State v. RainesState v. Raines
- Reporters:
- , ,
- Before:
- Stoneburner
OPINION
STONEBURNER, Judge.Appellant challenges his conviction of controlled-substance crimes in the first degree, arguing that the district court erred by denying his motion to suppress evidence gathered pursuant to a warrant that he argues was defective because procedures for obtaining a warrant based on oral testimony were not followed. Because we conclude that the procedural defects were not serious violations that subverted the purpose of the procedures for obtaining a warrant based on oral testimony, we affirm.
FACTS
In the very early morning hours, the police found methamphetamine-manufacturing paraphernalia in a vehicle legally stopped for a traffic violation. The driver was arrested and provided information that he was assisting appellant in the manufacturing of methamphetamine and intended to return to appellant’s residence later that day to complete the “cook.” Appellant had been under investigation for alleged methamphetamine manufacturing for months. Based on information from the driver and information previously received from a confidential informant, an officer (applicant) prepared a search-warrant application for appellant’s residence. Applicant then telephoned a judge at 3:10 a.m. and requested that the warrant be issued by telephone request. The applicant read the prepared application and provided additional information requested by the judge, which was added to the written application. The judge approved the issuance of a nighttime, no-knock warrant, but never signed the warrant. The applicant recorded the entire telephone request.
The warrant was executed at 5:00 a.m. The police seized evidence of “cooked” methamphetamine, ingredients, and equipment used to manufacture methamphetamine. After attempting to flee, appellant was arrested and transported to jail. The inventory of his personal possessions at the jail listed “mise papers” among other possessions. Appellant was charged with first-degree controlled-substance crimes.
The recording of the warrant application was transcribed approximately 49 days after the warrant was executed. The original search warrant, the original application, the applicant’s affidavit, and a copy of the transcript were filed with the district court on the day of appellant’s omnibus hearing. Appellant moved to suppress the evidence seized under the warrant due to numerous violations of the procedures for obtaining a telephonic warrant under
The district court denied appellant’s motion to suppress. Appellant submitted the matter to the court for trial pursuant to State v. Lothenbach, 296 N.W.2d 854 *276 (1980), and was found guilty of first-degree controlled-substanee crimes. Appellant, was sentenced to 81 months in prison and now appeals his conviction based on the denial of his motion to suppress.
ISSUES
I. Did the district court err in denying appellant’s motion to suppress evidence seized pursuant to the execution of a telephonic warrant when several violations of the procedures set forth in
II. Is the district court’s finding that appellant received a copy of the warrant when it was executed clearly erroneous?
ANALYSIS
I.
When reviewing pretrial orders regarding suppression motions, an appellate court “may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).
All of the cases relied on by the parties and the district court on this issue predate promulgation of
In
State v. Lindsey,
473 N.W.2d 857 (Minn.1991), the defendant moved to suppress evidence seized pursuant to a telephonic warrant in which the oral request was not recorded. The supreme court identified the issue as “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.”
Id.
at 860. The supreme court noted the lack of any guidance at that time to police officers or courts in the issuance of telephonic search warrants.
Id.
at 861. The supreme court reiterated its prior holding that “whether or not to suppress evidence because police obtained the evidence in violation of a statute or rule is ‘quintessentially a judicial issue.’ ”
Id.
at 863 (quoting
State v. Mitjans,
408 N.W.2d 824, 830 (Minn.1987)). And the court noted that a number of cases already made clear its “judicial intent that a violation of a procedure such as that set forth in
In State v. Cook, 498 N.W.2d 17 (Minn.1993), no contemporaneous record of the telephonic application for a warrant was made, and the supreme court upheld the suppression of the evidence seized in the search. Id. at 18-19. Revisiting the procedures of the federal rule, the supreme court reiterated that “[pjroeedural defects which are minor and relatively insignificant need not require suppression,” but that “serious violations which subvert the purpose of established procedures will justify suppression.” Id. at 20. The supreme court stated that the purpose of the telephonic-request procedure
is to have a record made contemporaneously with the authorization of the search warrant that will show both probable cause for a search and a reasonable need for the warrant to be issued tele-phonically, so that later, if need, be, there is a basis for challenging the warrant that is not dependent solely on after-the-fact recollections.
Id. (citing Lindsey, 473 N.W.2d at 865 (Wahl, J., dissenting)). “There are two judicial concerns in connection with obtaining a search warrant by telephone: (1) Was there a demonstrated need for a telephone warrant in lieu of the traditional written application? and (2) Were the procedural requirements for obtaining a warrant by telephone duly followed?” Id.
In the
Cook
opinion, the supreme court specifically requested that the Advisory Committee on Criminal Rules prepare and submit for the court’s consideration a rule covering the application for warrants based on oral testimony.
Id.
at 22.
a. Demonstrated need
“An oral request for a search warrant may only be made in circumstances that make it reasonable to dispense with a written warrant. The judge or judicial officer should make this determination the initial focus of the oral warrant request.”
In this case, the applicant informed the judge that an accomplice, who had been arrested after leaving appellant’s residence, was planning to return to appellant’s residence “to help [appellant] complete the cook.” The applicant expressed concern to the judge that appellant would learn of the accomplice’s arrest over a police scanner that appellant was known to possess. The applicant also told the judge that the accomplice could not be kept from using the telephone in the jail for an extended period because he had expressed a desire to call his mother. The judge responded “okay” to this information but did not make any further inquiry into the circumstances that made it reasonable to dispense with a written warrant.
The application occurred at 3:10 a.m., but the judge’s home was less than ten miles from the sheriffs department where the applicant had already prepared a written search-warrant- application to use in the event that the judge declined to issue the warrant on oral testimony. In fact, the applicant read the written application to the judge over the telephone. The application expressed the concern about destruction of evidence if the search was not conducted immediately. ■ The judge did not find that concern sufficient to establish the need for a nighttime, no-knock warrant and obtained additional information from the applicant about appellant’s history of violence and the applicant’s personal knowledge that appellant carried a knife. At the judge’s request, this additional information was added to the written application. The applicant testified at the suppression hearing that obtaining the warrant on written application would have added approximately thirty minutes to the process.
The state argues that despite the lack of a direct discussion about the necessity of obtaining the warrant on oral testimony, the transcript of the oral request demonstrates that the need for the telephonic warrant was expressed to and accepted by the judge. At the suppression hearing, the applicant testified that the accomplice’s statement led him to believe that the manufacture of methamphetamine was in progress at appellant’s residence-when the accomplice was arrested. The applicant, who is also a certified clandestine-lab technician, testified about his investigative experience that, “.often times as soon as the [methamphetamine] is manufactured and completed, if parties are involved they all split the product and they leave.” He further testified about the general mobility of methamphetamine labs, that an oral request for the warrant was more expedient and less inconvenient for the judge given the early morning hour, and that producers endanger‘themselves when manufacturing methamphetamine because of the toxicity and explosive nature of the ingredients.
Appellant argues that because the judge did not make a “contemporaneous determination” of the reasonableness of the telephonic warrant, the evidence obtained as a result of the search should have been suppressed, and that even if the failure to make a determination of need is overlooked, the evidence did not establish the need for a telephonic warrant. We conclude that a sufficient contemporaneous record existed to allow appellant to challenge the warrant on a basis not dependent solely-on after-the-fact recollections, fulfilling the purpose of the procedural requirement of demonstrated need. We also conclude that the expressed need was sufficient under the circumstances to make issuance of the telephonic warrant reasonable. Furthermore, based on the supreme *279 court’s historic refusal to suppress evidence for minor violations, we conclude that even if failure to make a determination of need on the record violated rule 36.02, and even if this record was insufficient to establish need for a telephonic warrant, the violations were minor and did not require suppression of evidence seized under the warrant. There can be little doubt that the warrant would have been issued if the written application had been personally presented to the judge.
b. Other procedural defects
Appellant argues that other “pervasive non-compliance” with rule 36 requires that the warrant be declared defective and the evidence seized as a result of the warrant be suppressed. Appellant first argues that although the telephone conversation between the applicant and the judge was properly recorded, it was not timely transcribed and filed with the district court. When the recording is made by the applicant, as in this case, the tape “shall be submitted to the issuing judge or judicial officer as soon as practical, and in any event, not later than the time for filing as provided by Rule 33.04.”
Although appellant asserts that the lack of timeliness “left the process subject to manipulation and/or destruction of evidence,” and that the late filing denied him the opportunity to preview the evidence and to prepare and question the sufficiency of evidence until the day of the hearing, he has not provided any factual support for these assertions or any authority that he is entitled to suppression of the evidence as a result of an untimely filing. Appellant also complains that the applicant never submitted the original search warrant for the judge’s signature as required by rule 36.05, but does not assert that the filing of an unsigned warrant prejudiced him in any manner. The district court concluded that these procedural defects were minor and did not require suppression of evidence seized under the search warrant. We agree and hold that minor violations of rule 36 in the issuance of a warrant based on oral testimony which do not subvert the purpose of the procedures do not require suppression of evidence seized under the warrant.
II.
We find no merit in appellant’s assertion that the district court’s finding that he was provided with a copy of the warrant when it was executed, as required by
DECISION
The district court’s determination that minor violations of
Affirmed.
Notes
. Appellant‘s brief refers to