn. App. 2001) (quoting State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978)). Boilerplate language without particularized reasons for an unannounced entry is insufficient to establish that an announced entry would be dangerous or would allow the destruction of evidence. Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1421-22 (1997) (rejecting “a blanket exception to the knock-and-announce requirement”); State v. Martinez, 579 N.W.2d 144, 147 (Minn. App. 1998) (holding a no-knock provision invalid where supported only by generalizations regarding the drug trade), review denied (Minn. July 16, 1998). The police are required to make a strong showing that reasonable suspicion exists that an announced entry will result in the destruction of evidence or in danger to the officers executing the warrant. Id.

On review, we agree with the district court. Specifically, the search-warrant application linked the residence to items commonly used in the production of methamphetamine, including several packages of Sudafed, muratic acid, and butane torches. Furthermore, Rothfork established in the search-warrant application that, based on his training and experience, these chemicals and manufacturing paraphernalia posed a danger to the officers and the public if disposed of improperly. Moreover, the garbage search itself revealed evidence of improper disposal of these chemicals. Based on these facts, there was reasonable suspicion that an announced entry would pose a danger to the officers executing the warrant. We, therefore, conclude that the district court properly denied Greeley’s motion to suppress.

II.

Greeley also argues that the district court erred in determining that the threshold reappraisal issue was moot. As a preliminary matter, the state contends that Greeley waived his right to appeal this issue by objecting to the proffered testimony at the August 7 hearing. Greeley counters that his objection to this testimony was proper and does not constitute waiver in light of the district court’s decision to limit the testimony to the validity of the no-knock provision and hear arguments on the threshold reappraisal issue at a separate hearing.

Generally, we will consider only matters argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). A suppression issue not raised at the omnibus hearing is deemed waived. State v. Brunes, 373 N.W.2d 381, 386 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). Conversely, a constitutional challenge is not waived when the defense raises the issue at the outset of an omnibus hearing. State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000) (citing State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992)). Here, Greeley raised the threshold reappraisal issue at the outset of the omnibus hearing. The district court bifurcated the hearing and set a separate date for testimony on the issue. The district court subsequently concluded that the issue was moot after determining that the officers were properly authorized to make an unannounced entry under the no-knock provision of the search warrant. Based on these facts, we conclude the issue was properly preserved for appeal, and we now address the merits.

When officers obtain advance judicial authorization to make an unannounced entry into a dwelling, they should still make a threshold reappraisal of the need to execute the warrant in this manner. Lien, 265 N.W.2d at 837-38. But the Minnesota Supreme Court has declined to adopt “a hard and fast rule that threshold reappraisal is required.” State v. Wasson, 615 N.W.2d 316, 322 (Minn. 2000). Generally, when officers make a threshold reappraisal at the scene, we conduct a de novo review to determine whether the officers’ observations before making the unannounced entry demonstrate that an unannounced entry was improper. State v. Botelho,638 N.W.2d 770, 781 (Minn. App. 2002). But absent an affirmative change in circumstances at the scene suggesting that an unannounced entry is no longer warranted, officers “need not abandon their original plan for an unannounced entry.” Id. at 782.

Although Greeley claims that the issue is not moot, he concedes that, if the no-knock provision is valid, the officers were not required to make a threshold reappraisal at the scene. In light of our holding that the no-knock provision of the warrant is valid, the district court properly determined that the threshold reappraisal issue is moot.

Affirmed.