State v. Bourke

• Decision Date: 03 August 2006
• Docket Number: No. A04-1121.,A04-1121.
• Citation: 718 N.W.2d 922
• Parties: STATE of Minnesota, Respondent, v. Richard Lowell BOURKE, Appellant.
• Court: Minnesota Supreme Court

718 N.W.2d 922

STATE of Minnesota, Respondent, v. Richard Lowell BOURKE, Appellant.

No. A04-1121.

Supreme Court of Minnesota.

August 3, 2006.

COPYRIGHT MATERIAL OMITTED

John Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, Thomas R. Ragatz, Mary McKinley, Assistant Attorney Generals, St. Paul, MN, Jeffrey Edbald, Isanti County Attorney, Cambridge, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

GILDEA, Justice.

Richard Lowell Bourke was found guilty of conspiring to manufacture methamphetamine and sentenced to 72 months in prison. Bourke argues that the district court erred in denying his motion to suppress the evidence seized during the nighttime search of his property. Bourke contends that the search warrant application did not contain specific facts to justify a nighttime search as required by the constitution and Minn.Stat. § 626.14 (2004). The court of appeals affirmed the district court. State v. Bourke, No. A04-1121, 2005 WL 1514324, at *2 (Minn.App. June 28, 2005). We affirm.

Isanti County Deputy Sheriffs Lisa Lovering and Robert Bowker drove to Richard Lowell Bourke's property at approximately 8:00 p.m. on November 7, 2002. A bonding agent had contacted Lovering to inform her that William Kelly Brown, who was wanted on an outstanding felony warrant, was staying in the pole barn on Bourke's property. Lovering knocked on Bourke's door and Bourke answered. While Lovering spoke with Bourke, Bowker walked to the pole barn and looked through an uncovered window. Inside the pole barn, Bowker saw two men, guns in a gun rack, syringes, pipes, small straws, a fan, and a woman wearing latex gloves. Bowker thought methamphetamine was being manufactured inside the pole barn and that one of the men was Brown, and he shared these suspicions with Lovering when she finished talking with Bourke at the house and joined Bowker near the pole barn.

Although Bourke told Lovering that he had not seen Brown for about a week, Bourke told the officers that he would let them into the pole barn, which was located about 200 feet from Bourke's residence. The officers testified that as Bourke was opening the door of the pole barn, he yelled out, "cops" or "the cops are here." After seeing the three people in the barn gather up items and head toward the stairs to the barn loft, Bowker entered the barn, ordered all three people to the ground, and Bourke fled the scene.

Later that night, Isanti County Sheriff's investigator Chris Janssen applied for a warrant to search Bourke's residence and "any and all outbuildings located on [Bourke's] property." The application included a list of a number of items associated with the manufacture of methamphetamine that Janssen believed would be found on the property, and the attached affidavit established Janssen's familiarity "with various methods of processing, ingesting, and distributing controlled substances, as well as equipment and paraphernalia associated with these processes." The affidavit recited the factual events of the evening as follows:

On 11/7/2002 at 2020 hours Deputies Bowker and Lovering of the Isanti County Sheriff's Office responded to the residence of [Bourke] in an attempt to locate [Brown]. Brown had an active felony warrant for controlled substance from Anoka County. Deputy Lovering had received information that Brown was staying at a pole barn at the residence. Upon the deputies arrival Deputy Bowker went to the pole barn and while he looked through a window in an attempt to locate Brown he observed two males and a female at a table in the process of manufacturing methamphetamine. The homeowner Richard Bourke let the deputies into the pole barn and the three parties inside were placed under arrest and the homeowner fled the scene before he could be apprehended.

The application then indicated, "A nighttime search is (not) necessary (including the hours of 8:00 p.m. to 7:00 a.m.) to prevent the loss, destruction or removal of the objects of the search because: of the lateness of the hour and the possible destruction of evidence." The application requested that the warrant be issued to allow the search to be conducted "in the daytime or nighttime." The district court judge signed the warrant, which was dated November 7, 2002. The receipt and inventory of the search, filed the following day, indicated that the search was conducted at 11:30 p.m. on November 7, and listed a number of weapons and assorted drug paraphernalia that had been found on Bourke's property.

Bourke was arrested approximately 100 yards from his residence after a State Patrol helicopter located him.¹ Bourke was charged by complaint on November 8, 2002, for both manufacturing and conspiring to manufacture a controlled substance in the first degree. Prior to trial, Bourke made a motion to suppress all of the evidence obtained in the search, arguing that there was a "lack of sufficient information provided to the magistrate to justify the issuance of [a warrant] authorizing a nighttime search." The district court denied Bourke's motion in a written order.

After a bench trial on stipulated facts, the district court found Bourke guilty of conspiring to manufacture methamphetamine in violation of Minn.Stat. § 152.096, subd. 1 (2004). Bourke was sentenced to 72 months in prison. The court of appeals affirmed the district court's denial of Bourke's suppression motion. Bourke, 2005 WL 1514324, at *2. We granted Bourke's petition for review and now affirm.

I.

Bourke argues that the nighttime search of his property violated United States and Minnesota constitutional protections against unreasonable searches,² and also violated Minn.Stat. § 626.14.³ We have noted that the question of whether a nighttime search is authorized is the subject of statutory regulation in Minnesota, and that the issue "may also have a constitutional dimension." State v. Lien, 265 N.W.2d 833, 839 (Minn.1978). We address Bourke's statutory argument first because "[o]ur general practice is to avoid a constitutional ruling if there is another basis on which a case can be decided." Erlandson v. Kiffmeyer, 659 N.W.2d 724, 732 n. 7 (Minn.2003); see also In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn.1998) ("It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise.").

Minnesota Statutes § 626.14 requires that before the court issues a warrant for a nighttime search, it must first determine that the nighttime search "is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public." The statute thus contains the reasons for which the court could find necessity to authorize a search at night. The statute, however, does not set forth the showing required to sustain a conclusion of necessity.

In Lien, we said that "[w]hat the Minnesota statute seems to require is some showing to the magistrate that the warrant can only be executed successfully in the nighttime." 265 N.W.2d at 840.⁴ The affidavit reviewed in Lien stated only that "it is unknown when the person described herein will be at the premises described herein." Id. We concluded that such an assertion, which we noted "could be made in almost any case," was not sufficient to authorize a nighttime search. Id.

Beyond the general statement in Lien that the statute requires "some showing," we have not articulated the quantum of proof required for the authorization of a nighttime search under the statute. We now hold that the statute requires at least a finding that there is reasonable suspicion to believe a nighttime search is necessary to preserve evidence or to protect officer or public safety.⁵

The United States Supreme Court has noted that in the context of unannounced entries, the reasonable suspicion standard "strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by" such entries. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct 1416, 137 L.Ed.2d 615 (1997). Similar competing interests are at issue in the context of nighttime searches, and we conclude that applying at least the reasonable suspicion standard provides a way to balance these competing interests in this context as well.

"The policy behind prohibiting nighttime searches in the absence of specific judicial authorization in the warrant is to protect the public from the `abrasiveness of official intrusions' during the night." State v. Stephenson, 310 Minn. 229, 233, 245 N.W.2d 621, 624 (1976) (quoting United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir.1970)). We have said that, in enacting section 626.14, "[t]he legislature recognized that entry into a residence in the middle of the night is a greater invasion of residential privacy than entry during the daytime." State v. Winchell, 363 N.W.2d 747, 750 (Minn.1985); see also Lien, 265 N.W.2d at 839-40 ("Underlying the Minnesota statutory rule * * * is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.").

Requiring that a judicial officer conclude that there is at least a reasonable suspicion that the warrant needs to be executed at night, in addition to finding probable cause to issue the warrant itself, recognizes the legislature's policy judgment in providing a statutory protection against nighttime intrusions. At the same time, the reasonable suspicion showing is "not high." Richards, 520 U.S. at 394, 117 S.Ct. 1416. We have said that reasonable suspicion requires "something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue." State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). The reasonable suspicion...