                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0821

                          Russelle Anthony Wech, petitioner,
                                      Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                                 Filed May 18, 2015
                                      Reversed
                                 Halbrooks, Judge


                            Ramsey County District Court
                              File No. 62-CR-10-7200

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

      Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and

Johnson, Judge.

                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges his conviction of fifth-degree controlled-substance crime and

the denial of his postconviction petition, arguing that (1) the district court erred by
denying his motion to suppress evidence obtained after a warrantless entry into his home

and a search incident to a warrantless arrest, (2) the postconviction court abused its

discretion by summarily denying his false-testimony and newly discovered evidence

claims, and (3) he received ineffective assistance of trial counsel. Because we conclude

that the district court erred by denying the motion to suppress, we reverse.

                                         FACTS

       On August 17, 2010, police officers responded to a 911 call of a “disturbed”

boyfriend present at the caller’s residence. The caller, A.H., also stated that there was an

active warrant for her boyfriend’s arrest. Upon arrival at the residence, the officers heard

a man and woman engaged in a loud argument upstairs. The door was ajar, and officers

entered immediately without waiting for permission and without verifying the existence

of the arrest warrant.

       The officers found A.H. and appellant Russelle Anthony Wech in the residence,

separated them, handcuffed Wech, conducted a pat search of his person, and found a

“bindle of hard pellet-like objects” in his pocket. The pills were submitted to the St. Paul

Police Department Crime Laboratory, and the test results indicated that the pills

contained ecstasy. The state charged Wech with fifth-degree controlled-substance crime–

possession, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2010).

       Wech moved to suppress the evidence obtained by the police officers, arguing that

the officers entered the residence, seized Wech, and searched his person unlawfully. The

district court held a suppression-motion hearing, and Wech’s intensive supervised release

(ISR) agent testified that Wech violated his parole by engaging in threatening behavior


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toward A.H.       The ISR agent stated that he initiated the arrest-warrant process at

10:00 p.m. on the night of the arrest and that the warrant became active at 10:17 p.m.

The arresting police officer testified that he responded to the 911 call at 10:01 p.m.,1

entered the residence at 10:04 p.m., handcuffed Wech at 10:05 p.m., and conducted the

pat search of his person immediately thereafter. The district court denied the motion to

suppress, finding that, even though the warrant was not yet in place, the officers lawfully

entered the residence and lawfully detained and searched Wech.

       Wech consented to a stipulated-evidence trial under Minn. R. Crim. P. 26.01,

subd. 4, and the district court found Wech guilty. The district court sentenced Wech to a

stayed sentence of 21 months in prison and placed him on probation for a period of five

years. Wech petitioned for postconviction relief, arguing that the evidence obtained after

the warrantless entry, arrest, and search should have been suppressed and that he is

entitled to a new trial on the grounds of false testimony, newly discovered evidence, and

ineffective assistance of counsel. The postconviction court denied Wech’s petition. This

appeal follows.

                                      DECISION

       Wech argues that the district court erred when it denied his motion to suppress

evidence obtained after the warrantless entry into his home. “When reviewing a district

court’s pretrial order on a motion to suppress evidence, we review the district court’s

factual findings under a clearly erroneous standard and the district court’s legal

1
  The 911 dispatcher testified that A.H. called 911 at 10:04 p.m. Regardless of the
discrepancy, the district court found that the entry, arrest, and search all occurred prior to
the time the warrant became active at 10:17 p.m., and the parties do not dispute this fact.

                                              3
determinations de novo.”      State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008)

(quotation omitted).

       The Fourth Amendment of the United States Constitution and article I, section 10

of the Minnesota Constitution protect against unreasonable searches and seizures. A

warrantless entry into a constitutionally protected area, such as one’s home, is presumed

unreasonable. Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046 (2001);

State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).             Absent a warrant or an

exception to the warrant requirement, officers cannot lawfully enter a person’s home.

Thompson, 578 N.W.2d at 740.         The state bears the burden of establishing that an

exception to the warrant requirement exists. State v. Johnson, 689 N.W.2d 247, 251

(Minn. App. 2004), review denied (Minn. Jan. 20, 2005).            “The exclusionary rule

generally requires the suppression of evidence acquired as a direct or indirect result of an

unlawful search.” State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996).

       Here, it is undisputed that a warrant was not yet in place when the officers entered

the residence. The ISR agent was in the process of issuing an arrest warrant, but the

warrant did not become active in the system until 10:17 p.m., at least 12 minutes after the

officers entered the residence. Wech contends that the state did not meet its burden of

establishing that the emergency-aid exception to the warrant requirement justified the

officers’ warrantless entry. The state argues that it has met the emergency-aid exception,

or, in the alternative, that the evidence discovered need not be suppressed because the

inevitable-discovery and independent-source doctrines apply.




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Emergency-Aid Exception

       Under the emergency-aid exception, a police officer may “enter a home without a

warrant to render emergency assistance to an injured occupant or to protect an occupant

from imminent injury.”     State v. Lemieux, 726 N.W.2d 783, 787-88 (Minn. 2007).

“[P]olice must have reasonable grounds to believe that there is an emergency at hand and

an immediate need for their assistance for the protection of life or property.” Id. at 788.

In determining whether the actions of law enforcement “meet an objective standard of

reasonableness the court should ask whether the facts available to the officer at the

moment of the [entry], would a person of reasonable caution believe that the action taken

was appropriate.” State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992).

       The U.S. Supreme Court and Minnesota courts have found that the emergency-aid

exception justifies a warrantless entry into a home when there is evidence of physical

violence or property damage or when the officers reasonably believe that someone faces

imminent harm. See Brigham City, Utah v. Stuart, 547 U.S. 398, 406, 126 S. Ct. 1943,

1949 (2006) (holding that officers lawfully entered a residence after hearing a

“tumultuous” altercation, “thumping and crashing,” people yelling “stop, stop” and “get

off me,” and after observing one person strike another “in the face, sending the [victim]

to the sink spitting blood”); Lemieux, 726 N.W.2d at 789 (holding that officers lawfully

entered a residence while investigating a homicide, after being told that someone was in

the residence that night and observing that a screen window had been torn, the window

was open, and the door was unlatched); State v. Terrell, 283 N.W.2d 529, 532 (Minn.

1979) (holding that officers lawfully entered after responding to a call of a possible


                                            5
homicide because they “felt that it was possible that the victim, if there was a victim,

might still be alive” inside the residence); State v. Anderson, 388 N.W.2d 784, 787

(Minn. App. 1986) (holding that a warrantless entry was lawful when officers responded

to a 911 call that the appellant “had been drinking” and he “was throwing people

around,” and upon arrival, the officers observed that the residence was in disarray

“consistent with the officers’ information that a fight had occurred”), review denied

(Minn. Aug. 20, 1986).

       Here, the officers responded to a 911 call from A.H., who stated that her

“disturbed” boyfriend was at their residence.      A.H. did not indicate that Wech had

assaulted her or that she was afraid for her safety. Upon arrival, the officers heard a loud

argument, but they did not hear sounds consistent with violent or threatening behavior.

They did not hear sounds indicating that property damage or physical violence had or was

occurring, and they did not hear calls for help. Nor did the officers observe damaged

property or signs of a struggle.

       In addition, the officers did not announce their presence or wait for someone to

come to the door before entering. In warrantless-entry cases, the residents’ failure to

respond to officers’ knocking and announcing their presence often provide reasonable

grounds to conclude that an emergency is at hand. See, e.g., Lemieux, 726 N.W.2d at 785

(noting that officers knocked and announced their presence and entered after receiving no

response); State v. Halla-Poe, 468 N.W.2d 570, 573 (Minn. App. 1991) (noting that

officers yelled, “Police! Are you okay?” and entered only after hearing no response);

Anderson, 388 N.W.2d at 785, 787 (relying on the facts that the officers knocked,


                                             6
announced, waited several minutes for a response, and entered only after receiving no

response and after observing that the residence was in disarray).

        We conclude that the officers here did not have enough information to reasonably

believe that entry was necessary to “render emergency assistance to an injured occupant

or to protect an occupant from imminent injury.” Lemieux, 726 N.W.2d at 787-88. We

appreciate that the role of police officers “includes preventing violence and restoring

order, not simply rendering first aid to casualties,” Stuart, 547 U.S. at 406, 126 S. Ct. at

1949, but we conclude that the specific facts of this case do not establish reasonable

grounds for an officer to have believed that A.H. faced imminent harm. Therefore, the

emergency-aid exception to the warrant requirement is not met under the facts of this

case.

Inevitable-Discovery or Independent-Source Doctrines

        Unlawfully obtained evidence need not be suppressed if the state meets its burden

of proving that either the inevitable-discovery or independent-source doctrines apply.

See State v. Barajas, 817 N.W.2d 204, 219-20 (Minn. App. 2012), review denied (Minn.

Oct. 16, 2012). Because the state argues that the inevitable-discovery or independent-

source doctrines justified admission of the evidence, we next consider whether the

unlawfully obtained evidence falls under the “exceptions to the exclusionary rule when

the police inevitably would have obtained the evidence absent any misconduct or could

have obtained the evidence based on information independent of their illegal conduct.”

Id. at 219. “If the state can establish by a preponderance of the evidence that the fruits of

a challenged search ultimately or inevitably would have been discovered by lawful


                                             7
means, then the seized evidence is admissible even if the search violated the warrant

requirement.”   State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003).          Similarly, the

independent-source doctrine “allows the introduction of evidence obtained pursuant to a

warrant that is genuinely independent of a prior unlawful search and would have been

obtained even if what actually happened had not occurred.” Lieberg, 553 N.W.2d at 55

(quotation omitted).

       In this case, as previously stated, the arrest warrant became active at 10:17 p.m.,

12 minutes after Wech’s arrest. At 10:17 p.m., the officers could have executed the

warrant, entered the residence, made a valid arrest, and lawfully discovered the pills in a

search incident to Wech’s warranted arrest. But without an exception to the warrant

requirement, the officers were required to wait until they had a valid warrant. In those 12

minutes, Wech could have left the residence, emptied his pockets, flushed the pills, or

taken the pills. Therefore, we cannot conclude that the pills would have “ultimately or

inevitably” been discovered by lawful means or that the pills could have been obtained

independent of the illegal and warrantless entry into the residence.

       At oral argument, the state argued that because the ISR agent had the authority to

arrest Wech without a warrant and because the ISR agent had decided to issue an arrest

warrant at 10:00 p.m., the police officers had authority to enter the residence, seize, and

search Wech at 10:05 p.m. But this argument was not briefed, and the state could not

direct us to any caselaw that would support this argument. We, therefore, decline to

address the state’s new argument. See State v. Tracy, 667 N.W.2d 141, 145 (Minn. App.




                                             8
2003) (declining to address an argument raised for the first time by the state at oral

argument).

      Because the warrantless entry into his home was unconstitutional and the evidence

recovered as a result of that entry should have been suppressed, we reverse Wech’s

conviction. Our resolution of this issue makes it unnecessary to reach Wech’s other

arguments.

      Reversed.




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