Opinion
No. A03-545.
Filed March 23, 2004.
Appeal from the District Court, McLeod County, File No. K4-02-435.
Mike Hatch, Attorney General, and Michael K. Junge, McLeod County Attorney, (for respondent).
Richard L. Swanson, (for appellant).
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Forsberg, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges his conviction of first-degree controlled substance crime, arguing that the information presented in the search warrant application was insufficient to support a no-knock warrant. Because the application did not include sufficient particular circumstances to establish reasonable suspicion, we reverse.
FACTS
Shortly after receiving information from a concerned citizen (CC) that appellant Gordon Ray Anderson was selling methamphetamine in his residence, a deputy of the Southwest Metro Drug Task Force arranged for a confidential reliable informant (CRI) to conduct a controlled purchase at appellant's residence. The CRI was able to purchase .09 grams of methamphetamine from appellant.
Within 72 hours after the controlled purchase, the deputy applied for a warrant to search appellant's residence. The supporting affidavit included information provided by the CC and the details of the CRI's controlled purchase. On January 6, 2002, two days later, the deputy received information from dispatch that Gordon Ray Anderson had been convicted for unlawfully carrying a weapon in Texas in 1990. The following day, the deputy requested an unannounced nighttime entry by presenting the original warrant application with an amendment to the district court. The district court granted the unannounced nighttime entry.
The search of appellant's residence was executed on January 8, 2002, at 6:30 a.m. During the search, officers recovered 57 grams of methamphetamine; appellant was subsequently charged with possession of more than 25 grams of methamphetamine.
Appellant moved to suppress the evidence obtained in the search, claiming that the search warrant and affidavit lacked sufficient probable cause and that the nighttime no-knock entry was not justified. After the district court denied his motion, appellant waived his right to a jury trial, and the case was submitted to the district court on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty and sentenced him to 81 months, stayed pending this appeal. Appellant now challenges the district court's denial of his motion to suppress, arguing that the warrant application lacked sufficient reasonable suspicion to support a nighttime no-knock entry.
DECISION
Where the material facts are undisputed, an appellate court independently reviews whether a no-knock entry was justified. State v. Botelho, 638 N.W.2d 770, 777 (Minn. App. 2002). An inquiry into the need for an unannounced entry is part of the reasonableness inquiry under the Fourth Amendment of the U.S. Constitution. Garza v. State, 632 N.W.2d 633, 638 (Minn. 2001) (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918 (1995)).
"In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421 (1997). Reasonable suspicion has been defined as "more than an unarticulated hunch[;] 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).
Unlike the showing required to establish probable cause, a reasonable suspicion "showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Richards, 520 U.S. at 394-95, 117 S.Ct. at 1422. But "reasonable suspicion must be supported by a particularized showing of dangerousness, futility, or likelihood of destruction of evidence." Botelho, 638 N.W.2d at 778. Appellant argues that the search warrant application did not include a particularized showing of dangerousness. We agree.
When the deputy requested an unannounced nighttime entry, he attached the following addendum to the original search warrant application:
[Appellant] was convicted in the State of Texas for unlawfully carrying a weapon on 08-01-90. The original criminal history ran by your Affiant checked files in the State of Minnesota only. Your Affiant was also aware that [appellant] may have a military background and may have been a military police officer.
Your Affiant is aware that persons who sell and use drugs may possess weapons for their own protection. Your Affiant is also aware of the lay out of the Anderson farm site and feel[s] that a nighttime and unannounced approach is in the best interest for officer safety. The farm site is located in an area, which is wide-open and difficult for a safe approach. Any other approach during the daytime and unannounced may jeopardize the safety of Officers and Agents.
The addendum's allegation regarding appellant's alleged weapons conviction did not provide any specific details about the conviction, and was also more than eleven years old. The allegation about appellant's alleged military service also involved information too far into the past to create a reasonable suspicion about appellant's propensity for using weapons at the time the search warrant was executed. The allegation that persons who sell and use drugs may possess weapons is a general observation and not particular to appellant or the residence. See Garza, 632 N.W.2d at 638 (warrant alleging that persons involved in drug trafficking often destroy evidence and use violence, without particularized facts related to the residence, does not justify unannounced search); State v. Anhalt, 630 N.W.2d 658, 661 (Minn. App. 2001) (general observations regarding an officer's experiences with drug dealers, alone, are insufficient to justify an unannounced search). Finally, the allegation about the layout of the farm did not create a reasonable suspicion that anyone inside the residence would have and use weapons on approaching officers. We conclude that the warrant did not contain the required particularized showing of dangerousness.