State v. Bourke, No. A04-1121 (MN 6/28/2005)

• Decision Date: 28 June 2005
• Docket Number: No. A04-1121.,A04-1121.
• Parties: State of Minnesota, Respondent, v. Richard Lowell Bourke, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 1

Unpublished Opinion

State of Minnesota, Respondent, v. Richard Lowell Bourke, Appellant.

No. A04-1121.

Court of Appeals of Minnesota.

Filed June 28, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Isanti County, File No. K9-02-1344.

Mike Hatch, Attorney General, Thomas R. Ragatz, Mary McKinley, Assistant Attorneys General, and Jeffrey Edblad, Isanti County Attorney, (for respondent).

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, (for appellant).

Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.^*

UNPUBLISHED OPINION

KALITOWSKI, Judge

Appellant Richard Lowell Bourke challenges his conviction of first-degree conspiracy to manufacture a controlled substance contending that the district court erred by admitting evidence seized during a nighttime search that was improperly authorized by a warrant. We affirm.

DECISION

I.

Appellant argues that the search warrant did not contain objective facts to justify a nighttime search, and that therefore, the district court should have suppressed evidence seized during the search. "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). An issuing magistrate "is entitled to draw common-sense and reasonable inferences from the facts and circumstances given." State v. Eggler, 372 N.W.2d 12, 15 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985).

Minnesota law provides that

[a] search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of the facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.

Minn. Stat. § 626.14 (2002).

Nighttime searches are generally discouraged because of "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." State v. Lien, 265 N.W.2d 833, 839-40 (Minn. 1978). However, since the Minnesota statutory rule is designed to protect against intrusions in which persons are "roused out of bed and forced to stand by in their night clothes" while police search, if police know that the defendant is awake and dressed when they execute the search, the intrusion is lessened. Lien, 265 N.W.2d at 841.

Section 626.14 requires that the officer show to the magistrate that the warrant can only be executed successfully in the nighttime, and the application must include more than "bare assertions" to justify a nighttime search clause. Id. at 840. Appellate courts have approved of nighttime search clauses for warrants to search where the officer alleged in the application that firearms were recently present in the home because that showed the officers had a valid concern for their safety. See State v. Wasson, 602 N.W.2d 247, 251 (Minn. App. 1999), aff'd, 615 N.W.2d 316 (Minn. 2000) (affirming while discussing only the constitutionality of the no-knock clause in the warrant). Nighttime search authorizations have also been approved where the place to be searched is part of the crime scene so that evidence can be collected and preserved in a timely manner. See State v. Quick, 659 N.W.2d 701, 719 (Minn. 2003).

Appellant argues, but does not cite to published caselaw, that the standard for determining the validity of a nighttime authorization clause is the same as the standard for a no-knock clause—that of reasonable suspicion. See, e.g., Wasson, 615 N.W.2d at 320 (analyzing no-knock entry clause under Fourth Amendment reasonableness inquiry). We disagree. The two standards are distinct both in caselaw and because the no-knock entry standard stems from analysis under the Fourth Amendment, whereas the nighttime authorization standard stems from analysis under a Minnesota statute. See Quick, 659 N.W.2d at 719 (analyzing nighttime authorization clause under necessity standard); Wasson, 615 N.W.2d at 320 (analyzing no-knock entry clause under Fourth Amendment reasonableness inquiry); Lien, 265 N.W.2d at 836-41 (analyzing no-knock entry clauses and nighttime authorization clauses as two distinct inquiries).

From these cases, courts use a "reasonable suspicion" standard to test a no-knock entry clause and a necessity standard to determine if a nighttime...