This opinion will be unpublished and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

A05-1486

 

State of Minnesota,
Respondent,

vs.

Donatus Ray Harrell,
Appellant.

 

Filed November 14, 2006

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. K2-03-4520

 

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

 

            Considered and decided by Wright, 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

 

WRIGHT, Judge

 

            Appellant challenges his conviction of first-degree sale of a controlled substance.  Appellant argues that the district court erred in denying his motion to suppress because (1) the search-warrant application did not establish reasonable suspicion to justify the no-knock entry; and (2) the search warrant was not supported by probable cause.  We affirm.

FACTS

 

On October 24, 2003, Investigator Douglas Wood of the Ramsey County Sherriff’s Department applied for a search warrant to search the upper apartment of 839 Sims Avenue in St. Paul.  Utility and postal records confirmed that appellant Donatus Harrell resided at this location.  The search-warrant application stated that multiple controlled buys of cocaine had been conducted with the help of a confidential informant (CI) at that address within 72 hours of the time the search-warrant application was presented to the judge for signature.  It also stated that the CI had, in the past, “correctly identified cocaine” and provided information “proven to be true and correct, through independent corroboration.” 

The search-warrant application summarized the controlled buys as follows: The CI met an unidentified middleman and they traveled together to 839 Sims Avenue.  The middleman approached the entrance and entered the upper apartment alone.  Shortly thereafter, the middleman exited the apartment and delivered cocaine to the CI.  According to the search-warrant application, the middleman told the CI that he had obtained the cocaine from “a black male individual who resides at 839 Sims Ave., (upper).”

Although a search warrant was issued on October 24, 2003, it was never executed.  Investigator Wood testified that, after receiving the search warrant, he obtained information that made it necessary to run a criminal background check on Harrell.  The criminal background check revealed seven arrests occurring in Illinois between August 1998 and June 2001.  They included arrests for five drug-related offenses, battery, and aggravated battery with a weapon.

            In light of these arrests, Investigator Wood redrafted the search-warrant application to include the dates and crimes for which Harrell had been arrested and to request authorization for an unannounced entry for officer-safety reasons.  This search warrant was issued with a no-knock provision on October 27, 2003.

            Officers executed the search warrant on October 30, 2003.  After entering the premises unannounced pursuant to the no-knock provision, the officers searched the premises and seized cocaine.  Harrell, the only person present at the time of entry, was arrested and subsequently charged by complaint with one count of first-degree sale of a controlled substance, a violation of Minn. Stat. §§ 152.021, subd.1(1), 152.023, subd. 3(a) (2002).

            Harrell moved to suppress the cocaine seized during the execution of the search warrant, arguing that the search-warrant application failed to make a particularized showing of reasonable suspicion to justify the unannounced entry and that the search warrant was not supported by probable cause.  Harrell also moved to suppress two postarrest admissions as derivative of the search.  The district court denied the motions.  Harrell waived his right to a jury trial and agreed to submit the case pursuant to the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), expressly preserving the suppression issue for appeal.  The district court found Harrell guilty of the charged offense, and this appeal followed.

D E C I S I O N

 

On appeal from a pretrial order denying a motion to suppress evidence, we determine whether, in light of the facts, the district court erred as a matter of law in declining to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

I.

Harrell argues that the district court erroneously denied the motion to suppress because the search-warrant application lacked particularized findings establishing reasonable suspicion to justify the no-knock entry.  When the material facts are not in dispute, we review de novo whether an unannounced entry was justified.  State v. Botelho, 638 N.W.2d 770, 777 (Minn. App. 2002).  To justify a no-knock entry, the “‘police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.’”  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (emphasis added) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)).  The quantum of proof necessary to establish reasonable suspicion does not require an airtight case that knocking and announcing would be dangerous or would inhibit effective investigation.  Id. at 322.  Rather, it requires something “more than an unarticulated hunch,” id. at 320, but less than an “objectively reasonable belief,” id. at 321.  Indeed, to satisfy this reasonable-suspicion standard, the police “must be able to point to something that objectively supports the suspicion at issue.”  Id. at 320. 

Although the evidentiary burden to obtain a no-knock provision is not high, the bare assertion that a controlled-substance crime is under investigation is not enough.  Botelho, 638 N.W.2d at 778; Wasson, 615 N.W.2d at 320.  An officer’s search-warrant application must identify those particularized circumstances that support a finding of reasonable suspicion justifying a no-knock entry; general or boilerplate language is insufficient.  See Botelho, 638 N.W.2d at 778-79 (holding that limited and vague allegation that unidentified periodic visitors with unspecified drug, dangerous-weapon, and obstructing-legal-process histories frequented premises did not satisfy particularized-showing-of-reasonable-suspicion standard); Wasson, 615 N.W.2d at 320-21 (holding that allegations that ongoing drug activity occurred on premises, including sale to CI, and that numerous weapons were removed from premises when search warrant was executed three months earlier satisfied particularized-showing-of-reasonable-suspicion standard); State v. Barnes, 618 N.W.2d 805, 811-12 (Minn. App. 2000) (holding that allegations that several CIs reported high-level cocaine trafficking by defendant, officers conducted controlled buy, defendant had prior criminal record, and defendant was known gang member were sufficiently particularized), review denied (Minn. Jan. 16, 2001); State v. Martinez, 579 N.W.2d 144, 147-48 (Minn. App. 1998) (holding that general allegation that “persons who traffic in controlled substances are often armed with firearms and other dangerous weapons and will use these weapons” was not particularized), review denied (Minn. July 16, 1998).  But the evidence to support a no-knock entry may be of a less-persuasive character than otherwise required when the evidence is probative of a threat to officer safety.  Wasson, 615 N.W.2d at 321.

Here, the search-warrant application did more than merely aver that Harrell was involved in drug trafficking and, therefore, was dangerous.  Rather, it contained a particularized description of the circumstances giving rise to a reasonable suspicion that knocking and announcing before entering would be dangerous.  As in Wasson and Barnes, the search-warrant application provided information regarding ongoing drug activity, including detailed descriptions of the events occurring during the controlled buys from Harrell.  The search-warrant application also contained detailed information regarding Harrell’s criminal history, including separate arrests for two violent offenses in 1998—battery and aggravated battery with a weapon—and five drug arrests for more-recent drug offenses.  

Harrell argues that these prior arrests were too stale to support authorization of the no-knock entry.  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) (holding that search warrant lacked probable cause to believe drugs would be found at defendant’s residence at the time of search because information contained in search-warrant application was stale).  The inquiry for probable cause is whether evidence of a crime will be found in a particular place at a particular time.  Id.  Here, we consider the lower standard of reasonable suspicion, and our inquiry is narrower, namely, whether an announced entry would be dangerous or inhibit effective investigation of a crime. 

In State v. McCloskey, the defendant’s criminal record included two arrests, both more than ten years old at the time the search warrant was procured.  453 N.W.2d 700, 702 (Minn. 1990).  The McCloskey court held that these arrests had some probative value, albeit slight, in assessing whether probable cause existed for the issuance of the search warrant.  Id. at 704; see also United States v. Conley, 4 F.3d 1200, 1207 (3d Cir. 1993) (“The use of prior arrests . . . to aid in establishing probable cause is not only permissible,  . . . but is often helpful.”), cited with approval in State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996).  Because prior arrests, even arrests as old as those in McCloskey, are probative of probable cause, these arrests also are probative of the lower standard of reasonable suspicion.  See State v. Jones, 846 A.2d 569, 584 (N.J. 2004) (holding that it is logical to premise a no-knock provision, which requires only reasonable suspicion, on an arrest that requires probable cause to effectuate).  But see State v. Eason, 629 N.W.2d 625, 634-35 (Wis. 2001) (holding that 10-year-old arrest for aggravated assault does not establish reasonable suspicion that an unannounced entry will be dangerous, even when considered in combination with a controlled buy, because an arrest is “just that—an arrest, not a conviction”).  Therefore, the district court properly considered Harrell’s arrests, particularly his arrests from seven years earlier for battery and aggravated battery with a weapon, along with the more recent arrests for drug offenses, to determine whether reasonable suspicion existed to justify the no-knock entry.

The information supplied in the search-warrant application regarding Harrell’s arrests and the controlled buys is sufficient to make a particularized showing of reasonable suspicion.  Because this standard has been satisfied and because the no-knock entry was approved by a neutral and detached magistrate before the execution of the search warrant, the district court did not err in its determination that the no-knock entry was supported by reasonable suspicion that knocking and entering would be dangerous.[1]

II.

Harrell also argues that the district court erred in denying his motion to suppress because the search warrant was not supported by probable cause.  The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect citizens from unreasonable searches and seizures.  “With a few exceptions, a search is valid only if it is conducted pursuant to a valid search warrant.”  Botelho, 638 N.W.2d at 775 (quotation omitted).  And to be valid, a search warrant must be supported by probable cause that evidence of criminal activity will be found at the location to be searched.  Id.; Minn. Stat. § 626.08 (2004).

We afford the district court great deference when reviewing its determination of probable cause.  Botelho, 638 N.W.2d at 776.  We do not review those determinations de novo.  Id.  Rather, we assess whether the district court’s probable-cause determination is supported by a substantial basis.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  A “substantial basis” in this context means that, given the totality of the circumstances, there is a “‘fair probability that contraband or evidence of a crime will be found in a particular place.’”  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).  Applying the totality-of-the-circumstances standard, we review the search-warrant application as a whole, not its component parts in isolation.  Botelho, 638 N.W.2d at 776.

The search-warrant application at issue here contained two elements that are of particular relevance to our probable-cause analysis.  First, the search-warrant application identified the dates and offenses for which Harrell had been arrested.  The use of prior arrests to aid in establishing probable cause is not only permissible, but also is particularly helpful when the prior arrests were for crimes of the same general nature as the crime for which evidence is sought in the search warrant.  Conley, 4 F.3d at 1207, cited with approval in Lieberg, 553 N.W.2d at 56.  Here, five of Harrell’s seven arrests involved drug offenses similar in nature to the offense under investigation.

Second, the search-warrant application described in detail the controlled buys of cocaine from Harrell by the CI.  When a probable-cause determination is based in full or in part on information obtained from a CI, the basis for the CI’s knowledge and the CI’s reliability must be considered.  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  The basis of the CI’s knowledge is sufficient when, as here, the CI recently observed the incriminating conduct.  Id.  To assess a CI’s reliability, we consider several factors, including: (1) whether the CI is a first-time informant who has not been involved in criminal activity; (2) whether the CI has given police correct information in the past and this fact is explicitly stated in the affidavit; (3) whether there is sufficient police corroboration of the information supplied; (4) whether the CI has a motive to falsify information; (5) whether the CI voluntarily came forward to identify the suspect; (6) whether the affidavit refers to the CI’s involvement in a controlled buy from the suspect; and (7) whether the CI made a statement against the CI’s penal interests.  Id.

The search-warrant application states that Investigator Wood “knows the information provided by the CI has proven to be true and correct, through independent corroboration,” and that “the CI has correctly identified [c]ocaine in the past.”  The search-warrant application also specifically refers to multiple controlled buys from Harrell.  Many of the CI’s observations were corroborated by the officers who maintained surveillance on the CI and the middleman during the controlled buys.  These facts demonstrate the basis of the CI’s knowledge and that the CI was sufficiently reliable.  Based on the information provided in the search-warrant application, there was a fair probability, given the totality of the circumstances, that drugs and other evidence of a crime would be found on the premises to be searched. 

Because reasonable suspicion existed to justify the no-knock provision in the search warrant and because the search warrant was supported by probable cause, the district court properly denied Harrell’s motion to suppress.

Affirmed.