Opinion
No. A04-2469.
Filed July 31, 2007.
Appeal from the District Court, Otter Tail County, File No. K9-03-2220.
Lori Swanson, Attorney General, Kimberly R. Parker, Assistant Attorney General and David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, (for respondent).
John M. Stuart, State Public Defender, Paul J. Maravigli, 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This opinion will be unpublished and may not be cited except as provided by Minn.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 (2006).
UNPUBLISHED OPINION
Sara Thrune appeals from convictions of first-degree controlled-substance crime and aggravated robbery and the denial of postconviction relief. Thrune argues that the police lacked reasonable suspicion to request a search warrant authorizing an unannounced entry and that police officers did not adhere to constitutional knock-and-announce principles when they executed the warrant at her home. Because Thrune's challenge to the warrant on these grounds is presented only through her postconviction claim of ineffective assistance of counsel and the record does not support this claim, we affirm.
FACTS
A state trooper stopped a vehicle after midnight in November 2003. Because of peculiar behavior by the driver and one of the occupants, the trooper requested assistance and sergeant Kile Bergren arrived. During the stop, the officers discovered counterfeit United States currency and methamphetamine in the car. They arrested and later interrogated all four occupants.
Based on the information he received from the occupants, Bergren applied for a warrant to search Sara Thrune's trailer home for controlled substances, counterfeit currency, and materials or equipment used to make each. Bergren also requested authorization for a nighttime, unannounced search. The district court issued the warrant.
But the officers did not act on the court's authorization for a nighttime, unannounced search. At about 2:10 p.m. the same day, Bergren and Deputy James Stewart approached Thrune's home. The officers were dressed in civilian clothing, wearing jeans, sweatshirts, and orange hardhats. Bergren wore an orange traffic vest, and Stewart carried a notebook. Bergren explained that, because Thrune's home is some distance from the entrance to the trailer park, they decided to pose as electrical workers to avoid being detected as law enforcement as they approached Thrune's trailer.
Bergren knocked on Thrune's door several times. When she came to the door, Bergren stated that they had reports of electrical problems in the area, and he asked her whether her electricity was working. Thrune and the officers dispute what happened next. Bergren and Stewart assert that, after the brief questioning about her electricity, Bergren identified himself and Stewart as police officers with a search warrant, and then they entered the trailer. They contend that after they entered, other officers who had been waiting out of sight drove up to the trailer and also entered. Thrune counters that the officers never identified themselves, but simply handcuffed her when she opened her screen door and backed her into her home as other officers also entered. They did not identify themselves as officers, she claims, until they were in her living room.
Inside the trailer, the officers found methamphetamine, marijuana, and scraps of paper used to produce counterfeit currency. The state charged Thrune with first-degree conspiracy to commit a controlled-substance crime, first and second-degree controlled-substance crimes, and aggravated forgery. The district court denied Thrune's motion, which asserted that probable cause did not support the warrant and that the evidence should be suppressed. A jury convicted Thrune of all charges, and the district court sentenced her to 98 months' imprisonment for the controlled-substance offenses and 12 months' imprisonment for the forgery offense, to be served concurrently.
Thrune appealed but, at her request, this court stayed the appeal so that she could pursue postconviction relief instead. Thrune's petition for postconviction relief claimed that she received ineffective assistance of counsel because her trial counsel failed to challenge either the search warrant's authorization of an unannounced entry or the officers' execution of the warrant. The district court denied Thrune's petition after conducting an evidentiary hearing. It held that the unannounced-entry provision of the search warrant was invalid but that the invalidity was inconsequential because the officers executed the warrant using valid knock-and-announce procedures. Thrune appeals.
DECISION
The parties dispute which issues are before the court on appeal. The state addresses Thrune's challenges to the warrant and its execution through the framework of an ineffective-assistance-of-counsel claim, which was Thrune's stated ground for postconviction relief. Thrune contends that this "analysis of an ineffective assistance of counsel claim is inapplicable as Ms. Thrune did not raise this issue in her appeal." But the only procedural avenue through which we may review Thrune's warrant argument is the denial of postconviction relief. Thrune's pretrial challenge to the warrant was limited to her contention that probable cause did not support its issuance. Thrune did not challenge in the district court the unannounced-entry provision of the warrant or the officers' execution of the warrant, and this court will not review issues raised for the first time on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Thrune raised the warrant-execution challenges only through her postconviction argument that her trial counsel was ineffective for failing to raise them. Our order vacating the stay of her appeal stated that Thrune's appellate brief could "address issues raised and decided in the postconviction petition and order as well as challenges to the proceedings preceding appellant's conviction and to the sentence." State v. Thrune, A04-2469 (Minn.App. Oct. 30, 2006). But this statement cannot be construed to broaden the scope of review we would have had absent the postconviction proceedings. We therefore limit our review to whether Thrune established ineffective assistance of counsel.
A criminal defendant may petition the district court for postconviction relief to vacate a judgment, grant a new trial, or make another appropriate disposition. Minn. Stat. § 590.01, subd. 1 (2006). We review the denial of a petition for postconviction relief for an abuse of discretion. Jihad v. State, 714 N.W.2d 445, 447 (Minn. 2006). Our review is restricted to determining whether sufficient evidence sustains the postconviction court's findings. Id.
To prove ineffective assistance of counsel, an appellant must establish that her counsel's representation fell below an objective standard of reasonableness and that her counsel's errors affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); State v. Martin, 695 N.W.2d 578, 587 (Minn. 2005). An attorney's representation is objectively reasonable when he "provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances." State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). We presume that an attorney acted competently, and we give particular deference to an attorney's trial strategy. Bruestle v. State, 719 N.W.2d 698, 705 (Minn. 2006).
Thrune has not met her burden of proving that her trial counsel's representation fell below an objective standard of reasonableness. The failure to challenge the unannounced-entry provision and the officers' execution of the warrant was reasonable. Thrune bases her argument that the evidence should have been suppressed and that her convictions should be reversed on her assertions that the no-knock provision of the warrant was invalid and that the officers did not comply with constitutional knock-and-announce requirements. We need not address whether the postconviction court correctly found that the no-knock provision was invalid because the officers did not apply the no-knock provision when executing the warrant. The officers assessed the situation and found that an unannounced entry was unnecessary. See State v. Wasson, 615 N.W.2d 316, 322 (Minn. 2000) (stating that officers must make "threshold reappraisal" of need for unannounced entry before executing warrant authorizing no-knock entry). Even if the district court improperly authorized an unannounced entry, evidence resulting from a search need not be suppressed if the officers executed the warrant in accordance with knock-and-announce principles. See State v. Anhalt, 630 N.W.2d 658, 662 (Minn.App. 2001) (concluding that when officers did not make unannounced entry but adhered to knock-and-announce procedures when executing warrant, warrant treated equivalent to one without no-knock provision). Bergren and Stewart did not improperly execute the allegedly invalidly authorized components of the warrant.
Police officers generally must knock and announce their identity and purpose before attempting a forcible entry. Wilson v. Arkansas, 514 U.S. 927, 933-34, 115 S. Ct. 1914, 1916-18 (1995). This notice requirement serves several purposes, including preventing the unnecessary destruction of property, protecting innocent persons by minimizing the risk of entering the wrong premises, protecting persons against unnecessary shock or embarrassment, and reducing the risk of a violent response by persons on the premises. State v. Prudhomme, 287 N.W.2d 386, 389 (Minn. 1979).
Thrune's argument that the officers did not comport with knock-and-announce principles while executing the warrant relies primarily on her preferred resolution of a factual dispute. Thrune contends that the officers knocked but did not announce, instead rushing into her home as soon as she opened her door and identifying themselves only once inside. But Bergren and Stewart consistently testified at trial and at two postconviction evidentiary hearings that they engaged Thrune in a brief conversation about her electricity while standing outside the home and that Bergren announced that they were police officers with a search warrant. According to their testimony, after announcing their identity and purpose, they entered the trailer home and informed other officers waiting out of sight to enter. The postconviction court found their testimony to be credible. The record supports the finding based on that testimony, and we will not reweigh credibility determinations on appeal. See State v. Sletten, 664 N.W.2d 870, 876 (Minn.App. 2003) (stating that weighing witness credibility is within exclusive province of factfinder), review denied (Minn. Sept. 24, 2003).
Thrune bases her challenge substantially on the officers' use of a ruse by posing as electrical workers. But officers do not need a warrant to approach a home and knock on a door in hopes of engaging a suspect in conversation. State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990). Although Bergren and Stewart wore civilian clothes and posed as electricians, they maintained their charade only while outside the home. The supreme court has upheld police use of artifice, even without a warrant, when an officer does not intrude on a person's reasonable expectation of privacy and remains outside the dwelling. State v. Buchwald, 293 Minn. 74, 76-77, 196 N.W.2d 445, 447-48 (1972) (affirming conviction when officer posed as hippie, knocked on motel-room door, engaged occupant in conversation while remaining in hallway, and observed marijuana in room). Bergren and Stewart did not rely on the ruse to enter the home. Bergren identified himself and Stewart as officers while outside, and, according to the facts that support the district court's ruling, they entered only after announcing their identity and purpose.
Thrune cannot demonstrate that her trial counsel's failure to challenge the warrant's authorization of an unannounced entry amounted to ineffective assistance of counsel. Her counsel reasonably chose not to pursue a fundamentally flawed legal argument. The postconviction court therefore properly denied Thrune's petition for relief.