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State v. Dubiel

April 8, 2003


Hennepin County District Court File No. 01019117

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

The opinion of the court was delivered by: Stoneburner, Judge



Appellant DuBiel was convicted of and sentenced for fifth-degree controlled-substance crime. He appeals the conviction, advancing several arguments, including that the admittedly defective nighttime execution provision of the warrant was a constitutional violation requiring suppression of the evidence seized. We agree and reverse.


Based on a tip from a confidential reliable informant that he had personally observed that appellant was growing marijuana at his home in Minneapolis, police officer David Menter obtained information from the utility company that energy consumption during the previous seven months at appellant's residence was between two and four times higher than the average consumption for similar homes. Officer Menter applied for a search warrant based on the tip and energy-use information plus information he had obtained "from the community" that appellant was selling marijuana to his child's schoolmates. The application contained boilerplate language requesting permission for a no-knock, nighttime execution. The search warrant was issued and permitted nighttime, no-knock execution. The warrant was executed at 9:50 p.m., but the officers, who observed appellant sitting in a chair by the front door, knocked and identified themselves as police. Appellant opened the door and cooperated with the search. Police seized more than 42.5 grams of marijuana, drug paraphernalia, several rifles, shotguns, and a revolver from a locked firearms safe in the basement, and assorted ammunition from throughout the house.

Appellant was charged with controlled substance crime, fifth-degree-possession, in violation of Minn. Stat. § 152.025, subd. 2(1), subd. 3(a) (2000); § 609.101, subd. 3 (2000); and § 609.11 (2000). Appellant moved to suppress the evidence seized from his home arguing that the warrant application did not provide probable cause to justify the search. The district court denied the appellant's motion. Appellant then moved to suppress the evidence seized, arguing that the warrant application did not contain particularized reasonable suspicion to justify a nighttime search. The district court found that the application did not support the need for a nighttime search, but denied the motion to suppress the evidence based on the court's determination that the error was a minor defect and not a constitutional violation.

Appellant waived his right to a jury trial and agreed to a court trial on stipulated facts. The district court found appellant guilty of controlled-substance crime fifth-degree possessing marijuana in excess of 42.5 grams and firearms in violation of Minn. Stat. § 609.11. Appellant was sentenced to 36 months, executed, but the sentence is stayed pending appeal.


When the material facts are not in dispute, "the district court's decision whether to suppress evidence is a matter of law subject to independent review." State v. Wasson, 602 N.W.2d 247, 250 (Minn. App. 1999). Under Minnesota law, the police may execute a search warrant only between the hours of 7:00 a.m. and 8:00 p.m. unless the issuing court determines, on the basis of facts stated in the affidavit supporting the warrant application, that a nighttime search is "necessary to prevent the loss, destruction or removal of the objects of the search or to protect the searchers or the public." Minn. Stat. § 626.14 (2000). The district court found, and the state concedes, that the warrant application in this case did not contain sufficiently particularized reason to justify a nighttime or no-knock entry. But, relying on State v. Lien, the district court determined that violation of the statute was "technical" and that the search did not constitute a constitutional violation requiring suppression of the evidence seized. State v. Lien, 265 N.W.2d 833, 841-42 (Minn. 1978).

In Lien, a similarly defective search warrant was executed just after 9:00 pm.,*fn1 after police had observed people going in and out of Lien's house and immediately after the police saw Lien enter the house and leave the door slightly open. Lein, 265 N.W.2d at 841. The supreme court held that although the search violated the statute, the violation did not mandate exclusion of evidence seized. Id. at 835. The supreme court recognized that the statutory rule against nighttime searches "may also have a constitutional dimension." Id. at 839 (citing Justice Marshall's dissenting opinion in Gooding v. United States, 416 U.S. 430, 94 S. Ct. 1780 (1974) stating belief that the Constitution requires additional justification for nighttime search of a home).

Underlying the Minnesota statutory rule—as well as Justice Marshall's suggested constitutionally based rule—is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home. Lien, 265 N.W.2d at 839-40.

The supreme court emphasized that the police acted in good faith in reliance on the warrant and noted that there was considerable activity at the apartment, Lien had just returned home, was fully clothed, and his door was partly open. Id. at 841. The supreme court concluded that the statutory violation was ...

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