This opinion will be unpublished and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

A04-835

A04-923

 

State of Minnesota,

Respondent,

 

vs.

 

William Santeramo,

Appellant (A04-835),

 

Vincent Neil Santeramo,

Appellant (A04-923).

 

Filed May 17, 2005

Affirmed

Willis, Judge

Dissenting, Stoneburner, Judge

 

St. Louis County District Court

File Nos. K0-02-300946 & K9-02-300945

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Tiernee Murphy, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, Suite 501, Duluth, MN  55802 (for respondent)

 

John M. Stuart, State Public Defender, Karl E. Robinson, Special Assistant State Public Defender, Winthrop & Weinstine, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN  55402-4629 (for appellant William Santeramo)

 

Craig E. Cascarano, 333 South Seventh Street, Suite 2890, Minneapolis, MN  55402 (for appellant Vincent Neil Santeramo)

 

            Considered and decided by Stoneburner, 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

WILLIS, Judge

            In these consolidated appeals, appellants challenge their convictions of controlled-substance crime, arguing that the district court erred by admitting evidence seized during a warrantless search.  Because we find that the police had probable cause and that exigent circumstances justified the search, we affirm.

FACTS

            On July 21, 2002, Officer Kathleen Sydow and Captain Tom McKusky responded to a neighbor’s complaint of loud music at appellant Vincent Santeramo’s house in Hibbing.  Through a window in the front door of the house, Officer Sydow saw a man who was sitting on a couch in the living room roll and smoke what she believed to be a marijuana cigarette.  Captain McKusky also observed the man smoking the suspected marijuana cigarette, and both officers saw appellant William Santeramo bring the man another bag of suspected marijuana from a different room.  Officer Sydow then heard appellant William Santeramo say to the man, “Hand me the hash.” 

            Based on appellant William Santeramo’s statement, “Hand me the hash” and their observations of a “substantial amount” of what they recognized as marijuana, Officers Sydow and McKusky believed that they had probable cause to enter the house.  Officer Sydow opened the door, but appellant Vincent Santeramo pushed it shut from inside the house.  With her foot wedged in the closing door, Officer Sydow drew her gun and pushed the door open.  Appellant William Santeramo fled from the room and hid in the bathroom, the man smoking the suspected marijuana remained seated in the living room, a third man ran into the kitchen and left the house, and another man was asleep on the couch.  Appellant Vincent Santeramo remained in the living room. 

Officer Sydow and Captain McKusky secured the premises and called the station for assistance.  When additional police arrived, they conducted a protective sweep of the house, and discovered two duffel bags that were later found to contain considerable amounts of several kinds of narcotics.

As a result of this incident, both appellants were charged with 26 felony counts and two misdemeanor counts of possession of and conspiracy to possess with intent to sell marijuana, hashish, and several other illegal and prescription drugs.  At a joint omnibus hearing, both appellants moved to suppress the evidence seized during the search.  The district court denied their motions to suppress, and appellants submitted their cases to the district court under the procedure described in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

The district court found appellant Vincent Santeramo guilty of first-degree possession of methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2(1) (2002), and imposed an 86-month sentence with seven days of jail credit.  The district court found appellant William Santeramo guilty of fifth-degree possession of hashish, in violation of Minn. Stat. § 152.025, subd. 2(1) (2002), and imposed a 15-month sentence with credit for 299 days served.  Both appellants challenged the search underlying their convictions, and this court consolidated their appeals.

D E C I S I O N

            Appellants argue that the district court erred by admitting evidence seized during the warrantless search of appellant Vincent Santeramo’s house.  This court reviews de novo the validity of a warrantless search.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  Under the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution, a search of a private dwelling “conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well delineated exceptions.”  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (quotation marks omitted)).  Absent consent, a warrantless search is generally justified only when the police have probable cause that a felony has been committed and exigent circumstances exist.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  It is the state’s burden to establish the existence of an exception to the warrant requirement.  State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

            Both appellants argue that the police did not have probable cause to enter the house because the statement, “Hand me the hash,” does not support a strong suspicion that a crime is being committed.  Probable cause exists when “the facts would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person under consideration is guilty of a crime.”  State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978).  To determine if probable cause exists, a court must consider the “information that police took into consideration” and the “totality of the circumstances.”  State v. Walker, 584 N.W.2d 763, 769 (Minn. 1998).  Probable cause requires something more than mere suspicion of criminal activity but less than the evidence necessary for conviction.  State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000).  “[T]his court independently reviews the facts to determine the reasonableness of the conduct of police” concerning the existence of probable cause for warrantless searches.  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).

            The state argues that the officers’ observations establish probable cause that two felonies were being committed:  possession of hashish and possession of a felony amount of marijuana.  Although neither officer testified that she or he could be certain that the bags observed through the window contained a felony amount of marijuana, Captain McKusky testified that one of the bags had “a substantial amount of marijuana” and that “it could have been more” than the 42-gram felony amount.  In addition to their observations of what they believed to be marijuana, Officer Sydow heard appellant William Santeramo say, “Hand me the hash.”  While this statement alone does not support a strong suspicion that a crime is being committed, we must consider the totality of the circumstances.  See Walker, 584 N.W.2d at 769.  Given the totality of the officers’ observations, we find that a person of ordinary care and prudence would entertain an honest and strong suspicion that appellants were committing a felony:  the possession of hashish.  Because possession of any amount of hashish is a felony offense under Minn. Stat. §§ 152.02, subd. 2(3), .025, subds. 2(1), 3 (2002), we conclude that the officers had the probable cause necessary for a warrantless search.

Appellant Vincent Santeramo additionally argues that Officer Sydow’s testimony that she heard appellant William Santeramo say, “Hand me the hash” is not credible.  A district court’s determinations of credibility at an omnibus hearing will not be overturned unless clearly erroneous.  State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989).  Officer Sydow testified that she was able to hear the statement despite the loud music in the house, because appellant William Santeramo was speaking loudly enough to be heard over the music.  The record supports the district court’s finding that Officer Sydow heard appellant William Santeramo say, “Hand me the hash,” and we defer to the district court’s determination of Officer Sydow’s credibility.

Appellant William Santeramo also argues that the officers’ observations of marijuana do not support probable cause for possession of a felony amount of marijuana.  But the district court found that the officers had probable cause to believe that appellants possessed hashish, not that they possessed a felony amount of marijuana.  Because the district court did not base its decision on a finding of probable cause that appellants possessed a felony amount of marijuana and because we find that the officers did have probable cause to believe that appellants possessed hashish, we will not address the merits of this argument.

In addition to probable cause that a felony is being committed, exigent circumstances must be present to justify a warrantless entry of a residence.  Othoudt, 482 N.W.2d at 222.  There are two tests used to determine if exigent circumstance exist:  the single-factor test and the totality-of-the-circumstances test.  In re Welfare of B.R.K., 658 N.W.2d 565, 579 (Minn. 2003).  Under the single-factor test, the “hot pursuit of a fleeing felon, imminent destruction or removal of evidence, protection of human life, likely escape of the suspect, and fire qualify as exigent circumstances justifying a warrantless search and seizure.”  Id.  (quotation omitted).  Where no single-factor circumstance exists, this court will apply the totality-of-the-circumstances test.  Id.  The state has the burden of proving the existence of exigent circumstances.  State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990). 

The district court found that the officers’ observations justified their warrantless entry because they reasonably believed that evanescent evidence was in imminent danger of being destroyed.  Appellants argue that the officers did not see any hashish being consumed and that their observation of a man smoking what they believed to be a marijuana cigarette does not establish sufficient exigent circumstances to justify the warrantless search.  Both appellants cite In re Welfare of D.A.G., 484 N.W.2d 787 (Minn. 1992).  In D.A.G., the Minnesota Supreme Court considered the validity of a warrantless search when police raided an apartment after an informant told them that a tenant had two pounds of marijuana.  Id. at 788–89.  The supreme court found that the state “failed to provide facts to support the existence of exigent circumstances under the ‘single factor’ test” because it did not “advance[] a theory as to how the 2 pounds of marijuana the officers thought was present, or the 1/2 pound that actually was present, would have suddenly disappeared.”  Id.at 791. 

Here, the state has advanced a theory of how the hashish that the officers thought was present was likely to disappear.  The officers were concerned that the hashish, like the suspected marijuana that they observed being consumed, would be destroyed by consumption.  Unlike the officers in D.A.G., the officers here were not under the impression that appellants possessed an amount of hashish large enough to rule out its destruction by consumption.  We find the reasoning of the court in D.A.G. inapposite here.

Appellant William Santeramo points out that in Johnson v. United States, the United States Supreme Court held that police observation of fumes from burning opium did not justify a warrantless search of a hotel room.  333 U.S. 10, 15, 68 S. Ct. 367, 369 (1948).  But in Johnson, the only indication that the opium was being consumed was the fumes in the hallway outside the room.  Id.(“No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear.”). The officers in Johnson did not witness the actual destruction of evidence nor were they able to ascertain whether evidence was being destroyed while they stood outside the room.

Here, the officers observed a man smoking a marijuana cigarette and thereby destroying evidence.  More importantly, though, they believed that hashish was on the premises and that, along with the marijuana, the hashish was about to be consumed.  We find that the officers’ belief that the hashish was in imminent danger of being destroyed was reasonable, and we conclude that exigent circumstances existed that justified the warrantless entry into appellant Vincent Santeramo’s house.

Because we find that the officers had probable cause that appellants possessed hashish and that exigent circumstances existed justifying the warrantless search, we conclude that the district court did not err by admitting the evidence seized in the warrantless search of  appellant Vincent Santeramo’s house.

Affirmed.

 

Stoneburner, Judge(dissenting)

 

                        Because I believe the district court clearly erred in finding that the state proved exigent circumstances justifying a warrantless entry into a private home and in admitting the evidence seized as a result of the warrantless entry, I respectfully dissent.      

            Neither the district court nor the majority justifies warrantless entry into this home based on imminent destruction of a felony amount of marijuana.  The district court and the majority conclude that because officers witnessed one person smoking what looked like a marijuana cigarette and heard someone say “hand me the hash,” the officers “were concerned that [the] hashish . . . would be destroyed by consumption” before they could obtain a warrant. 

            There are several Minnesota cases upholding warrantless entries where police had reason to believe that those on the premises were alerted to police presence and could be deemed likely to destroy any controlled substances before police could obtain a warrant.  See State v. Alayon, 459 N.W.2d 325, 329 (Minn. 1990); State v. Mollberg, 310 Minn. 376, 384, 246 N.W.2d 463, 469 (1976).  But there are no cases stating that evidence of consumption of a small amount of marijuana justifies an inference of consumption of another drug suspected to be on the premises, creating exigent circumstances for a warrantless entry into a private home.  And, in this case, there is no evidence that anyone in the home was aware of the police presence until police actually entered the home with guns drawn.

In Johnson v. United States, the United States Supreme Court held that a warrantless entry, arrest and search of a hotel room and its occupant by federal drug agents violated the Fourth Amendment.  333 U.S. 10, 15, 68 S. Ct. 367, 369 (1948).  In that case, several agents, acting on an informant’s tip that someone was smoking opium in a hotel, went to the hotel and traced the distinctive odor of burning opium to a particular room.  Id. at 12, 68 S. Ct. at 368.  The officers knocked, entered, placed the room’s sole occupant under arrest, and searched the room.  Id.  The Court observed that the police might have had sufficient evidence to obtain a search warrant, but there were no exigent circumstances justifying a warrantless entry or search.  Id. at 13, 68 S. Ct. at 368-69.  The Court stated

[n]o suspect was fleeing or likely to take flight.  The search was of permanent premises, not of a movable vehicle.  No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. . . .

If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.

 

Id. at 15, 68 S. Ct. at 369 (emphasis added).

 

Other states have analyzed imminent destruction of drug evidence.  I find the reasoning of the Supreme Court of North Dakota in State v. Ackerman, 499 N.W.2d 882 (N.D. 1993), persuasive.  The North Dakota Supreme Court, citing Johnson and noting the heavy burden on government to justify invasion of the sanctity of a home, reversed a trial court’s finding of exigent circumstances based on the strong odor of burning marijuana, concluding that the officer’s concern about destruction of evidence was “nothing more than speculation about possibilities and does not demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.”  Id. at 886(citation omitted).  The state argues that Ackerman involved the misdemeanor crime of possession of marijuana and is distinguishable from this case, which involves felony possession of hashish.  But, in this case, there was only observation of the use of a petty misdemeanor amount of marijuana and no visual or other evidence that hashish was being consumed or destroyed. 

Even in a case which upheld a warrantless entry based on an officer’s observation of consumption of suspected methamphetamine, the South Dakota Supreme Court stated that it was only once the officer actually saw the suspect consuming the methamphetamine that exigent circumstances arose.  See State v. Hess, 680 N.W.2d 314, 326-27 (S.D. 2004) (affirming warrantless entry based on officer’s observation of immediate consumption of methamphetamine).

Cases from other jurisdictions that uphold exigent circumstances when there is evidence of immediate drug consumption (usually the odor of burning marijuana) have typically relied on additional circumstances demonstrating a certainty or great possibility that the suspect or third persons in the home are aware of police presence.  See, e.g. State v. Decker, 580 P.2d 333, 336 (Ariz. 1978) (“After the officer knocked and was refused admittance, there existed a strong probability of imminent destruction of the marijuana.”); Cherry v. Com., 605 S.E.2d 297, 304-05 (Va. Ct. App. 2004) (upholding immediate entry when officer smelled burning marijuana and woman who answered door called to other occupants of house to tell them that the police were there and officer heard “significant movement” behind a makeshift curtain, which he feared indicated occupants behind the sheet were destroying the marijuana); State v. Hughes, 607 N.W.2d 621, 628 (Wis. 2000) (holding exigent circumstances justified entry but holding was based on “an additional and important factor that was not present in Johnson: the suspects here were fully aware of the presence of the police,” and “the only risk of evidence destruction implicated in Johnson is that associated with the burning of the drug in order to consume it, rather than the risk of intentional destruction of the drug in order to avoid its discovery and seizure by the police.”)  In the case before us, there was absolutely no evidence that the suspects in the home were consuming hashish or that anyone in the home had been alerted to police presence.

Although other courts have upheld warrantless entry based on indications of controlled substance consumption, such cases typically do not reference or discuss Johnson as it relates to exigent circumstances.  E.g., Mendez v. People, 986 P.2d 275, 281-83 (Colo. 1999) (holding that the act of smoking marijuana constitutes destruction of evidence justifying a warrantless search).  The majority asserts that In re Welfare of D.A.G., 484 N.W.2d 787, 791 (Minn. 1992), requires only that officer “advance a theory” about how drugs suspected to be present would be destroyed while they obtained a warrant, and that because the officers here advanced a “theory” of consumption, exigent circumstances existed.  I conclude that there must be some evidence to support the theory advanced and that witnessing consumption of a suspected marijuana cigarette is not evidence that supports a theory that hashish will be imminently consumed.  A theory could reasonably be advanced that any suspected felony-level drug possessor could consume the drug, but without evidence to support imminent consumption, such a theory would not amount to exigent circumstances.

The courts of greater Minnesota are fully equipped to expeditiously issue warrants at any time.  There is no evidence in the record that the police in this situation were unable to maintain surveillance while a warrant was obtained.  For these reasons, I conclude that the district court erred in admitting the evidence seized as a result of this warrantless entry and would reverse.