This opinion will be unpublished and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

A04-1121

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Lowell Bourke,

Appellant.

 

Filed June 28, 2005

Affirmed

Kalitowski, Judge

 

Isanti County District Court

File No. K9-02-1344

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Mary McKinley, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127; and

 

Jeffrey Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Richard Lowell Bourke challenges his conviction of first-degree conspiracy to manufacture a controlled substance contending that the district court erred by admitting evidence seized during a nighttime search that was improperly authorized by a warrant.  We affirm.

D E C I S I O N

 

I.

 

            Appellant argues that the search warrant did not contain objective facts to justify a nighttime search, and that therefore, the district court should have suppressed evidence seized during the search.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  An issuing magistrate “is entitled to draw common-sense and reasonable inferences from the facts and circumstances given.”  State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985).

            Minnesota law provides that

[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 the facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.

 

Minn. Stat. § 626.14 (2002). 

Nighttime searches are generally discouraged because of “the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.”  State v. Lien, 265 N.W.2d 833, 839-40 (Minn. 1978).  However, since the Minnesota statutory rule is designed to protect against intrusions in which persons are “roused out of bed and forced to stand by in their night clothes” while police search, if police know that the defendant is awake and dressed when they execute the search, the intrusion is lessened.  Lien, 265 N.W.2d at 841.

Section 626.14 requires that the officer show to the magistrate that the warrant can only be executed successfully in the nighttime, and the application must include more than “bare assertions” to justify a nighttime search clause.  Id. at 840.  Appellate courts have approved of nighttime search clauses for warrants to search where the officer alleged in the application that firearms were recently present in the home because that showed the officers had a valid concern for their safety.  See State v. Wasson, 602 N.W.2d 247, 251 (Minn. App. 1999), aff’d, 615 N.W.2d 316 (Minn. 2000) (affirming while discussing only the constitutionality of the no-knock clause in the warrant).  Nighttime search authorizations have also been approved where the place to be searched is part of the crime scene so that evidence can be collected and preserved in a timely manner.  See State v. Quick, 659 N.W.2d 701, 719 (Minn. 2003).

            Appellant argues, but does not cite to published caselaw, that the standard for determining the validity of a nighttime authorization clause is the same as the standard for a no-knock clause—that of reasonable suspicion.  See, e.g., Wasson, 615 N.W.2d at 320 (analyzing no-knock entry clause under Fourth Amendment reasonableness inquiry).  We disagree.  The two standards are distinct both in caselaw and because the no-knock entry standard stems from analysis under the Fourth Amendment, whereas the nighttime authorization standard stems from analysis under a Minnesota statute.  See Quick, 659 N.W.2d at 719 (analyzing nighttime authorization clause under necessity standard); Wasson, 615 N.W.2d at 320 (analyzing no-knock entry clause under Fourth Amendment reasonableness inquiry); Lien, 265 N.W.2d at 836-41 (analyzing no-knock entry clauses and nighttime authorization clauses as two distinct inquiries).

From these cases, courts use a “reasonable suspicion” standard to test a no-knock entry clause and a necessity standard to determine if a nighttime authorization clause is appropriate.  Therefore, the warrant application must show that a nighttime search was needed, for example, to preserve the crime scene as in Quick.

            Here, the sheriff’s investigator alleged the following facts in the warrant application.  Two Isanti County sheriff’s deputies went to appellant’s home at around 8:20 p.m. on November 7, 2002, on a tip that a wanted felon was staying in appellant’s pole barn.  While one deputy questioned appellant at his home, the other deputy looked through the window of the pole barn to see if the wanted felon was present.  Looking through the window, one deputy observed two men and one woman inside at a table “in the process of manufacturing methamphetamine.”  At that point, the deputy questioning appellant walked to the barn and appellant followed.  Appellant let the deputies into the pole barn and the deputies arrested the three individuals.  However, appellant fled the scene and was not apprehended.  A sheriff’s investigator immediately left the scene to procure a search warrant.  In the warrant application, the investigator justified the nighttime search because of “the lateness of the hour and the possible destruction of evidence.”

            Among the items sought in the application were:  marijuana, methamphetamine, and cocaine; containers commonly used for the storage of controlled substances; and weapons, pistols, revolvers, rifles, or shotguns, or other similar items capable of use in distributing or protecting controlled substances.

            We conclude that from the application, the warrant issuing judge could draw several reasonable inferences to support a nighttime search:  (1) appellant was at large and could destroy evidence in the barn before morning; (2) appellant and his co-defendants were in the process of manufacturing methamphetamine which could cause explosions, thus destroying evidence and property, and putting human life in peril; (3) appellant would not be present at the scene, thus alleviating to some degree concerns that appellant would be awoken and forced to stand by as police searched his barn; and (4) the premises was a crime scene and evidence needed to be preserved and catalogued.

            Because all four of these inferences and the lateness of the hour support the need for a same-day nighttime search, we conclude that the district court did not err in denying appellant’s motion to suppress.

            Affirmed.