Garza v. State, No. C8-00-526

• Decision Date: 16 August 2001
• Docket Number: No. C8-00-526, No. CX-00-527.
• Citation: 632 N.W.2d 633
• Parties: Xavier GARZA, Jr., Respondent, v. STATE of Minnesota, Petitioner, Appellant. Xavier Garza, Sr., Respondent, v. State of Minnesota, Petitioner, Appellant.
• Court: Minnesota Supreme Court

632 N.W.2d 633

Xavier GARZA, Jr., Respondent, v. STATE of Minnesota, Petitioner, Appellant.

Xavier Garza, Sr., Respondent, v. State of Minnesota, Petitioner, Appellant.

Nos. C8-00-526, CX-00-527.

Supreme Court of Minnesota.

August 16, 2001.

Michael Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, Lisa Borgen, Clay County Attorney, for appellant.

Mark D. Nyvold, for Xavier Garza, Jr., respondent.

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, for Xavier Garza, Sr., respondent.

Heard, considered and decided by the court en banc.

OPINION

STRINGER, Justice.

Following a controlled buy of marijuana by Fargo, North Dakota police, the trail of supply led to the home of Xavier Garza, Sr., his son, Xavier Garza, Jr. (collectively respondents) and Dora Garza, the wife of Xavier Garza, Sr., in Dilworth, Minnesota. A Clay County Sheriff's Office detective executed a search of the residence and storage shed. The warrant included a provision for an unannounced entry and was issued by a magistrate based upon the detective's affidavit that recited numerous incidences of prior drug dealing, possession and usage by Xavier Garza, Jr. but was not specific as to the need for an unannounced entry. When the warrant was executed, only Dora Garza was home. Based upon evidence seized in the raids, including currency used by Fargo police for the controlled buy of narcotics, respondents were arrested and charged with one count each of a fourth-degree controlled substance crime in violation of Minn.Stat. § 152.024, subd. 1(4) (2000). Respondents' pretrial motion to suppress the seized evidence based on the failure of the warrant to furnish particularized reasons for the need for an unannounced entry was rejected, and respondents were tried on stipulated facts and found guilty as charged. Respondents initially filed notices of appeal, but then instead pursued state postconviction relief. After the trial court denied postconviction relief, respondents appealed and the court of appeals reversed the convictions on the ground that the search warrant was issued without a showing of particularized circumstances justifying the need for an unannounced entry. We affirm in part and reverse in part.

On February 10, 1998, a Fargo, North Dakota police officer made a controlled buy of 56 grams of marijuana from Lucas Sipes. Sipes identified his supplier as "Guy" (later identified as Guy Nicholls) who lived in a trailer court in Moorhead, Minnesota, and said that Nicholls received his marijuana from a person named "Harvey" and it was delivered in a red Marlboro bag at Harvey's home in Dilworth, Minnesota. The next day the police set up a surveillance of Harvey's home in Dilworth, and observed Nicholls arrive in a vehicle with Rebecca Roth, enter the residence and leave with a red Marlboro bag. That same day the police seized three ounces of marijuana, packaging materials and a scale from Nicholls' trailer and arrested Nicholls and Roth. Roth provided a statement saying that respondents sold and stored marijuana at their house. Further evidence of drug dealing occurred on February 22, 1998 when Xavier Garza, Jr. was stopped by Dilworth police for a traffic violation and was found in possession of marijuana. On the morning of February 24, 1998 Dilworth police searched the garbage at the Garza residence and discovered a marijuana smoking device and small containers with marijuana residue.

Later in the day on February 24, 1998 a detective with the Clay County Sheriff's Department applied for a search warrant for respondents' residence and storage shed supported by an affidavit stating that authorities had reason to believe that they would find controlled substances and evidence of the sale and distribution of controlled substances at the Garza residence. It identified Garza, Jr. as the subject of a three-year investigation, his arrest for possession of marijuana in 1995 after receiving information that he was selling marijuana out of his residence, and observations of activity consistent with drug trafficking outside his residence. The affidavit further referred to an informant's statement that he purchased drugs from Garza, Jr., other information from various sources that Garza, Jr. was involved in the sale of drugs, Roth's statements to the police, the traffic stop, and the smoking device found in the garbage. The affidavit also included a request for an unannounced entry based on the following statement:

Persons involved in Drug trafficking will destroy evidence if given prior warning. Drug traffickers also will use violence if given prior warning therefore Law Enforcement needs the element of surprise to protect themselves from harm.

Based upon the affidavit, the magistrate issued the search warrant with a provision authorizing an unannounced entry for the Garza residence and the shed located on the southeast corner of the lot.

That same day authorities executed the search warrant, entering the Garza residence without announcing their authority or purpose. Neither respondent was home at the time the search was conducted but Dora Garza was present. Police found hidden under some clothing in Garza Sr.'s bedroom $1,465 in currency, including $150 in "buy money" from the Fargo Police Department narcotics "buy" fund. In Garza, Jr.'s bedroom police found marijuana, marijuana smoking devices, and other drug-related evidence. In the storage shed located outside the residence police found a pound of marijuana.

Respondents were charged with one count each of violating Minn.Stat. § 152.024, subd. 1(4) (sale of a controlled substance in a school zone). Respondents filed motions to suppress the evidence seized during the search of their residence on the grounds that the affidavit supporting probable cause for the search warrant contained reckless misrepresentations and omissions and that the application for an unannounced entry failed to establish particularized circumstances justifying the need for an unannounced entry. After an omnibus hearing the trial court denied the motions to suppress.

Respondents were found guilty following trials to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). They initially appealed directly to the court of appeals but were granted a dismissal without prejudice to pursue postconviction relief. Respondents' challenge to the unannounced entry was rejected on the postconviction court's determination that under our decision in State v. Lien, 265 N.W.2d 833 (Minn.1978), and the decision of the U.S. Supreme Court in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the particularized facts required to support an unannounced entry were supplied by police testimony at the omnibus hearing-Xavier, Jr.'s propensity for violence and his possible possession of a firearm-and that this testimony amounted to a "strong showing" that an announced entry would be dangerous to the officers. The state did not contest respondents' standing to raise the unannounced entry in light of their absence from their residence when the warrant was executed, nor did the trial court refer to it in its order denying postconviction relief.

The court of appeals reversed, relying on the decision of the Supreme Court in Richards and our decision in State v. Wasson, 615 N.W.2d 316 (Minn.2000). It reasoned that after Richards an unannounced entry must be supported by more than boilerplate language in the affidavit stating that an unannounced entry is necessary to avoid injury and destruction of evidence and evidence that the premises is being used for drug trafficking. The court then addressed the ruling by the postconviction court relying on the police testimony at the omnibus hearing to supply the missing particularized showing of need. The court of appeals held that statements made after-the-fact at an omnibus hearing cannot be the basis of an unannounced entry because they were not provided to the magistrate in the affidavit attached to the warrant application. Thus there was no advanced authorization of the unannounced entry. The court held that the search of the shed was also unauthorized because it was within the curtilage of respondents' home and was therefore subject to the same constitutional protection.

The state argued for the first time at the court of appeals that respondents did not have standing to contest the unannounced entry because they were not home when the search was conducted. The court of appeals disagreed holding that respondents had standing because they were long-time residents in their home. The state also raised a "good faith" exception argument under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Cal.1984), that even if the unannounced entry was unauthorized, the evidence seized should not be suppressed because the police "acted in good faith reliance on a search warrant issued by a neutral and detached magistrate." The court held that the Leon "good faith" exception rule does not apply to police failure to provide sufficiently particularized justification for an unannounced entry. The court therefore ordered that the evidence seized in the unannounced entry search must be suppressed and reversed the conviction.

I.

Because standing is a threshold issue, we begin with the state's argument that respondents do not have standing to contest the unannounced entry provision of the search warrant because they were not home when the search warrant was executed. The state did not raise an issue of standing at either the omnibus hearing or the postconviction hearing, and we ordinarily will not review issues that are raised for the first time on appeal unless a decision is necessary in the interests of justice. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). The record is silent as to harm that might have been inflicted, if any, by reason of the unannounced entry despite responden...