State v. Lindsey

• Citation: 473 N.W.2d 857
• Decision Date: 16 August 1991
• Docket Number: No. C2-89-2280,C2-89-2280
• Parties: STATE of Minnesota, Appellant, v. Mose LINDSEY, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 857

473 N.W.2d 857

STATE of Minnesota, Appellant, v. Mose LINDSEY, Respondent.

No. C2-89-2280.

Supreme Court of Minnesota.

Aug. 16, 1991.

Rehearing Denied Sept. 13, 1991.

Syllabus by the Court

Under the facts and circumstances of this case, failure to follow preferred procedures for issuance of telephonic search warrant did not require the suppression of the evidence seized in the ensuing search.

Hubert H. Humphrey, III, Atty. Gen., and Tom Foley, Ramsey County Atty., Darrell C. Hill, Asst. Ramsey County Atty., St. Paul, for appellant.

Barry V. Voss, Calhoun Square, Minneapolis, for respondent.

Hubert H. Humphrey, III, Atty. Gen., James B. Early, Sp. Asst. Atty. Gen., St. Paul, for amicus curiae.

Considered and decided by the court en banc.

KEITH, Chief Justice.

We granted the state's petition for review of the court of appeals' decision reversing the conviction of Mose Lindsey of possession with intent to distribute cocaine. The drugs were found by police in an apartment used by Lindsey in a search authorized by a judge over the telephone after the applicant established probable cause. The trial court denied Lindsey's motion to suppress, finding no constitutional violation and that the statutory noncompliance did not warrant suppression of the evidence. The court of appeals reversed, concluding that the applicant failed to establish a need for dispensing with the normal requirement that the application be in writing and therefore suppression of the drugs found in the search was required. State v. Lindsey, 460 N.W.2d 632, 634-35 (Minn.App.1990). We reverse the decision of the court of appeals and reinstate the judgment of conviction.

I

In late October, 1988, Deputy Michael Hankee, an experienced narcotics officer with the Ramsey County Sheriff's Department, received information from two confidential informants about drug dealing at a specific unit in a St. Paul apartment complex. Deputy Hankee surveilled that location for a few days, for two hours or so at a time, during which he learned from the building management that there was heavy traffic into and out of the apartment, and that Lindsey had been making rent payments while the lessee was away. Hankee also learned that Lindsey had been arrested in September for possession of a controlled substance and that the lessee of the apartment had been arrested in 1985, 1987 and twice in 1988 for possession of controlled substances. The mother of the lessee had previously contacted Deputy Hankee to complain that defendant, who was living with her daughter, had involved her daughter in drug use. Another confidential informant also revealed that a white male with red hair was involved in the drug sales at this address.

On November 2, 1988, at approximately 11:00 a.m., Hankee observed the red-haired male meeting with the occupants of a car in the parking lot of the complex for approximately five to ten minutes. The red-haired male then exited the car and entered the apartment building and the unit under surveillance. One of two men Hankee identified as lookouts approached the vehicle and spoke with the two occupants. The vehicle then moved to just outside the window of the apartment, so anyone in the apartment could have looked down to see them. The red-haired male left the apartment, got into the car and met with the occupants for two to three minutes.

Based on these observations and their professional experience, Hankee and the surveillance officer accompanying him believed a drug transaction had taken place. They followed the car to the intersection of Dale and Iglehart, where they pulled over the vehicle. As he approached the vehicle, Hankee observed a baggie containing what appeared to be rock cocaine on the dashboard. At 12:30 p.m., Hankee arrested the occupants, Walter Burch and Marilyn Hill, who told the officers the cocaine was purchased from a red-headed male at the apartment building, and that this male got the cocaine from a man named Lindsey. They also told Hankee that Burch was just giving Hill a ride and that Burch had no involvement with the cocaine. While making the arrest at Dale and Iglehart, Hankee observed Burch, who was sitting in the back seat of the squad car, talking and making signals to a group of people on the sidewalk nearby. Hankee believed Burch was trying to get word back to the apartment that they had been arrested. Hankee determined Burch likely was expected back at the apartment building, and that if he did not return, or if word got back to the apartment of the arrest, evidence of other drugs there would be destroyed or moved.

Hill and Burch were taken to the jail and booked. Approximately thirty minutes after the arrest, Hankee returned to the apartment building and noticed the sentries still in place. Sitting in an unmarked car outside the complex, he called on his car phone an assistant county attorney and asked if he thought he could get a telephone warrant. The county attorney directed him to call a judge. Deputy Hankee reached a judge at approximately 1:09 p.m., explained the circumstances, and, when the judge assented to the telephone procedure, offered to tape record the conversation. The judge advised Hankee he did not think recording was necessary. At the Rasmussen hearing, Deputy Hankee testified he told the judge the names and criminal histories of the suspects they were investigating, including defendant, and, using the format of the search warrant, the same observations that Hankee later detailed in the affidavit. The judge authorized the search and instructed Hankee to document the telephone conversation and to return it to the judge as soon as possible after the search.

Hankee executed the warrant at 1:40 p.m., approximately one hour and ten minutes after Burch and Hill were arrested. The officers found approximately 13 grams of cocaine, three scales, and $1,800 in cash in the unoccupied apartment. Lindsey and the lessee of the apartment returned while the search was in progress and were arrested. Hankee left with Lindsey a written inventory of the items seized, which is part of the warrant form, but did not prepare the actual warrant section of the form at the premises. Hankee left the scene at 4:30 p.m., went back to his office and prepared the search warrant and affidavit. Hankee testified that to prepare the search warrant he used the notes he had used when speaking with the judge over the phone, and that when presented with the written copy, the judge indicated it reflected the telephone conversation held earlier that day.

II

The only constitutional error Lindsey charges in this appeal is the state's alleged failure to establish that Deputy Hankee was placed under oath for the telephonic warrant application. ¹ The fourth amendment to the United States Constitution and article I, Sec. 10 of the Minnesota Constitution require probable cause "supported by Oath or affirmation." U.S. Const. amend. IV, Minn.Const. art I, Sec. 10. Based on Officer Hankee's testimony and the documents presented, the trial court determined Hankee had been placed under oath. The trial court's factual findings may be set aside only if clearly erroneous. Minn.R.Civ.P. 52.01. Because the finding Hankee was placed under oath is reasonably supported by the record, the finding should not be set aside and Lindsey's claimed constitutional error must fail.

III

The critical issue in this case is whether the noncompliance with Minnesota statutes, which do not provide for or anticipate the use of telephone warrants, requires the suppression of evidence obtained through the execution of this type of warrant.

The traditional process for the issuance of a search warrant is well known. During an investigation, the police officer becomes aware that a warranted search, rather than a warrantless search, is required. The officer may call a supervisor for advice and assistance. The officer then prepares a written application, affidavit and warrant. The officer may obtain help in doing this from other officers and/or from a prosecutor or assistant prosecutor. The officer then finds a judge--a neutral, detached magistrate--and presents the application, affidavit and warrant. The judge must either administer an oath to the affiant or insure that the affidavit shows on its face that it was sworn to by the officer. The judge, after reading the application and affidavit and after asking any questions of the affiant, must make an independent determination of whether probable cause exists. If the application fails to satisfy the judge, the judge may reject the application or return it to the officer for more information or investigation. If, on the other hand, the judge is satisfied that probable cause is present, the judge may approve the application and sign the warrant. The officer and his colleagues then execute the search warrant, typically after identifying themselves and announcing their authority and contemporaneously providing the party whose privacy is being invaded with a copy of the written inventory of items seized. The officer who obtained the warrant then files a return with the issuing judge indicating the date and time of executing and what property was seized. For a more detailed summary of the process, see R. Van Duizend, et al., The Search Warrant Process 15-40 (Nat'l Center for State Courts 1985).

One of the key factors of the traditional search warrant process is that it takes time in order to prepare the application, affidavit and warrant and to find a judge and secure the needed authorization--according to one study, conducted by the National Center for State Courts, an average of 3 to 4 hours. Id. at 87. Largely because of the cumbersome nature of the traditional search warrant process, the Advisory Committee to the Federal Rules of Criminal Procedure recommended the adoption of R. 41(d)(2), authorizing the issuance of a search warrant upon sworn oral testimony communicated by telephone or other appropriate means...