This opinion will be unpublished and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

A04-1004

 

 

State of Minnesota,

Respondent,

 

vs.

 

William Daniel Winter,

Appellant.

 

 

Filed June 7, 2005

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K0-03-1969

 

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

 

Susan Gaertner, Ramsey County Attorney, Colleen A. Timmer, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 1050, Minneapolis, MN   55402 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Willis, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            On appeal from his conviction of fifth-degree possession of methamphetamine, appellant argues that the search of his home was constitutionally invalid because it occurred at night and the police only had a daytime search warrant.  Because the record shows that the search was not at nighttime, we affirm.

FACTS

Officer John Linssen received information from a homeowner who suspected that one of his tenants, appellant William Winter, was selling narcotics, in part because of the large amount of traffic coming and going at the house.  The homeowner, who also lived in the house, invited Officer Linssen into his home, where the officer found evidence suggestive of illegal drug activity, including altered plastic bags.  Officer Linssen conducted surveillance on the house and observed a large number of nighttime visitors who only stayed for a short time.  He also noticed that a very large dog, possibly a Rottweiler, lived at the house.  During his investigations, Officer Linssen learned that appellant had a criminal record, which included assault, fleeing from police, and arrests for narcotics offenses. 

            Based on his observations, Officer Linssen applied for a no-knock, nighttime search warrant.  He explained in his affidavit that the nighttime warrant was necessary to “prevent the loss, destruction or removal of the objects of the search or to protect the searchers or the public.”  Officer Linssen went on to explain that most narcotics trafficking occurs at night, that the involved parties are often armed with guns, and that the searching officers could more easily and safely approach the house at night.  He specifically indicated the nighttime search was necessary because appellant has a history of assault and fleeing from police and because a large dog at the house might bark to alert appellant or even attack the officers.  Officer Linssen prepared the search warrant but inadvertently omitted the no-knock and nighttime search language from the actual warrant. 

            Officer Linssen and the other officers arrived at the house wearing police uniforms and raid gear.  Officer Linssen testified that they arrived sometime between 7:45 p.m. and 8:00 p.m. and that the search began shortly before 8:00 p.m.  The search warrant indicates that it was executed at 8:00 p.m.  The district court’s finding of fact, supported by this and other evidence, states that the search occurred between 7:40 and 8:00 p.m.  The officers forcefully entered the house without knocking when appellant ran inside from the front yard.  Officers spent roughly three and a half hours conducting the search, and they found methamphetamine. 

Appellant was ultimately charged with fifth-degree possession of methampheta-mine.  In Rasmussen proceedings, the district court concluded that the warrant was valid because the omission of the no-knock and nighttime language was a technical statutory violation.  Appellant proceeded with a Lothenbach trial and was convicted of the offense.  Following sentencing for the offense, he appeals his conviction.

D E C I S I O N

On appeal from a district court’s suppression decision, when the facts are undisputed, we independently determine whether the evidence requires suppression as a matter of law.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  A district court should suppress the evidence acquired from a search when the search warrant was invalid.  Minn. State Patrol Troopers Ass'n ex rel. Pince v. State, Dep’t of Pub. Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16 (1963)), review denied (Minn. May 24, 1989).  To be valid, 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.”  Minn. Stat. § 626.14 (2002).  When the police initiate a search during the day and the search continues into the night, the search is a proper daytime search and does not need a nighttime search warrant.  State v. Stephenson, 310 Minn. 229, 233, 245 N.W.2d 621, 624 (1976).

In Minnesota, the execution of a daytime warrant at night may be a statutory error, not a constitutional violation.  State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978); see also State v. Goodwin, 686 N.W.2d 40, 44 (Minn. App. 2004) (concluding that search executed at 6:58 a.m. with daytime warrant rather than nighttime warrant was technical violation of statute not requiring suppression of evidence), review denied (Minn. Dec. 14, 2004).  The inquiry into the validity of the warrant may nonetheless have a constitutional dimension because “a nighttime search of a home involves a much greater intrusion upon privacy.”  Lien, 265 N.W.2d. at 839-40.  In determining that the execution of a daytime warrant at night was not a constitutional violation, the Minnesota Supreme Court noted the significance of the search occurring at a reasonable hour when most people were awake and when activity in the home was observable.  Id. at 841.  Based on its conclusion that errors of this nature are statutory and technical, the court determined that the exclusionary rule did not necessarily apply.  Id. at 840.

Appellant does not challenge the district court’s conclusion about the no-knock portion of the search warrant, but limits his appeal to whether the search warrant was valid for a nighttime search.  His argument is unpersuasive.

The record demonstrates that the search was in fact a daytime search.  The officer’s testimony indicates that the search began between 7:45 and 8:00 p.m.  Because a search that begins during the statutory period is considered a daytime search even if it ends at nighttime, this evidence supports the conclusion that the search was a daytime search.[1] 

Appellant points to the search warrant itself, which indicates that it was executed at 8:00 p.m.  He insists that a search that begins at 8:00 p.m. is somehow outside the parameters of a valid daytime search.  This contention is without merit.  The statute provides that execution of a warrant, to be valid, must occur between the hours of 7:00 a.m. and 8:00 p.m.  The plain meaning of this statutory language is inclusive of a search begun at 8:00 p.m.; the statute does not require that a warrant be served before 8:00 p.m.

Moreover, were we to agree with appellant’s proposition that a search begun at 7:59 p.m. is valid, but one begun a moment later is invalid, we nonetheless conclude that the mistake is merely technical in nature and not constitutional.  The facts of this case are comparable to those in Lien.  The police officers arrived at a reasonable hour when most people would still be awake.  They observed appellant outside of his home, awake and apparently clothed.  They did not roust him out of bed and force him to stand outside in his nightclothes while they searched.  Indeed, nothing in the facts of the case suggests that the intrusion into his home at 8:00 p.m. was more intrusive than an earlier search would have been.  The search has no constitutional dimension, and the mere statutory violation does not require evidence obtained from the search be excluded.

Because we determine that the search was lawfully conducted in the daytime without the need for a nighttime search provision, we need not examine whether the officer had established a reasonable, articulable suspicion for the nighttime search provision in the warrant application.

Affirmed.