STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2235

State of Minnesota,
Respondent,

vs.

Adam Ray Kerber,
Appellant.

Filed August 22, 2006

Affirmed

Wright, Judge

Carver County District Court

File No. 10-CR-04-488

Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318 (for appellant)

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

Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, Carver County Courthouse, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.

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

WRIGHT, Judge

Appellant challenges his convictions of conspiracy and aiding and abetting attempted manufacture of methamphetamine based on evidence seized by police when conducting a nighttime search at his residence. Appellant argues that the affidavit in support of the search-warrant application was insufficient to support authorization for a nighttime search because it did not make a particularized showing of reasonable suspicion to justify a nighttime search and it impermissibly relied on boilerplate language. We affirm.

FACTS

On September 6, 2004, Carver County Deputy Sheriff Doug Schmidtke received information from a confidential reliable informant (CRI) indicating that appellant Adam Kerber was manufacturing methamphetamine in his residence. The CRI advised Deputy Schmidtke that Kerber and another individual were manufacturing methamphetamine at night because the two were employed during the day. Within the previous 72 hours, the CRI had seen in Kerber’s residence glass jars containing pseudoephedrine tablets soaking in acetone, a metal tank that smelled like anhydrous ammonia, several cans of acetone, and rubber hoses that had been altered to facilitate removal of anhydrous ammonia from nurser tanks. The CRI advised Deputy Schmidtke that Kerber was making methamphetamine in his residence “at this time.”

That same evening, Deputy Schmidtke applied for a search warrant for Kerber’s residence, person, and vehicle. The affidavit in support of the search-warrant application included the information from the CRI. Deputy Schmidtke requested nighttime-entry authorization pursuant to Minn. Stat. ง 626.14 (2004).

The issuing magistrate granted the request for the search warrant and authorized nighttime entry. Police executed the search warrant on September 7 at 4:52 a.m. They seized evidence of methamphetamine manufacture and arrested Kerber. Kerber later was charged with conspiracy and aiding and abetting attempted manufacture of methamphetamine, a violation of Minn. Stat. งง 152.021, subds. 2a(a), 2a(b), 152.096, 609.05 (2004).

Kerber moved to suppress the evidence seized during the search. The district court denied Kerber’s motion, finding that information in the affidavit about Kerber’s employment schedule and the indication that methamphetamine manufacture was occurring “at this time” were sufficient to authorize a nighttime entry. Kerber waived his right to a jury trial and submitted the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Kerber was convicted of the charged offenses, and this appeal followed.

D E C I S I O N

When we review a pretrial order on a motion to suppress evidence, we independently review the facts and determine whether the district court erred as a matter of law in admitting the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We give great deference to a magistrate’s evaluation of the sufficiency of an affidavit in support of a search warrant. State v. Martinez, 579 N.W.2d 144, 146 (Minn. App. 1998), review denied (Minn. July 16, 1998). On review, resolution of a doubtful or marginal case should be determined in favor of the decision to issue the search warrant. State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).

Kerber claims that the information presented to the issuing magistrate was insufficient to justify a nighttime search. Deputy Schmidtke’s search-warrant affidavit explained that a nighttime search was necessary because he had “received information from a Confidential Reliable Informant (CRI) stating that Adam Kerber and [T.J.] both work day jobs and are stealing anhydrous ammonia at night and will be making methamphetamine at night.” The affidavit also contained boilerplate language about narcotics trafficking at night and about officer safety.

The Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution proscribe unreasonable searches by the government of “persons, houses, papers, and effects.” The Fourth Amendment prohibits an unannounced search without a finding of reasonable suspicion to justify conducting the search in this manner. Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006) (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)); State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). When police seek authorization to conduct a nighttime search, Minn. Stat. ง 626.14 (2004) requires that the supporting affidavit demonstrate that such a search “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.”

Kerber argues that police are required to establish reasonable suspicion to justify a nighttime entry. But the restrictions on authorizing a nighttime search are statutory, not constitutional. State v. Goodwin, 686 N.W.2d 40, 44 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004). Courts have acknowledged that Minn. Stat. ง 626.14 creates a necessity requirement. E.g., State v. Quick, 659 N.W.2d 701, 719 (Minn. 2003). The necessity standard is met when an affidavit in support of a nighttime search demonstrates that the search warrant can be executed successfully only in the nighttime. State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978).

The Minnesota Supreme Court has nonetheless recognized that, “[a]lthough the general rule against nighttime searches is statutory, it may also have a constitutional dimension.” Id. at 839. Other jurisdictions have similarly recognized the constitutional underpinnings of restrictions on nighttime searches. E.g., United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (noting that “the factor of a nighttime search is sensitively related” to the constitutional reasonableness of a warrant); United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3d Cir. 1968) (“The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is ‘unreasonable.’”); State v. Richardson, 904 P.2d 886, 888 n.2 (Haw. 1995) (recognizing that “the time of a police search of an occupied family home may also have constitutional significance” (quotations omitted)); State v. Garcia, 45 P.3d 900, 905 (N.M. Ct. App. 2002) (discussing constitutional requirement of reasonable cause to justify nighttime search). The policy behind the Minnesota statute is “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.” Lien, 265 N.W.2d at 839-40; see also State v. Stephenson, 310 Minn. 229, 233, 245 N.W.2d 621, 624 (1976) (noting that policy behind prohibition of nighttime searches is to protect public from harshness of police intrusion during the night).

We conclude that the affidavit in this case is sufficient under both a constitutional standard of reasonable suspicion and the statutory standard of necessity. The affidavit indicated that, within 72 hours prior to the application for the search warrant, Kerber told a CRI that he was in the process of making methamphetamine, and the CRI saw materials used to manufacture methamphetamine in Kerber’s residence. The CRI also advised Deputy Schmidtke that Kerber was employed during the day and, as a result, would be making methamphetamine at night. This information is particular to Kerber and provides reasonable suspicion on which to authorize a nighttime search. See Lien, 265 N.W.2d at 840 (providing support for nighttime search when police know that suspect will not be home during the day and it is advantageous for them to conduct search when suspect is present).

Deputy Schmidtke’s affidavit also establishes that execution of the search during the nighttime was necessary to prevent the loss, destruction, or removal of the objects of the search. The process of methamphetamine manufacture consumes some ingredients and the state argued, without dispute, that the rest generally are disposed of on completion of the process. Given the information from the CRI that methamphetamine manufacture was taking place at night, it was reasonable for the magistrate to infer that the evidence of manufacture could be either consumed or destroyed by morning. See State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004) (noting that magistrate may draw reasonable inference from information contained in an affidavit), review denied (Minn. Apr. 20, 2004).

Kerber argues that our reasoning establishes a blanket authorization for nighttime entry whenever methamphetamine manufacture is involved. We disagree. The Minnesota Supreme Court recognized that any blanket exception to search-and-seizure requirements based solely on the presence of drugs is unconstitutional. Wasson, 615 N.W.2d at 320. Our reasoning is not based solely on the manufacture of a specific drug; rather, it is based on the totality of facts contained in the affidavit, including specific information about Kerber’s employment schedule and the nighttime methamphetamine manufacture inside his residence.

Kerber also claims that the affidavit in support of the search warrant impermissibly relied on boilerplate language. Kerber correctly argues that boilerplate language alone is insufficient to demonstrate the necessity of a nighttime search. Id.; Lien, 265 N.W.2d at 840. But as addressed above, the affidavit at issue contained more than just boilerplate language. Accordingly, the issuing magistrate did not err in granting authorization for a nighttime search.

Affirmed.