State v. Hunter, No. A05-2375 (Minn. App. 8/15/2006)
| Decision Date | 15 August 2006 |
| Docket Number | No. A05-2375.,A05-2375. |
| Parties | State of Minnesota, Respondent, v. Roosevelt Hunter, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Ramsey County, File No. KX-05-1479.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Ass't County Attorney, (for respondent);
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, (for appellant).
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
UNPUBLISHED OPINION
This is an expedited appeal from a conviction for third-degree controlled substance offense in violation of Minn. Stat. § 152.023, subd. 1(5) (2004). Appellant Roosevelt Hunter challenges the no-knock provision in the search warrant. He has also filed a motion to strike parts of the respondent's brief. Because we conclude the no-knock provision was supported by reasonable suspicion, and respondent's brief does not reference matters outside the appellate record, we affirm appellant's conviction and deny the motion to strike.
Appellant was convicted of third-degree controlled substance offense for possessing marijuana with intent to sell. Most of the marijuana was seized by police, pursuant to a search warrant, from a car parked in appellant's garage. Appellant challenges the validity of the no-knock provision in the search warrant.
The search warrant application relied primarily on a recent controlled buy of marijuana that occurred at appellant's house. The application also cited a November 2003 controlled buy of cocaine from appellant. The application proceeded to list appellant's criminal record:
1982 [conviction] for Burglary, Simple Robbery, Theft, 1994 Possession of a firearm by a felon attempt to poss. Cocaine, 1995 firearms use in relat[ion] to drug trafficking, 1995 drug trafficking, aid/abet to use of a firearm, and 1996 possess with intent to distribute Cocaine, felon in possession of a firearm.
The search warrant application requested authorization for an unannounced entry, stating it was necessary to prevent the destruction of evidence and protect the safety of the executing officers. The request was based on the affiant's experience and "based on the aforementioned information contained in the affidavit."
In the district court, appellant challenged the search warrant on a number of grounds. The Rasmussen hearing testimony and argument focused on appellant's claim that the warrant was not supported by probable cause, while noting appellant's challenge to the no-knock provision. The district court denied appellant's motion to suppress. In ruling on the challenge to the no-knock provision, the district court merely noted that "[d]rugs and guns are pretty interconnected," and stated that police were in the best position "to assess [or reassess at the scene] whether or not it's necessary."
This court independently reviews whether evidence obtained from a search warrant containing a no-knock provision should have been suppressed. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000); State v. Goodwin, 686 N.W.2d 40, 43 (Minn. App. 2004).
The standard for evaluating a no-knock provision in a search warrant is articulable suspicion. Wasson, 615 N.W.2d at 320. To obtain no-knock authorization, police must show "more than that drugs are involved." Id. (citation omitted). And "boilerplate language," i.e., a showing that is not "particular to the search at issue," is insufficient. Id.; see also Richards v. Wisconsin, 520 U.S. 385, 396, 117 S. Ct. 1416 (1997) ().
Appellant argues that the search warrant application relies on "boilerplate language" and lacks any particularized showing of a need for no-knock entry. He contends that both the warrant application and the district court's ruling present generalized assertions regarding the connection between drugs and guns.
This court has recognized that Richards requires a case-specific support for a no-knock provision. State v. Barnes, 618 N.W.2d 805, 812 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). The Barnes court, however, held that a warrant application need not cite information about "conditions inside the house" to meet the reasonable suspicion standard. Id. at 811-12. Barnes held that a warrant application stating that the defendant was a "known gang member," with a criminal record, who had been observed participating in an "extensive" drug-dealing operation involving "large" amounts of cocaine provided reasonable suspicion supporting a no-knock authorization in the warrant. Id. at 811.
The warrant application here listed appellant's prior criminal convictions, which included four convictions, from 1994 to 1996, in which firearms were linked to drug dealing. Although the references are cryptic, they describe the following: (1) felon in possession of a firearm, while attempting to possess cocaine; (2) use of a firearm in relation to drug trafficking; (3) aiding and abetting drug trafficking, while possessing a firearm, and (4) possession of cocaine with intent to distribute and felon in possession of a firearm.
Appellant argues that this criminal history was too stale to support the no-knock request1 Staleness is an issue that generally arises in assessing whether the higher standard of probable cause, required to support the issuance of a search warrant, has been met. See State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998). And probable cause must exist not only to believe that the defendant is engaged in criminal activity, but that evidence of a crime will be found in a particular place at a particular time. See id. at 751 (). Here, the standard is the lesser one of reasonable suspicion. And, as this court noted in Barnes, police need not show that weapons are currently present in the house, only that the suspect is likely to possess them.
Appellant's 1994-96 offenses do not merely show his past possession of firearms, as he concedes. They also show a connection between his possession of guns and his involvement with drugs. The controlled buys cited in support of the search warrant application showed that appellant was continuing to deal drugs. In the probable-cause context, evidence of an ongoing criminal activity can make otherwise-stale information reliable. Souto, 578 N.W.2d at 750. The affidavit here tends to show some continuity in appellant's drug-dealing activities, even if it does not establish a continuous drug operation since 1996. But more importantly, the affidavit only needed to provide reasonable suspicion that appellant's current drug dealing would be connected with the use or possession of firearms. The four prior convictions, although all around ten years old, are more than enough to establish a pattern of drug dealing while in possession of firearms.
The state argues that appellant's prior convictions were more relevant than they might appear because he was in prison for five years following the convictions. Appellant has moved to strike this reference to testimony at the sentencing hearing, arguing that because the information was not available to the issuing magistrate or the omnibus-hearing judge in considering the no-knock request it should not be considered by this court.
This court's record is limited to "the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings." Minn. R. Crim. P. 28.02, subd. 8. But the sentencing transcript is part of the record on appeal. That statements made at sentencing are not relevant to a particular issue is not a basis for striking references to them from ap...
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