This opinion will be unpublished and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

A05-2375

 

State of Minnesota,

Respondent,

 

vs.

 

Roosevelt Hunter,

Appellant.

 

Filed August 15, 2006

Affirmed; motion denied

Worke, Judge

 

Ramsey County District Court

File No. KX-05-1479

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Ass’t County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent);

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

WORKE, Judge

            This is an expedited appeal from a conviction for third-degree controlled substance offense in violation of Minn. Stat. § 152.023, subd. 1(5) (2004).  Appellant Roosevelt Hunter challenges the no-knock provision in the search warrant.  He has also filed a motion to strike parts of the respondent’s brief. Because we conclude the no-knock provision was supported by reasonable suspicion, and respondent’s brief does not reference matters outside the appellate record, we affirm appellant’s conviction and deny the motion to strike.

FACTS

 

Appellant was convicted of third-degree controlled substance offense for possessing marijuana with intent to sell.  Most of the marijuana was seized by police, pursuant to a search warrant, from a car parked in appellant’s garage.  Appellant challenges the validity of the no-knock provision in the search warrant.

            The search warrant application relied primarily on a recent controlled buy of marijuana that occurred at appellant’s house.  The application also cited a November 2003 controlled buy of cocaine from appellant.  The application proceeded to list appellant’s criminal record:

1982 [conviction] for Burglary, Simple Robbery, Theft, 1994 Possession of a firearm by a felon attempt to poss. Cocaine, 1995 firearms use in relat[ion] to drug trafficking, 1995 drug trafficking, aid/abet to use of a firearm, and 1996 possess with intent to distribute Cocaine, felon in possession of a firearm. 

The search warrant application requested authorization for an unannounced entry, stating it was necessary to prevent the destruction of evidence and protect the safety of the executing officers.   The request was based on the affiant’s experience and “based on the aforementioned information contained in the affidavit.”

In the district court, appellant challenged the search warrant on a number of grounds.  The Rasmussen hearing testimony and argument focused on appellant’s claim that the warrant was not supported by probable cause, while noting appellant’s challenge to the no-knock provision.  The district court denied appellant’s motion to suppress.  In ruling on the challenge to the no-knock provision, the district court merely noted that “[d]rugs and guns are pretty interconnected,” and stated that police were in the best position “to assess [or reassess at the scene] whether or not it’s necessary.”

D E C I S I O N

            This court independently reviews whether evidence obtained from a search warrant containing a no-knock provision should have been suppressed.  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000);  State v. Goodwin, 686 N.W.2d 40, 43 (Minn. App. 2004).

The standard for evaluating a no-knock provision in a search warrant is articulable suspicion.  Wasson, 615 N.W.2d at 320.  To obtain no-knock authorization, police must show “more than that drugs are involved.”  Id.  (citation omitted).  And “boilerplate language,” i.e., a showing that is not “particular to the search at issue,” is insufficient.  Id.;  see also Richards v. Wisconsin, 520 U.S. 385, 396, 117 S. Ct. 1416 (1997) (rejecting blanket exception to the knock-and-announce requirement for all felony drug cases).

Appellant argues that the search warrant application relies on “boilerplate language” and lacks any particularized showing of a need for no-knock entry.  He contends that both the warrant application and the district court’s ruling present generalized assertions regarding the connection between drugs and guns.

This court has recognized that Richards requires a case-specific support for a no-knock provision.  State v. Barnes, 618 N.W.2d 805, 812 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  The Barnes court, however, held that a warrant application need not cite information about “conditions inside the house” to meet the reasonable suspicion standard.  Id. at 811-12.  Barnes held that a warrant application stating that the defendant was a “known gang member,” with a criminal record, who had been observed participating in an “extensive” drug-dealing operation involving “large” amounts of cocaine provided reasonable suspicion supporting a no-knock authorization in the warrant.  Id.at 811.

The warrant application here listed appellant’s prior criminal convictions, which included four convictions, from 1994 to 1996, in which firearms were linked to drug dealing.  Although the references are cryptic, they describe the following: (1) felon in possession of a firearm, while attempting to possess cocaine; (2) use of a firearm in relation to drug trafficking; (3) aiding and abetting drug trafficking, while possessing a firearm, and (4) possession of cocaine with intent to distribute and felon in possession of a firearm.

            Appellant argues that this criminal history was too stale to support the no-knock request[1] Staleness is an issue that generally arises in assessing whether the higher standard of probable cause, required to support the issuance of a search warrant, has been met.  See State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).  And probable cause must exist not only to believe that the defendant is engaged in criminal activity, but that evidence of a crime will be found in a particular place at a particular time.  See id. at 751 (finding lack of a nexus to a particular place to be searched, as well as reliance on stale information).  Here, the standard is the lesser one of reasonable suspicion.  And, as this court noted in Barnes, police need not show that weapons are currently present in the house, only that the suspect is likely to possess them.

            Appellant’s 1994-96 offenses do not merely show his past possession of firearms, as he concedes.  They also show a connection between his possession of guns and his involvement with drugs.  The controlled buys cited in support of the search warrant application showed that appellant was continuing to deal drugs.  In the probable-cause context, evidence of an ongoing criminal activity can make otherwise-stale information reliable.  Souto, 578 N.W.2d at 750.  The affidavit here tends to show some continuity in appellant’s drug-dealing activities, even if it does not establish a continuous drug operation since 1996.  But more importantly, the affidavit only needed to provide reasonable suspicion that appellant’s current drug dealing would be connected with the use or possession of firearms.  The four prior convictions, although all around ten years old, are more than enough to establish a pattern of drug dealing while in possession of firearms.

            The state argues that appellant’s prior convictions were more relevant than they might appear because he was in prison for five years following the convictions.  Appellant has moved to strike this reference to testimony at the sentencing hearing, arguing that because the information was not available to the issuing magistrate or the omnibus-hearing judge in considering the no-knock request it should not be considered by this court.

            This court’s record is limited to “the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings.”  Minn. R. Crim. P. 28.02, subd. 8.  But the sentencing transcript is part of the record on appeal.  That statements made at sentencing are not relevant to a particular issue is not a basis for striking references to them from appellant’s brief.  See State v. Brown, 709 N.W.2d 313, 320 (Minn. App. 2006) (denying motion to strike references in brief claimed to be irrelevant to issues on appeal but taken from documents filed in the district court).  The function of a motion to strike is to remove references to facts not in the record.  See State v. Eibensteiner, 690 N.W.2d 140, 155 (Minn. App. 2004) (granting motion to strike facts not in record, declining to strike facts properly part of record).  It is not to attack the relevance of factual references, which the opposing party can challenge by counter-argument.

            The length of appellant’s prison sentence(s) following his 1994-96 convictions was not stated in the search warrant application and not known to the issuing magistrate, and apparently not available to the omnibus court in ruling on the motion to suppress.  Although we do not consider the information in deciding the no-knock issue, we deny the motion to strike.

            The final issue is presented by the Supreme Court’s recent Hudson decision holding that, at least for federal Fourth Amendment purposes, the exclusionary rule will not be applied to violations of the knock-and-announce requirement.  Hudson v. Michigan, 126 S. Ct. 2159 (June 15, 2006).  The state has filed a citation to supplemental authority citing Hudson.  See Minn. R. Civ. App. P. 128.05.  Appellant has not filed a response.

            Our supreme court has the authority to interpret the state constitution to provide greater protection than the federal constitution.  See State v. McCloskey, 453 N.W.2d 700, 701 n.1 (Minn. 1990) (declining to adopt U.S. Supreme Court’s Leon“good faith exception” to the exclusionary rule).  Whether the Hudson exception to the exclusionary rule for invalid no-knock provisions should be applied in Minnesota has not been briefed to this court.  See generally State v. Borden, 455 N.W.2d 482, 486 (Minn. App. 1990) (declining to address constitutional issue not briefed or argued on appeal), review denied (Minn. July 13, 1990).  And the application of Hudson in Minnesota may require a policy determination more appropriately made by the supreme court.  See State v. Zanter, 518 N.W.2d 52, 57 (Minn. App. 1994) (declining to apply Leon “good faith” exception absent “appropriate policy determination by the supreme court”), aff’d in part, rev’d in part on other grounds 535 N.W.2d 624 (Minn. 1995).  Thus, we decline to address the application of Hudson here.

            Affirmed; motion denied.