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State v. Bourke

August 3, 2006

STATE OF MINNESOTA, RESPONDENT,
v.
RICHARD LOWELL BOURKE, APPELLANT.



SYLLABUS BY THE COURT

The district court did not err in admitting evidence obtained as a result of a warranted, nighttime search of appellant's property where the application for the warrant established reasonable suspicion that a nighttime search was necessary.

Affirmed.

The opinion of the court was delivered by: Gildea, Justice

Heard, considered, and decided by the court en banc.

OPINION

Richard Lowell Bourke was found guilty of conspiring to manufacture methamphetamine and sentenced to 72 months in prison. Bourke argues that the district court erred in denying his motion to suppress the evidence seized during the nighttime search of his property. Bourke contends that the search warrant application did not contain specific facts to justify a nighttime search as required by the constitution and Minn. Stat. § 626.14 (2004). The court of appeals affirmed the district court. State v. Bourke, No. A04-1121, 2005 WL 1514324, at *2 (Minn. App. June 28, 2005). We affirm.

Isanti County Deputy Sheriffs Lisa Lovering and Robert Bowker drove to Richard Lowell Bourke's property at approximately 8:00 p.m. on November 7, 2002. A bonding agent had contacted Lovering to inform her that William Kelly Brown, who was wanted on an outstanding felony warrant, was staying in the pole barn on Bourke's property. Lovering knocked on Bourke's door and Bourke answered. While Lovering spoke with Bourke, Bowker walked to the pole barn and looked through an uncovered window. Inside the pole barn, Bowker saw two men, guns in a gun rack, syringes, pipes, small straws, a fan, and a woman wearing latex gloves. Bowker thought methamphetamine was being manufactured inside the pole barn and that one of the men was Brown, and he shared these suspicions with Lovering when she finished talking with Bourke at the house and joined Bowker near the pole barn.

Although Bourke told Lovering that he had not seen Brown for about a week, Bourke told the officers that he would let them into the pole barn, which was located about 200 feet from Bourke's residence. The officers testified that as Bourke was opening the door of the pole barn, he yelled out, "cops" or "the cops are here." After seeing the three people in the barn gather up items and head toward the stairs to the barn loft, Bowker entered the barn, ordered all three people to the ground, and Bourke fled the scene.

Later that night, Isanti County Sheriff's investigator Chris Janssen applied for a warrant to search Bourke's residence and "any and all outbuildings located on [Bourke's] property." The application included a list of a number of items associated with the manufacture of methamphetamine that Janssen believed would be found on the property, and the attached affidavit established Janssen's familiarity "with various methods of processing, ingesting, and distributing controlled substances, as well as equipment and paraphernalia associated with these processes." The affidavit recited the factual events of the evening as follows:

On 11/7/2002 at 2020 hours Deputies Bowker and Lovering of the Isanti County Sheriff's Office responded to the residence of [Bourke] in an attempt to locate [Brown]. Brown had an active felony warrant for controlled substance from Anoka County. Deputy Lovering had received information that Brown was staying at a pole barn at the residence. Upon the deputies arrival Deputy Bowker went to the pole barn and while he looked through a window in an attempt to locate Brown he observed two males and a female at a table in the process of manufacturing methamphetamine. The homeowner Richard Bourke let the deputies into the pole barn and the three parties inside were placed under arrest and the homeowner fled the scene before he could be apprehended.

The application then indicated, "A nighttime search is (not) necessary (including the hours of 8:00 p.m. to 7:00 a.m.) to prevent the loss, destruction or removal of the objects of the search because: of the lateness of the hour and the possible destruction of evidence." The application requested that the warrant be issued to allow the search to be conducted "in the daytime or nighttime." The district court judge signed the warrant, which was dated November 7, 2002. The receipt and inventory of the search, filed the following day, indicated that the search was conducted at 11:30 p.m. on November 7, and listed a number of weapons and assorted drug paraphernalia that had been found on Bourke's property.

Bourke was arrested approximately 100 yards from his residence after a State Patrol helicopter located him.*fn1 Bourke was charged by complaint on November 8, 2002, for both manufacturing and conspiring to manufacture a controlled substance in the first degree. Prior to trial, Bourke made a motion to suppress all of the evidence obtained in the search, arguing that there was a "lack of sufficient information provided to the magistrate to justify the issuance of [a warrant] authorizing a nighttime search." The district court denied Bourke's motion in a written order.

After a bench trial on stipulated facts, the district court found Bourke guilty of conspiring to manufacture methamphetamine in violation of Minn. Stat. ยง 152.096, subd. 1 (2004). Bourke was sentenced to 72 months in prison. The court of appeals affirmed the district court's denial of Bourke's suppression motion. ...


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