State v. Lien, No. 47669

• Citation: 265 N.W.2d 833
• Decision Date: 28 April 1978
• Docket Number: No. 47669
• Parties: STATE of Minnesota, Appellant, v. Robert LIEN, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 833

265 N.W.2d 833

STATE of Minnesota, Appellant, v. Robert LIEN, Respondent.

No. 47669.

Supreme Court of Minnesota.

April 28, 1978.

Syllabus by the Court

While information contained in the officer's affidavit presented to the magistrate was insufficient to justify inclusion of provisions authorizing either an unannounced entry or a nighttime execution of the search warrant granted, the district court erred in ordering suppression of the evidence seized because (1) the unannounced entry was justified by facts which arose at the threshold before execution of the warrant, and (2) the nighttime execution of the warrant was a statutory, not a constitutional, violation which under the circumstances does not mandate exclusion of the evidence seized.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Craig H. Forsman, Spec. Asst. Atty. Gen., St. Paul, D. P. Mattson, County Atty., Rochester, for appellant.

Mark G. Stephenson and Roger E. Petersen, Rochester, for respondent.

Considered and decided by the court without oral argument.

KELLY, Justice.

This is an appeal pursuant to Rule 29.03, Rules of Criminal Procedure, from a pretrial order of the district court suppressing evidence in a prosecution of defendant for possession of marijuana. The appeal raises the issue of the legality of an unannounced nighttime entry of a dwelling place to execute a search warrant for marijuana. The district court concluded that the search was illegal because the affidavit on which the warrant was based did not contain a sufficient factual showing to justify authorizing either an unannounced entry or a nighttime search. We agree with the district court that the information contained in the affidavit was insufficient to justify inclusion of provisions authorizing either an unannounced entry or a nighttime search. However, we believe that the unannounced entry was later justified by facts which arose at the threshold before the execution of the warrant, and we hold that the unjustified granting of permission for a nighttime execution of the warrant was a statutory violation which under the circumstances does not mandate exclusion of the evidence seized. Accordingly, we reverse the district court's suppression order and remand for trial.

On September 23, 1977, an officer of the Rochester Police Department applied to the county court for a warrant to search defendant and his apartment in Rochester for marijuana and other controlled substances, drug paraphernalia, and items tending to establish possession. The application and supporting affidavit identified defendant as "Bob," saying that his full name was unknown, and described him as being a white male in his mid-20's, 6 feet tall, of slender build, and having short light brown hair. In the section of the affidavit form provided for the facts tending to establish probable cause, the officer stated as follows:

"Affiant is a Rochester Police Officer assigned to the Rochester-Olmsted Narcotics Division. Affiant has been informed by a reliable confidential informant that within the past 48 hours said informant has been in the apartment occupied by 'Bob', described herein, at 319 Third Avenue Northwest, described herein, and saw a large amount of marijuana on said premises in the possession, control and custody of the person known as 'Bob'.

"Affiant believes said confidential informant to be reliable in that on one occasion said informant made a controlled buy of controlled substances, and on other occasions has given information to affiant concerning drug trafficking in the Rochester area which information has been corroborated through other reliable confidential informants. These instances have occurred within the past six months."

The section in the form relating to nighttime searches read as follows: "A nighttime search is necessary to prevent the loss, destruction or removal of the objects of the search because:" After the word "because" the officer added the phrase "it is unknown when the person described herein will be at the premises described herein." The section relating to the need for a provision authorizing an unannounced entry read as follows: "An unannounced entry is necessary (to prevent the loss, destruction or removal of the objects of the search (and) to protect the safety of the peace officers) because:" The officer simply crossed out the word "because" in this section and did not add any statement specifying why he thought destruction of the marijuana was imminent or the executing officers' safety in danger.

A county court judge found probable cause based on the warrant application and supporting affidavit and issued a search warrant authorizing a nighttime search and unannounced entry.

That evening at 8:50 p.m. three Rochester police officers along with a Minnesota Bureau of Criminal Apprehension agent and a deputy sheriff stationed themselves outside defendant's residence and prepared to execute the warrant as soon as defendant came home. Their information was that defendant probably would return home about 9:00 p.m. While waiting for defendant to arrive, the officers observed several people going in and coming out of defendant's apartment. Shortly after 9:00 p.m. the officers observed a car drive up and a person who fit defendant's description go into the residence.

The officers then approached the building. There was a window by the door, but the curtains were down and the officers could not see into the apartment. The evidence indicates that the door was slightly open. Pushing the door completely open, the officers rushed into the apartment with their firearms drawn. Once in, the officers announced that they were police officers and told everyone to get up against the walls. The officers proceeded to handcuff everyone in the apartment and commenced their search. The search resulted in the discovery of marijuana along with related items including drug paraphernalia.

As we stated earlier, in suppressing the marijuana and other items the district court ruled that the affidavit in support of the application for a search warrant did not contain a sufficient factual showing to justify inclusion of clauses authorizing unannounced entry and nighttime execution of the warrant. The court also rejected the contention that facts arose just before execution of the warrant which independently justified the unannounced entry.

1. There are three leading Minnesota cases dealing with the issue of unannounced entries to execute search warrants: State v. Parker, 283 Minn. 127, 166 N.W.2d 347

(1969); State v. Linder, 291 Minn. 217, 190 N.W.2d 91 (1971); and State v. Daniels, 294 Minn. 323, 200 N.W.2d 403 (1972).

(a) In Parker, the first of the cases, the police, while armed with a warrant to search for drugs which did not contain an unannounced entry clause, knocked on the door of a combination restaurant dwelling occupied by the defendant and, when he did not respond, they broke in without announcing their authority. In our opinion, which reversed a suppression order of the district court, we stated that we did not intend to adopt a blanket rule in all gambling and narcotics cases excusing the requirement that officers announce their authority and purpose before entering a suspect's home. However, we indicated that warrants containing express authorization for unannounced entries could be obtained by a showing to the magistrate that announcement would result in the destruction of evidence. Specifically, we stated as follows:

" * * * (W)here the affidavit in support of a petition for a search warrant sets forth 'exigent circumstances' with sufficient particularity to justify dispensing with the necessity for announcing authority and purpose, and the issuing magistrate includes in the search warrant specific authority to enter the premises without such an announcement, the entry is lawful and evidence thus obtained is not inadmissible on that account. Where the evidence presented to the issuing magistrate discloses facts which are reliably documented and furnish the magistrate with a substantial basis for believing that an announcement will result in the destruction of evidence, the magistrate is authorized to include in the warrant authority to dispense with the announcement. While we do not attempt to catalog all of the factors which are relevant in such cases, the intensity of the surveillance, the reliability of the informant, the corroborating evidence recited, and the criminal record of the defendant are some of the obvious considerations which will govern the magistrate's decision."

Although the warrant in the Parker case did not authorize an unannounced entry, we stated that the affidavit in support of the warrant, while not a model, would have been sufficient to justify such a clause. That warrant, which we reproduced in an appendix to our opinion, recited extensive police surveillance of the defendant's premises, which was frequented by known narcotics users, and that a reliable police informant had observed drug sales made there.

(b) The second case involving unannounced entries to execute search warrants is State v. Linder, 291 Minn. 217, 190 N.W.2d 91 (1971). In that case the police, who had a search warrant without an unannounced entry clause, knocked down a door without announcing their purpose when, after knocking and shouting "Police," they heard running footsteps. In sustaining the search, we stated that "the activity of someone running, coupled with the common knowledge that narcotics are easily disposed of by flushing them down the toilets, justified the officers' belief that a destruction of evidence was being attempted."

(c) The third case is State v. Daniels, 294 Minn. 323, 200 N.W.2d 403 (1972). This case is significant in three respects. First, it clearly articulates our opinion that, if at the time the police obtain a search warrant they have any facts which they believe would justify an unannounced entry, they should...