This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-313

 

 

State of Minnesota,

Respondent,

 

vs.

 

Edward Patrick Bane,

Appellant.

 

 

Filed May 1, 2007

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 05019163

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Edward Patrick Bane challenges his conviction and sentence for fifth-degree controlled substance offense and felon in possession of a weapon.  Because we observe no error in the district court’s decision to issue the search warrant and to authorize a no-knock nighttime entry, no abuse of discretion in the district court’s decision to exclude evidence from an unavailable witness at trial, and no error in the district court’s application of the career offender statute at appellant’s sentencing, we affirm.      

D E C I S I O N

            Warrant to Search Apartment

            Appellant claims that the warrant authorizing police to search the Brooklyn Park apartment where he was staying was issued without probable cause.  Appellate courts “afford great deference to the issuing judge’s determination on probable cause.”  State v. Gail, 713 N.W.2d 851, 858 (Minn. 2006) (quotation omitted).  The purpose of the warrant requirement is to allow the district court to evaluate the sufficiency of the evidence supporting the search warrant and to encourage police to seek such review.  See State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).  To achieve these purposes, “the resolution of doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.”  Gail, 713 N.W.2d at 858 (quotations omitted).

            Here, the search warrant affidavit sought to search the apartment for evidence of “possession and/or sale of illegal drugs,” because the affiant had “reason to believe that [the apartment] is being used as an outlet for drug use and trafficking.”  The affiant offered the following facts supporting issuance of the warrant:  (1) he was assigned to a case involving underage drinking involving Nicholas Rodriguez, who listed the apartment as his residence; (2) on March 23, 2005, Rodriguez was arrested for possession of methamphetamine (meth) and revealed his address at the apartment and admitted that he had used meth the “past couple of days”; (3) on March 24, 2005, Linda Bakken and Renee Patton were arrested for possession of 2.5 grams of meth while they were driving Rodriguez’s car; (4) Rodriquez stated that Bakken stayed with him “from time to time” at his apartment; and (5) the affiant observed Bakken leaving Rodriguez’s apartment; (6) when the affiant conducted a “knock and [t]alk” at the apartment on March 24, he heard “others in the apartment”; (7) when appellant answered the door, he advised the affiant that three others were in the apartment and that he was not supposed to let anyone in; (8) the affiant “could see a glass pipe sitting in plain view on the coffee table,” and based on his experience, he “could tell the pipe was one commonly used to smoke methamphetamine”; and (9) the affiant checked appellant’s criminal history and found that he had a 1992 second-degree murder conviction, a 2003 possession of meth conviction, and a 1999 arrest for possession of meth.

            Given the great deference that this court affords a district court’s probable cause determination, we conclude the facts enumerated in the search warrant application supported the issuance of the warrant in this case.  Recent events associated with the apartment, including the connection of those arrested for drug use and the observance of drug paraphernalia there, established a “fair probability” that other evidence of drug activity would be found in the apartment.  See Gail, 713 N.W.2d at 858-59 (supporting issuance of warrant, court finds it reasonable to infer that murder weapon could be located in apartment where defendant was arrested); State v. Ruoho, 685 N.W.2d 451, 457 (Minn. App. 2004) (upholding issuance of warrant to search suspected drug dealer’s apartment because it was “reasonable to assume that [dealer] would keep evidence of the alleged crimes in [his] place of residence,” even though probable cause affidavit did not establish drug activity at the residence), review denied (Minn. Nov. 16, 2004).  Further, knowledge that appellant had an extensive criminal history supported issuance of the warrant.  See State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005) (“A person’s criminal record is among the circumstances a judge may consider when determining whether probable cause exists for a search warrant.”).  While each piece of information contained in the affidavit might not have independently provided probable cause, when considered together the information is sufficient to support the warrant.

            Appellant also claims that the district court erred in allowing execution of the search warrant during an unannounced nighttime entry.[1]  We disagree.  The affiant sought the unannounced nighttime entry “to protect the safety of officers due to [appellant’s] criminal history and to help prevent any destruction of evidence.”  In a recent case, the supreme court determined that Minn. Stat. § 626.14 (2004) regulates the issuance of nighttime warrants.  State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).  In Bourke, the court declined to address any constitutional claims related to nighttime entry because the court generally avoids reaching constitutional claims when there is a statutory basis for ruling.  Id. at 926.  The court also enumerated the “quantum of proof required for the authorization of a nighttime search” as “reasonable suspicion to believe a nighttime search is necessary to preserve evidence or to protect officer or public safety.”  Id. (footnote omitted).

            Here, both of the general bases for a nighttime entry discussed in Bourke are supported by evidence stated in the affidavit.  Appellant had a criminal history that included convictions for second-degree murder and drug possession, so officers were reasonably concerned for their safety.  Police also suspected that they would find evidence of drugs in the apartment, and such evidence is easily destroyed.  Admittedly, this second claimed basis for the nighttime entry is somewhat weakened by the fact that police did not execute the search warrant until three days after it was issued.  Nevertheless, given all the facts, we conclude that police demonstrated that they had reasonable suspicion to believe a nighttime entry was necessary for officer safety and to preserve evidence.

            Exclusion of Unavailable Witness Testimony

            Appellant argues that the district court erred in declining to admit evidence of statements that Patton made that would have suggested that Rodriguez, not appellant, owned the revolver found in the apartment during the search.  Patton was unavailable at the time of trial because she had fled to Puerto Rico, but she had spoken to a police detective and a defense investigator before the case came to trial. 

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Jackson, 726 N.W.2d 454, 462 (Minn. 2007) (quotation omitted).  An otherwise inadmissible hearsay statement by an unavailable witness may be admitted at trial if the statement fits within the residual hearsay exception set forth in Minn. R. Evid. 807, which combines the former rules 803(24) and 804(b)(5), and provides that the statement must be offered “as evidence of a material fact,” must be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,” and admission of the statement must serve the purpose of the rules of evidence and the interests of justice.

            In an offer of proof, the defense investigator testified that when Patton spoke with him on July 18, 2005, she did not comment on ownership of the revolver found at the apartment.  However, nine days later, on July 27, Patton contacted a police detective, who testified that she told him that the revolver “was Nicholas Rodriguez’s gun.”  On August 10 the detective testified that he spoke with Patton again and asked her to “go over the phone conversation that we had earlier.”  In this conversation, she described the gun as “silver” and “possibly a revolver,” and she clarified that Rodriguez “did not say [the gun] was his,” only that “it was his to use.”  After hearing the proposed testimony from the investigator and the detective, the district court ruled that their testimony regarding Patton’s statements was inadmissible.

            The district court properly examined the totality of the circumstances.  See State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006) (applying totality of circumstances approach to determine whether statement of witness admissible under residual hearsay exception).  In particular, the court examined the “relevant factors bearing on trustworthiness” to determine that the evidence should be excluded.  These factors include discrepancies in Patton’s descriptions of the revolver and inconsistencies in identification of the gun’s owner.  Appellant’s contention that Patton’s statement regarding ownership of the revolver was the only material evidence on this point is inaccurate:  Rodriguez testified at trial that he did not own the revolver and other circumstantial evidence, including the location of appellant’s papers in the duffel bag that contained the revolver and the presence of the revolver’s safety lock keys on appellant’s key ring, suggested that appellant owned the revolver.  We therefore conclude that the district court’s decision to exclude Patton’s statements was a proper exercise of its discretion.

            Sentencing as Dangerous Offender

            Appellant argues that the district court erred in sentencing him as a dangerous offender under Minn. Stat. § 609.1095, subd. 2 (2004).  In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the Supreme Court set forth a requirement that a jury must find the facts that are used to increase a defendant’s sentence beyond the statutory maximum.  Following Blakely, the Minnesota legislature has enacted legislation that requires the use of sentencing juries in all sentencing departures sought after June 3, 2005.  See 2005 Minn. Laws ch. 136, art. 16, §§ 3-6 (enacting Minn. Stat. § 244.10, subds. 4-7 (Supp. 2005)).

            Appellant waived a sentencing jury on October 10, 2005, and his sentencing hearing was held before the court on October 11, 2005.  Because appellant’s sentencing hearing occurred after the effective date of the statute, his sentence was authorized by law. 

            Even if the statute did not apply to appellant’s sentencing, the district court had inherent authority to have a jury determine the salient facts for sentencing.  Since the filing of the parties’ briefs in this appeal, the supreme court has determined that “a district court [has] inherent judicial authority to respond to Blakely by impaneling a jury to make factual findings on aggravating sentencing factors when the legislature [has] not yet amended the unconstitutional . . . portions of the Minnesota Sentencing Guidelines.”  State v. Kendell, 723 N.W.2d 597, 610 (Minn. 2006) (citing State v. Chauvin, 723 N.W.2d 20, 24-27 (Minn. 2006).  We therefore conclude that the district court did not err in sentencing appellant after he waived his right to a sentencing jury.

            Affirmed.