State, City of Minneapolis v. Cook, C0-92-411
| Citation | 498 N.W.2d 17 |
| Decision Date | 19 March 1993 |
| Docket Number | No. C0-92-411,C0-92-411 |
| Parties | STATE of Minnesota, CITY OF MINNEAPOLIS, Petitioner, Appellant, v. Jason Thomas COOK, et al., Jason Charles Meili, Peter Joseph Speilbaur, Respondents. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court
Substantial violations of the procedural rule followed by this court for obtaining a telephone search warrant require, in this case, the suppression of the evidence seized in the search.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Robert J. Alfton, Minneapolis City Atty., Brian Bennett Huling, Asst. Minneapolis City Atty., Minneapolis, for appellant.
Warren Sagstuen, Asst. Hennepin County Public Defender, Minneapolis, for Jason Thomas Cook, et al.
Michael F. Sullivan, Minneapolis, for Peter Joseph Speilbaur.
Jerry Strauss, Bernick & Lifson, Minneapolis, for Jason Charles Meili.
Heard, considered, and decided by the court en banc.
Under the facts of this case, the defects in the search warrant obtained by telephone require suppression of the evidence seized in the search. For the reasons stated, we affirm the court of appeals and the trial court.
At about 11 p.m. on Sunday, July 21, 1991, Minneapolis police officers responded to complaints of a noisy, unruly party at defendants' duplex in south Minneapolis. As Sgt. Michael Fossum approached the residence he could hear music from a block away. As he got closer he observed more than a dozen individuals drinking and shouting from the second floor deck of the duplex.
This was not the first time the police had received complaints about defendants' activities. In the 5 months preceding July 21, officers had been to the duplex dozens of times in response to more than 75 citizen complaints for noisy parties, loud fireworks, fights, and other disturbances. Typically, the officers were confronted with large parties involving live music and crowds of 100 or more people carousing. On July 2, 1991, there had been a mediation session attended by several of the defendants, a police department representative, some neighbors, and a city council member. At this session, defendants admitted having parties and selling alcohol as a moneymaking enterprise. Defendants promised not to have any more large parties and not to disturb neighbors. Within a week, the promises were broken. More than ten citizen complaints for loud parties were made in the 20 days between the mediation session and the evening in question.
On the occasions when the officers would respond to the complaints, they could see and hear the party going on but were refused entrance to the duplex. Because the residents would not consent to a police entry and the police were without a search warrant, the officers could not enter the duplex. Consequently, on the evening of July 21, Sgt. Fossum felt he would need a search warrant to enter the premises. The sergeant believed it would take 3 to 4 hours to obtain a written warrant in the regular manner, and, therefore, he decided to obtain a telephonic warrant. Two officers were assigned to watch the house, additional officers were summoned, and Sgt. Fossum then placed a telephone call to Judge H. Peter Albrecht.
After being placed under oath, Sgt. Fossum explained the situation to Judge Albrecht and described the police department's past experiences at the duplex. The officer testified that he specifically requested authority to search for and seize alcohol, dispensing equipment, cash boxes, currency and other items evidencing sales of alcohol, and to identify the party's sponsors and make observations of the physical surroundings of the dwelling. Based on Sgt. Fossum's statements, the judge found probable cause and sufficient need for a search warrant. At 11:58 p.m. the judge, by telephone, authorized a search of the premises. This telephone conversation was not recorded. The officer did not read his statement from a prepared written application or from any notes, nor, apparently, did the judge make any significant notes of what was said over the telephone.
Sixteen minutes later, the officers approached the duplex. Seeing the officers coming, defendant Trevor Cook closed and locked the door. The officers announced their presence three times, stating they had a search warrant; and, when no one responded, they broke through the door with a sledge hammer. Once inside the duplex, the officers seized beer kegs, bar supplies, promotional banners, bottles of alcohol, fireworks, and a small amount of marijuana.
After completing the search, Sgt. Fossum went to precinct headquarters where the warrant application form was completed (including a two-page, single-spaced typed affidavit setting out the facts previously given the judge over the telephone), and the warrant itself was completed. The officer signed the application as the affiant and also signed the jurat with the phrase "for Judge H. Peter Albrecht." The officer also wrote on the warrant "for Judge H. Peter Albrecht," thereby indicating he had signed on the judge's behalf. A handwritten inventory of the items seized was also prepared and signed by Sgt. Fossum. The sergeant then returned to the duplex and left a copy of the search warrant and inventory. At 8 a.m. the morning of July 22, Judge Albrecht initialed and dated the search warrant, supporting affidavit, and inventory. The original copies of these documents were filed with the court.
All defendants were charged with misdemeanor counts for violation of the city ordinance against noisy parties, disorderly conduct under Minn.Stat. Sec. 609.72, subd. 1(3) (1990), and fireworks in possession under Minn.Stat. Sec. 624.21 (1990). Defendant Meili was further charged with the petty misdemeanor of possession of a small amount of marijuana under Minn.Stat. Sec. 152.027, subd. 4 (1990).
Judge Charles Porter, the presiding trial judge, granted defendants' motion to suppress the evidence seized, ruling that the state had failed to show a reasonable need for obtaining a search warrant over the telephone. The trial court took judicial notice that the duplex was less than 10 miles from Judge Albrecht's home and at least six other judges resided even closer, so that there was time for an officer to have appeared personally before a judge with a written affidavit. The trial court further observed that given the nature of the evidence seized, there was no significant risk of it being destroyed before a written warrant could have been obtained. The court of appeals affirmed in an unpublished opinion. We granted the state's petition for further review in light of our recent decision in State v. Lindsey, 473 N.W.2d 857 (Minn.1991).
In State v. Lindsey, supra, we reaffirmed our recognition of telephone search warrants, noting that we had first ratified their use in 1985 in State v. Andries, 297 N.W.2d 124 (Minn.1980). In both cases we cited Fed.R.Crim.P. 41(c)(2), and in Lindsey we quoted the rule in its entirety, indicating it was the procedure to be followed in obtaining a search warrant by telephone. In both cases we said, too, that a telephone search warrant should only be used when circumstances dictated a need to dispense with the more time-consuming process of obtaining a traditional warrant.
We will not again set out verbatim Fed.R.Crim.P. 41(c)(2). It is enough to say there are very specific procedures to be followed. For example, the magistrate must place under oath "each person whose testimony forms a basis of the application and each person applying for that warrant." A record must be made of the entire call after the caller has informed the magistrate of his purpose in calling, preferably on a voice recording device, but if none is available, then a stenographic or longhand record should be made. The record is to be certified or signed, and filed with the court. The person requesting the warrant must prepare a document known as the duplicate original warrant in writing in advance of his or her conversation with the magistrate. This document is read to the magistrate verbatim and simultaneously entered verbatim by the magistrate on a similar document form called the original warrant. If the magistrate is then satisfied that it is reasonable to dispense with a written affidavit and that the warrant should issue, he or she should direct the caller to sign the magistrate's name to the duplicate original warrant, and the magistrate should sign the original warrant. The exact time of the execution of the warrant should be written on both the original warrant and the duplicate original.
The purpose of these procedures is to have a record made contemporaneously with the authorization of the search warrant that will show both probable cause for a search and a reasonable need for the warrant to be issued telephonically, so that later, if need be, there is a basis for challenging the warrant that is not dependent solely on after-the-fact recollections. Lindsey, 473 N.W.2d at 865 (Wahl, J., dissenting) (); State v. Meizo, 297 N.W.2d 126, 129 (Minn.1980) (Todd, J., concurring) (). In addition, the federal rule procedures ensure that the police officers will actually have a warrant to carry with them and to display when they execute the search.
Even though a search warrant issued on an oral presentation to the judge may be constitutional, violation of the rules of procedure for obtaining the warrant may result in suppression of the evidence seized. Linds...
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