Opinion
No. C8-01-1864.
Filed September 10, 2002.
Appeal from the District Court, Ramsey County, File No. KX-01-81.
Mike Hatch, Attorney General,; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
After the district court denied his pretrial motion to suppress evidence, appellant entered into a Lothenbach stipulation of facts, was found guilty of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b),and was sentenced to 60 months in prison. Appellant challenges his conviction arguing that (a) the search warrant for appellant's residence was not supported by probable cause because it relied on items illegally seized from appellant's trash; (b) the search warrant application failed to state a sufficient basis for an unannounced entry; and (c) the officers failed to reappraise the situation adequately before executing an unannounced entry. We affirm.
FACTS
In February 2000, St. Paul police entered appellant's residence at 1157 McLean Avenue, St. Paul, investigating allegations of drug use, and recovered marijuana and drug paraphernalia. The investigation was closed, but in March 2000, police officers again spoke to appellant about complaints that there was marijuana on the premises. During this conversation, appellant told the officers there were no guns in the house and that he was ineligible to possess a firearm. Appellant refused to allow the police to search the residence but did show the police where the controlled substances were. In October 2000, police investigated another report that appellant was still selling marijuana and that there were guns in the house.
Officer Weyker conducted a search of appellant's trash can that was located on his property, on one side of a narrow alley behind his garage. The barrel could not be placed nearer to the alley because the slope of the land would cause the barrel to roll into the alley and block it. Weyker recovered
[s]everal clear plastic baggies with knots tied in the ends and a straight cut across the edge * * *, a plastic baggie which contained a white powdery substance resembling a form of controlled substance, 3 ziploc baggies each containing a green leafy substance that was field tested * * * as being positive for marijuana, 18 syringes with possible controlled substance residue, many green seeds and more green leafy substance which also field tested as positive for marijuana.
The trashcan search also produced envelopes addressed to appellant and a receipt with appellant's wife's name on it.
The critical incident response team (CIRT) executed a search warrant at appellant's house at 1157 McLean Avenue, St. Paul. Prior to entering the house, the team had attended a briefing covering what the officers' positions were to be when entering the house and executing the warrant. During the search, police recovered a 12-gauge pump shotgun from an upstairs bedroom and an SKS automatic rifle with ammunition from an upstairs office.
The search warrant application alleged a need for an unannounced entry
(to prevent the loss destruction or removal of the objects of the search (and) to protect the safety of the peace officers) because; I believe they would attempt to destroy any evidence if given advanced warning. Any announcement would allow the suspects advanced time to facilitate any pre-plan to dispose of evidence. Also due to the knowledge of weapons, particularly in this case firearms, inside the house could cause harm to the entering officers if the suspects were given pre-warning of an unannounced entry, so we are requesting that unannounced entry is needed for all people's safety, officers, public, and the property.
The application further stated that Rodgers was a convicted felon who served time in Arizona for armed bank robbery and thus, as a convicted felon, was not allowed to possess weapons.
The CIRT leader testified that a no-knock warrant was required because they suspected that drugs and guns were located at appellant's residence. Officer Zebro testified that he was aware that appellant had convictions of armed robbery and numerous arrests, some involving felony convictions.
Appellant was charged with possession of a firearm by an ineligible person. The district court, following an omnibus hearing, denied appellant's motion to suppress. Appellant waived a jury trial, submitted the case on stipulated facts, and was found guilty and sentenced to a term of imprisonment of 60 months. This appeal followed.
DECISION Minnesota Constitution
Appellant argues that the search warrant was not supported by probable cause, claiming that the search warrant application relied on items seized illegally from appellant's trash bin. Appellant further asserts that he had a reasonable expectation of privacy in his garbage because his trash can was located behind his garage and, thus, was within the curtilage area of his dwelling. Respondent argues that appellant had no reasonable expectation of privacy in the trash can because it was located outside the curtilage. Both respondent and appellant agree that the district court was not asked to analyze this issue under the Minnesota State Constitution. Respondent argues that because the district court did not decide this issue, appellant has waived it.
We decline to address the issue presented by appellant as to whether he was afforded a greater expectation of privacy of his trash under the Minnesota Constitution than he would be afforded under the United States Constitution because it is not properly before this court. On appeal, appellant argues specifically that the search of his trash can was illegal under the Minnesota Constitution and thus the district court erred in not suppressing evidence conducted during a warrantless search of his trash. This issue had not been previously briefed and argued before the district court. The record is, accordingly, incomplete and inadequate for a thorough review on appeal. Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002) (stating that arguments raised for the first time on appeal will not be considered).
Fourth Amendment
Although the district court did not analyze the legality of the search under the Minnesota Constitution, the issue was thoroughlybriefed and argued before the district court under federal Fourth Amendment jurisprudence. When the district court made findings, the court diligently and fully considered whether appellant's Fourth Amendment rights under the United States Constitution were violated when police searched appellant's garbage. Therefore, the record is complete on this issue for a thorough review on appeal. State v. Bardley, 629 N.W.2d 462, 464 (Minn.App. 2001).
Appellant argues that he had a reasonable expectation of privacy in his trash because the area behind his garage was (1) not an open area, (2) not used by the public as a walkway, and (3) not where the trash service would enter to haul the garbage away and thus was within the curtilage of his residence. Appellant asserts that because he had reasonable expectation of privacy in his trash, police should have procured a search warrant and that, because it was a warrantless search, the evidence found in the trash and used as a basis for the search warrant to search his residence should have been suppressed.
The district court made findings on whether the garbage or trash (variously denominated) can was located within the curtilage.
[The trash can] was near the side or corner of the Rodgers' garage at 1157 McLean and that it was in the driveway to a parking space adjacent to the garage and that it was near the alley.
The court found that the alley was "too narrow to have the barrel sit in it and still have vehicles be able to drive past and use the alley" and that the downhill grade of the alley precluded placing the barrel in the alley because the barrel would roll into the alley or tip over. The district court determined that the property in the barrel was abandoned and thus "the defendant had no reasonable expectation of privacy." The court further found that
the [appellant's] Fourth Amendment rights were [not] violated by Officer Weyker's going into that area where the barrel was located in order to seize the abandoned property. The area was open, not enclosed; it was a few feet from and immediately adjacent to the public alley; it was an area used as a driveway or parking space which people approaching the Rodgers garage or home would be expected to walk; and it was the area to which the trash collection service was expected to go and then carry away the trash. This was not an area of curtilage entitled to be protected with the same privacy concerns as the dwelling itself.
(Emphasis added.)
Curtilage is defined as the "land or yard adjoining a house, usu[ally] within an enclosure. Under the Fourth Amendment, the curtilage is an area usu[ally] protected from warrantless searches." Black's Law Dictionary 389 (7th ed. 1999). The Minnesota Supreme Court in State v. Krech developed a four-factor test to determine if an area is curtilage and whether an area in question "is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection." State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (quotation omitted). A reviewing court must examine (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area in question is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. Id.at 636-37.
The record supports the district court's findings and conclusion that appellant's trash can was not located within the curtilage. The location of the trash can behind appellant's garage was impliedly opened to the public and thus not a protected private area of appellant's property. Appellant had taken no steps to protect the trash from observation from the general public and it was not in an enclosed area. We therefore conclude that the district court did not err in denying appellant's motion to suppress the evidence seized by police in the search of his trash can.
Probable Cause
Appellant next argues that the search warrant was not supported by probable cause because the application relied on information provided by a confidential informant whose credibility was not established. Appellant further argues that the search warrant failed to allege sufficient underlying facts to support a determination that drugs or weapons would be found on appellant's residence. The state argues that given the totality of the circumstances, the application contained sufficient information for an issuing magistrate to conclude that there was a fair probability that contraband would be found at appellant's residence.
An appellate court reviews the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). Substantial basis means that, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). "Elements bearing on this probability include information linking the crime to the place to be searched and the freshness of the information." State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). A reviewing court does not review each component in isolation and deference is given to a magistrate's probable-cause determination. Harris, 589 N.W.2d at 787. Marginal or doubtful cases should be resolved by the preference for warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
In this case, the facts provided with the application created a fair probability that drugs or guns would be found on the premises. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983). The supporting affidavit contained the following information: (1) the affiant, Officer Heather L. Weyker, had been with the St. Paul Police Department for three and one half years and is currently assigned to the St. Paul Police Force Unit, and in that capacity has investigated numerous narcotics offenses; (2) Weyker received information from a confidential concerned citizen (CCC) that appellant was observed selling marijuana residue from his residence; (3) the CCC personally observed guns at appellant's residence on several separate occasions; (4) appellant was selling guns and was known to loan guns to his friends on a regular basis; (5) a search of appellant's trash, conducted within 72 hours, uncovered several baggies with knots in them, a plastic baggie containing a white powdery residue substance, three baggies containing marijuana, and an envelope containing appellant's name and address; (6) the CCC had never been arrested, had no criminal history, had no involvement with any criminal activity, had been a law-abiding citizen of the community and had not given Weyker any reason to mistrust the information given regarding appellant; (7) appellant was known by the officer to use narcotics; and (8) appellant was a convicted bank robber. We conclude that a substantial basis was shown to allow a magistrate to conclude that probable cause existed to search appellant's residence.
Appellant also argues that the search warrant lacked probable cause because the confidential informant's reliability was not established. However, Weyker personally spoke with the CCC and conducted an independent investigation, which led her to recover evidence of controlled substances from appellant's trash. The evidence recovered from the trash can is sufficient corroborative evidence to establish the informant's reliability. See McCloskey, 453 N.W.2d at 703-04 (stating that an informant's tip, independently corroborated. may establish probable cause). We observe, further, that as an ordinary citizen, the informant's reliability should be presumed. Id. at 703.
Unannounced Entry
Appellant argues that the unannounced entry was not properly authorized because the officer failed to allege specific facts in the search warrant application to justify it. Where the material facts are not in dispute, this court independently reviews whether a no-knock entry was justified. State v. Barnes, 618 N.W.2d 805, 810 (Minn.App. 2000) (citation omitted), review denied (Minn. Jan. 16, 2001).
The standard for an unannounced entry is whether there was reasonable suspicion. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).
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.
Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S.Ct. 1416, 1421-22 (1997).
Boilerplate language, without particularized reasons for an unannounced entry, is insufficient to show that an announced entry would be dangerous or allow the destruction of evidence. Wasson, 615 N.W.2d at 320; see also State v. Martinez, 579 N.W.2d 144, 147-48 (Minn.App. 1998) (finding that officer's statement that "because of his experience he knew that the occupants would likely have and use weapons" was a general observation and not particular to the defendants), review denied (Minn. July 16, 1998). Judicial pre-approval for an unannounced entry and police compliance with established procedures weighs against excluding the seized evidence. Wasson, 615 N.W.2d at 321.
Appellant asserts that the application's "boilerplate" language failed to allege sufficient particular facts to justify a no-knock warrant. In this case, the application for the search warrant stated that an unannounced entry was necessary (to prevent the loss destruction or removal of the objects of the search (and) to protect the safety of the peace officers) because; I believe they would attempt to destroy any evidence if given advanced warning. Any announcement would allow the suspects advanced time to facilitate any pre-plan to dispose of evidence. Also due to the knowledge of weapons, particularly in this case firearms, inside the house could cause harm to the entering officers if the suspects were given pre-warning of an unannounced entry, so we are requesting that unannounced entry is needed for all people's safety, officers, public, and the property.
Appellant's reliance on State v. Botelho, 638 N.W.2d 770 (Minn.App. 2002), to support his argument that police failed to make a particularized showing of dangerousness or destruction of evidence to justify a no-knock provision is misplaced. In Botelho,this court found that:
Although the factual basis required for an unannounced entry is not high, * * * the very limited and vague allegations in the warrant application at issue here do not meet the particularized-showing-of-dangerousness standard articulated by the Richards Court and by our supreme court in Wasson and Garza. Botelho, 638 N.W.2d at 780-81. This case differs factually from Botelho. First, in Botelho, the application inferred a threat to safety because of the "practice of drug dealers armed with weapons." There was no evidence that the visitors to Botelho's residence were armed or particularly dangerous. "[T]o substantiate the need for a no-knock warrant an officer must establish more than that drugs are involved." Martinez, 579 N.W.2d at 147-48. Second, the officer in Botelho used boilerplate language "due to the easy availability and destruction of these drugs" in the application. A generalized showing of drug trafficking is not a sufficient justification for unannounced entry. Wasson, 615 N.W.2d at 320. This court in Botelho concluded that allegations in a search warrant application that "the practice of drug dealers being armed with weapons" and that unidentified "people frequenting the address hav[e] dangerous weapon criminal histories as well as histories reflective of obstructing the legal process" are not sufficiently detailed to support a particularized showing of dangerousness to officer safety.
Botelho, 638 N.W.2d at 781.
In this case, the search warrant did not mimic the generalized showing of drugs as a basis for the warrant as was the case in Botelho. The application stated that there is a knowledge of weapons, particularly in this case firearms, inside the house [that] could cause harm to the entering officers if the suspects were given pre-warning of an unannounced entry[.]
Here, the police were aware that appellant engaged in the sale of drugs and they were previously at appellant's home regarding a narcotics violation. Police were also aware that appellant had been convicted of armed bank robbery. Additionally, the CCC's information that weapons were in the residence, coupled with officers' previous encounters with appellant in which drugs were found in his residence, present sufficient facts to justify an unannounced entry. See Wasson, 615 N.W.2d at 320-21 (finding there was reasonable suspicion of threat to officer safety where the application stated that weapons had been previously seized from appellant's residence and there was an ongoing sale of drugs at the residence).
We conclude that there was a substantial basis for the magistrate to find probable cause existed to issue the search warrant and that the affidavit supporting the warrant application provided particularized reasonable suspicion for the magistrate to authorize an unannounced entry.
Threshold Reappraisal
Appellant argues, alternatively, that if the unannounced entry was justified, then the officers failed to reappraise the circumstances adequately before executing the no-knock entry.
Officers, before executing a warrant including an unannounced entry, must "make a 'threshold reappraisal of the need to execute the warrant.'" Wasson, 615 N.W.2d at 322 (quotation omitted). Where officers do reappraise the circumstances, this court must "independently determine whether what the officers observed [before making the unannounced entry] demonstrated that an unannounced entry was improper." Id. (citation omitted).
Appellant's argument, under Wasson, that the officers failed to reappraise the circumstances properly before executing the search warrant is incorrect. As in Wasson, the officers in this case requested an unannounced entry because (1) there was ongoing drug activity and (2) there was the presence of weapons. When executing the warrant, the officers in Wasson noticed two men sitting at a table. The supreme court held that the officers did not observe anything to dispel "their belief that weapons were present or provided additional information to suggest that there was no threat to officer safety." Id. Thus, the "officers were not required, based on their threshold reappraisal, to abandon the plan for an unannounced entry." Id.
In Botelho, this court followed Wasson and stated:
If there is no affirmative change in circumstances to suggest that officers need not conduct an unannounced entry, Wasson mandates that officers need not abandon their original plan for an unannounced entry.
Botelho, 638 N.W.2d at 782.
In this case, the officers drove by appellant's residence prior to executing the warrant and noticed that appellant's vehicle was parked outside, thus suggesting that there was "no affirmative change in circumstances" such as to bring the officers to abandon the plan for an unannounced entry. We conclude that because there was no such affirmative change in circumstances, the reappraisal met the standard established in Wasson.