State v. Botelho

638 N.W.2d 770, 2002 Minn. App. LEXIS 14, 2002 WL 4568
CourtCourt of Appeals of Minnesota
DecidedJanuary 2, 2002
DocketC3-01-198
StatusPublished
Cited by1 cases

This text of 638 N.W.2d 770 (State v. Botelho) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Botelho, 638 N.W.2d 770, 2002 Minn. App. LEXIS 14, 2002 WL 4568 (Mich. Ct. App. 2002).

Opinion

G. BARRY ANDERSON, Judge.

OPINION

The district court found appellant guilty of second-degree possession of cocaine after appellant entered a Lothenbach stipulation. Appellant appeals the district court’s denial of his motion to suppress evidence seized in connection with a search of his residence on three grounds: (1) that the search warrant for appellant’s residence was not supported by probable cause; (2) that the search-warrant application did not state a sufficient factual basis to support reasonable suspicion of a threat to officer safety, or a likelihood that evidence would be destroyed, justifying an unannounced entry; and (3) that the officers failed to reappraise the circumstances adequately before executing the unannounced entry. Because the factual basis in the search-warrant application does not support reasonable suspicion of a threat to officer safety, or a threat of destruction of evidence, justifying an unannounced entry, we reverse.

FACTS

In September 1999, a St. Anthony police officer was informed that a concerned citi *774 zen had reported suspicious activity at appellant’s residence. The suspicious activity consisted of multiple cars frequenting the residence, stopping only briefly, at all hours of the day. The citizen and St. Anthony police officers immediately began to monitor and record the vehicles’ license-plate information.

The officer initiated a criminal investigation and discovered that in July 1999, an alleged assault occurred at appellant’s residence. According to the police report, the alleged assault victim declined to press charges, but told police that drugs were present and used at appellant’s residence. The officer subsequently conducted a garbage search and found, among other things, “small round pieces of tin foil that had holes punched in them with a burned residue on top.” The residue tested positive for cocaine.

In October 1999, a few days after he conducted the garbage search, the officer requested district court approval of a search warrant for appellant’s automobile and residence. The officer’s application stated that he believed narcotics and controlled substances were present at appellant’s residence and in appellant’s automobile. The officer also requested the district court authorize an unannounced, or “no-knock,” entry, “to ensure the safety of the officers * * * and to avoid the destruction and/or removal of the contraband and evidence therein.” The officer further stated in his application:

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:
Your affiant has learned that illegal drugs are being used at this address, and due to the easy availability of the destruction of these drugs, and the practice of drug dealers being armed with weapons. Furthermore, your affiant has also learned that people frequenting the address having [sic] dangerous weapon criminal histories as well as histories reflective of obstructing legal process.

(First alteration in original.) 1 Based solely on the officer’s application, the district court approved the search warrant and the unannounced entry.

On October 8, 1999, at approximately 9:00 a.m., the police executed the search warrant. The officer approached the front door of the residence and, using a sledgehammer, proceeded to break down the door. Officers entered the residence, announced their presence, arrested appellant, and seized approximately 7.2 ounces of cocaine and a large amount of cash from a bedroom safe.

The state charged appellant with second-degree possession of cocaine, a violation of Minn.Stat. § 152.022, subds. 2(1), 3(a) (1998). At an omnibus hearing, the officer testified as described above and confirmed that, as part of his preliminary investigation, he checked the license plates of the vehicles frequenting appellant’s residence and determined that the vehicles were registered to individuals with criminal histories that included drug, dangerous weapons, and obstructing legal process offenses. The officer also admitted that the officers performed a cursory reappraisal of the need for the unannounced entry before breaking down appellant’s door. The officer testified that

*775 we looked at the property itself. I put the officers in position. We didn’t see that the door was open or that there was any other way of entering the place, and then [we] decided to go ahead and force open the door as directed by the search warrant.

But the officer did not verify whether the individuals frequenting the residence were the vehicles’ registered owners with criminal histories. The officer admitted that he had no specific knowledge that the individuals entering appellant’s residence, or appellant, possessed weapons on their person. The officer also admitted that he had no particular information to make him suspect that the individuals inside the residence would destroy drugs upon execution of a search warrant; rather, the officer stated that he knew from his significant experience as a police officer that cocaine, the drug he was searching for, was readily disposable.

ISSUES

I. Was the search warrant for appellant’s residence supported by probable cause?

II. Did the search-warrant application state a sufficient factual basis to support reasonable suspicion that an unannounced entry was justified?

III. Did the officers fail to reappraise the circumstances adequately before executing the unannounced entry?

ANALYSIS

I. Was the search warrant for appellant’s residence supported by probable cause?

Appellant first argues that the search warrant for his residence was not supported by probable cause because the search-warrant application relied on citizen informants whose credibility was unconfirmed. Appellant argues that the officer’s application contains less information than the application at issue in State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App.1991), where this court found a lack of probable cause for police to search a residence for drugs. 2 The officer’s application, according to appellant, contains “no independent substantiation of either the unidentified citizen’s information or that of the alleged and unidentified assault victim’s information.” Appellant argues that in order to establish the informants’ credibility, the application must provide a judge with enough information for her to assess the informants’ credibility.

The United States and Minnesota constitutions protect citizens from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. “With a few exceptions, a search is valid only if it is conducted pursuant to a valid search warrant.” Albrecht, 465 N.W.2d at 108 (citation omitted). A search warrant must be supported by probable cause. Minn.Stat. § 626.08 (1998); State v. Wiley,

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Cite This Page — Counsel Stack

Bluebook (online)
638 N.W.2d 770, 2002 Minn. App. LEXIS 14, 2002 WL 4568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-botelho-minnctapp-2002.