This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-783

 

State of Minnesota,
Respondent,

vs.

Jovan Perez Davis,
Appellant.

 

Filed May 10, 2005

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. K2033920

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

David T. Redburn, Redburn Law, 8525 Edinbrook Crossing, Suite 207, Brooklyn Park, MN  55443 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of fifth-degree controlled-substance crime, appellant Jovan Perez Davis argues that the warrant for the search of his residence illegally authorized an unannounced entry because the application relied on past arrests for crimes involving weapons, the most recent of which was five years old, and provided no other articulable suspicion to support the no-knock provision.  We affirm.

FACTS

            On September 11, 2003, Investigator Mark Ganley applied for a warrant to search Davis’s residence and vehicles.  The supporting affidavit stated:  A confidential reliable informant (CRI) informed Investigator Douglas Wood that “the CRI had seen Jovan Davis in possession of substantial amounts of marijuana[] several times in the past three months.”  On September 9, 2003, a controlled buy was conducted, in which the CRI bought marijuana from an unwitting individual, who reported that Davis had brought the marijuana at an earlier time.  On September 10, 2003, while standing outside the door to Davis’s apartment, Ganley smelled a strong odor of burning marijuana emanating from within Davis’s apartment.

            The affidavit listed the crimes for which Davis previously had been arrested:  aggravated robbery in 1994; second-degree assault with a dangerous weapon in 1995; possession of a machine gun and/or short-barreled shotguns in 1996; and fifth-degree possession of marijuana in 1998.  The affidavit states that the previous arrests, specifically those pertaining to weapons, raise a concern for officer safety.

The affidavit requested authorization for an unannounced entry for the following reasons:

            Your affiant’s past experience in executing narcotic search warrants has shown that attempts are inevitably made by drug traffickers and/or users, to destroy evidence and/or interfere with executing officers when pre-announced presence of the police is known.  Your affiant knows that [Davis] . . . has been arrested numerous times and therefore has experience with police procedures and tactics.  An unannounced entry is requested to ensure the safety of executing officers based on the aforementioned information contained in the affidavit.

 

            A search warrant authorizing an unannounced entry was issued and executed.  During the search of Davis’s apartment, officers found 1,172.1 grams of marijuana.  Davis stipulated that the marijuana belonged to him.

            Davis was charged with possession of marijuana in violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2002).  Davis moved to suppress the marijuana arguing that the search warrant’s no-knock provision was unconstitutional.  The district court denied the motion.

            Davis waived his right to a jury trial, and the parties submitted the case to the district court for decision based on stipulated facts.  The district court found Davis guilty as charged.  This direct appeal challenging the conviction followed.

D E C I S I O N

            When the material facts are undisputed, an appellate court independently reviews whether a no-knock entry was justified.  State v. Botelho, 638 N.W.2d 770, 777 (Minn. App. 2002).

            An “[i]nquiry into the need for an unannounced entry is included in the reasonableness inquiry . . . under the Fourth Amendment of the U[nited] S[tates] Constitution.”  Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001) (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918 (1995)).  The United States Supreme Court “has rejected a blanket exception to the knock-and-announce rule . . . for all felony drug cases.”  State v. Barnes, 618 N.W.2d 805, 811 (Minn. App. 2000) (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)), review denied (Minn. Jan. 16, 2001).  To justify an unannounced entry,

“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.”

 

            . . . “[T]his showing [required under the reasonable suspicion standard] is not high, but the police should be required to make it whenever the reasonableness of a no knock entry is challenged.”

 

 State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (quoting Richards, 520 U.S. at 394-95, 117 S. Ct. at 1421).  “[B]oilerplate language in the search warrant affidavit does not satisfy the requirement for a showing, particular to the search at issue, that announcing would be dangerous or allow the destruction of evidence.”  Wasson, 615 N.W.2d at 320.

            Here, the search-warrant application states that, within the preceding two days, Davis provided the marijuana that was purchased in a controlled buy, and Ganley smelled a very strong odor of burning marijuana emanating from Davis’s apartment.  The application also states that Davis had three prior arrests for offenses involving dangerous weapons, including two crimes against the person.  See Minn. Stat. §§ 609.02, subd. 6 (defining dangerous weapon), .222 (second-degree assault with a dangerous weapon), .24 (simple robbery), .245 (aggravated robbery) (2004).  Davis argues that we should not treat as true the information in the warrant application that refers to his past arrests because they were only arrests, were stale, and there is no information that indicates that there was actually any basis for the arrests.  But he cites no authority that indicates that a magistrate should discount arrest information simply because the arrest is not followed by a conviction.

In Wasson, the supreme court held that an unannounced entry was justified when the search warrant affidavit stated that weapons were likely present in the house given that numerous weapons were seized from the exact location just three months previously and that, since execution of the earlier warrant, the homeowner had been willing to facilitate the sale of drugs at his residence to at least one person.  615 N.W.2d at 320-21.  Citing State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998),Davis argues that this case is distinguishable from Wasson because the information about his arrests was stale.  The issue in Souto was the existence of probable cause to issue a search warrant for the defendant’s residence.  Id. at 747.  To establish probable cause, “[t]he proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”  Id. at 750 (quotation omitted).  A lesser showing is required to satisfy the reasonable-suspicion standard than to show probable cause.  See Barnes, 618 N.W.2d at 811-12 (discussing showing required to satisfy reasonable-suspicion standard and rejecting argument that specific information about conditions inside the house was required because that would virtually impose a probable-cause standard on no-knock provisions).  “In other contexts this court has defined reasonable suspicion as something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue.”  Wasson, 615 N.W.2d at 320.

            Davis also cites United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996), to argue that, when executing a controlled-substances search warrant, the mere presence of firearms is insufficient to support a reasonable suspicion.  The Moore court upheld an order suppressing evidence when the officers had information that the defendant and another person in the premises were armed with an unknown type of firearm, but failed to demonstrate or even allege concerns of officer safety.  Id.  Here, Davis had a history of arrests for offenses involving dangerous weapons, including two crimes against the person, and the affidavit states that the previous arrests, specifically those pertaining to weapons, raise a concern for officer safety.  Davis’s history supports a stronger showing of a concern for officer safety than the mere presence of firearms.

In the unannounced-search context, when the officer presents a request for a no-knock warrant to a magistrate, “we may accept evidence of a threat to officer safety of a less persuasive character” than would have justified an officer in acting on his own without a warrant.  Wasson, 615 N.W.2d at 321; see also State v. Walker, 584 N.W.2d 763, 769 (Minn. 1998) (stating that securing an arrest warrant may tip scales in case of doubtful probable cause).

In sum, the officer who prepared the search-warrant application had information about Davis’s arrests, and nothing in the record indicates that Davis had not been arrested as the application indicates.  Information that Davis had been arrested four times over a period of years and that three of the arrests involved potentially violent offenses is not just boilerplate language.  Rather, it is specific information about Davis that justified a reasonable suspicion that the officers who executed the warrant faced a potentially dangerous situation.  The facts stated in the search-warrant application were sufficient to support a reasonable suspicion that an unannounced entry was justified.

Affirmed.