                        This opinion will be unpublished and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
                                   A14-1512

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Benjamin Perry Richardson,
                                    Appellant.

                                Filed August 3, 2015
                                      Affirmed
                                  Connolly, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-3211


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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.
                        UNPUBLISHED OPINION

CONNOLLY, Judge

      In this appeal from his conviction of second-degree controlled-substance crime,

appellant argues that the district court erred in denying his motion to suppress evidence

seized during execution of a nighttime search warrant. We affirm.

                                        FACTS

      At approximately 10:10 p.m. on January 8, 2013, officers with the Minneapolis

Police Department executed a search warrant at appellant Benjamin Perry Richardson’s

apartment. The warrant authorized a nighttime search. During the search, the officers

discovered marijuana and crack cocaine.        Respondent State of Minnesota charged

appellant with second-degree controlled-substance crime (possession of six grams or

more of cocaine).

      The following facts supported the search warrant application. A confidential

reliable informant (CRI) told police that an individual by the name of Benny Ray was

selling crack cocaine out of his apartment on 36th Avenue South in Minneapolis. The

CRI stated that Benny Ray sold drugs until approximately 11:00 p.m.           An officer

performed a computer check and identified appellant as the individual who lived at the

apartment identified by the CRI. The officer printed appellant’s picture and showed it to

the CRI, who identified appellant as Benny Ray. The officer then arranged for the CRI to

make a controlled buy of crack cocaine from appellant. The CRI contacted appellant

through a third party, and the CRI and third party drove to appellant’s apartment.

Appellant answered the door and he and the third party went inside. A short time later


                                           2
the third party returned to the car and then dropped the CRI off. The CRI produced a

quantity of crack cocaine that the third party purchased from appellant. The officer then

applied for a search warrant. The warrant application requested a nighttime search and

stated one was necessary because “[appellant] sells narcotics during the day and night”

and “officers have made a controlled buy from [appellant] during the evening hours.”

The issuing magistrate granted the nighttime search warrant.

      Following his arrest, appellant moved to suppress the evidence obtained as a result

of the search. Appellant argued that the information in the search warrant application

was insufficient to justify a nighttime search. The district court determined that the

police did not have reasonable suspicion for a nighttime search, but that suppression of

the evidence was unnecessary because the resulting violation was merely a “technical

violation of Minnesota statutes” and did not amount to a constitutional violation.

Appellant moved for a supplemental evidentiary hearing and reconsideration of the

district court’s order denying his motion. The district court held a second evidentiary

hearing and considered the additional issue of whether the police violated the knock-and-

announce rule when executing the search warrant.        The district court again denied

appellant’s motion.

      Appellant waived his right to a jury trial and agreed to proceed with a stipulated-

facts trial to preserve appellate review of the pretrial ruling under Minn. R. Crim. P.

26.01, subd. 4. The district court found appellant guilty of second-degree controlled-

substance crime and sentenced him to 36 months in prison. This appeal follows.




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                                     DECISION

       The district court concluded that the search warrant application did not present

sufficient facts to justify the authorization of a nighttime search under Minn. Stat.

§ 626.14 (2014), but that suppression of the evidence was unnecessary because the

violation was only technical. Minn. Stat. § 626.14 provides:

              A search warrant may be served only between the hours of
              7:00 a.m. and 8:00 p.m. unless the court determines on the
              basis of facts stated in the affidavits that a nighttime search
              outside those hours is necessary to prevent the loss,
              destruction, or removal of the objects of the search or to
              protect the searchers or the public. The search warrant shall
              state that it may be served only between the hours of 7:00
              a.m. and 8:00 p.m. unless a nighttime search outside those
              hours is authorized.

When reviewing pretrial orders on motions to suppress evidence, this court reviews the

district court’s factual findings for clear error and the legal determinations de novo. State

v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007).

1.     The search warrant application

       Respondent argues that the district court erred by concluding that the search

warrant application did not allege sufficient facts to justify a nighttime search under

Minn. Stat. § 626.14 and that the decision to deny the motion to suppress should be

affirmed on that ground. See State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (stating

that a respondent “can raise alternative arguments on appeal in defense of the underlying

decision”). This presents a legal question that we review de novo. State v. Harris, 590

N.W.2d 90, 98 (Minn. 1999). For a nighttime search to be authorized under Minn. Stat.

§ 626.14, the search warrant application must “establish at least a reasonable suspicion

                                             4
that a nighttime search is necessary to preserve evidence or to protect officer or public

safety.” State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). The reasonable-suspicion

standard is “not high” but requires that the officer “be able to point to something that

objectively supports the suspicion at issue.” Id. (quotation omitted). A magistrate may

draw reasonable inferences from the information contained in the search warrant

application. State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004), review denied

(Minn. Apr. 20, 2004).       This court gives great deference to the issuing judge’s

determination that a nighttime search should be authorized. Bourke, 718 N.W.2d at 927-

28.   This includes the principle that “doubtful or marginal cases should be largely

determined by the preference to be accorded warrants.” Id. at 928 (quotations omitted).

       Respondent argues that a reasonable inference from the facts included in the

search warrant application is “that police wanted to seize the narcotics while [a]ppellant

was present in the apartment before he had a chance to sell them.” The presence of

illegal drugs alone is insufficient to justify a blanket exception to the general search-and-

seizure requirements. See State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (noting a

blanket exception to the announcement requirement in felony drug cases was

unconstitutional (citing Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997)).

However, the search warrant application included evidence beyond the suspected

presence of drugs. The application specified that appellant was known to sell drugs until

11:00 p.m. and that officers had recently made a controlled buy during the evening




                                             5
hours.1 Thus, the officers did not just have an unarticulated hunch that appellant sold

drugs at night, they had information to support the suspicion.

       To justify a nighttime search, the warrant application must establish that the police

had a reasonable suspicion that a nighttime search was necessary to “preserve evidence.”

Bourke, 718 N.W.2d at 927. Here, the officers had information to support their suspicion

that appellant sold drugs at night and that waiting to execute the warrant until the daytime

could lead to some of the drugs being sold. Executing the search warrant before the

drugs could be sold would allow the officers to preserve evidence. Given that the

reasonable-suspicion standard is “not high” and we give great deference to the issuing

magistrate’s determination that a nighttime search is justified, we conclude that the

search warrant validly authorized a nighttime search of appellant’s apartment.

2.     The execution of the search warrant

       Further, even if the warrant invalidly authorized a nighttime search, the evidence

would only need to be suppressed if the violation was so serious that it subverted the

basic purpose of Minn. Stat. § 626.14. State v. Jackson, 742 N.W.2d 163, 168-69 (Minn.

2007). The Minnesota Supreme Court has determined that the interest protected by

Minn. Stat. § 626.14 is the “freedom from intrusion during a period of nighttime repose.”


1
  Appellant argues that the controlled buy was unreliable and cannot be used to justify a
nighttime search. This essentially challenges whether the warrant was supported by
probable cause. See State v. Hawkins, 278 N.W.2d 750, 750-51 (Minn. 1979) (discussing
challenges to the reliability of a controlled buy as a probable-cause challenge). Appellant
did not argue that the warrant was unsupported by probable cause to the district court,
and the issue is not before us now. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)
(stating that appellate courts generally will not consider matters not argued to and
considered by the district court).

                                             6
Id. at 171 (emphasis omitted). The assessment of whether a particular search violated an

individual’s freedom from intrusion during his period of nighttime repose and subverted

the basic principle of Minn. Stat. § 626.14 focuses on what officers knew before entering

the home. Id. at 173. If the officers had “no basis to believe that [appellant] had not yet

entered the period of nighttime repose” then the evidence must be suppressed. Id. But if

the officers had reason to believe that appellant had not yet entered his period of

nighttime repose then the violation would be merely technical and not require

suppression. State v. Lien, 265 N.W.2d 833, 836, 841 (Minn. 1978).

       The district court found that the officers knew the following before entering the

apartment. Shortly after 10:00 p.m., the officers approached appellant’s doorway. They

had information from a confidential reliable informant that appellant sold drugs out of the

apartment until 11:00 p.m. When the officers arrived they could hear multiple voices

talking at an average volume and characterized the voices as having a “normal

conversation.” An officer testified that the voices sounded like they were close to the

door, most likely in the room immediately after the door. The other individual in the

apartment later stated that she and appellant were sitting at the kitchen table just “talking

and laughing,” which corroborates the officers’ assessment of the situation. The officers

also knew the apartment was “pretty small,” but that the occupants were speaking at a

normal volume and did not appear to be making an effort to be quiet.

       Appellant argues that the evidence must be suppressed because the officers had

“no meaningful information about whether appellant had entered his period of nighttime

repose.” We disagree. Unlike the officers in Jackson, who had no information about


                                             7
what was going on inside the home, the officers here knew that there were multiple

people inside the apartment having a “normal conversation” at an average volume. The

officers also knew the apartment was “pretty small” and the appellant was known to sell

drugs until 11:00 p.m., which is later than the time at which the officers executed the

search warrant. This information gave the officers reason to believe that appellant, the

occupant of the apartment, had not yet entered his period of nighttime repose. See

Jackson, 742 N.W.2d at 171 (noting that police run less of a risk of violating the

occupants’ freedom from intrusion during the period of nighttime repose when it is

apparent people are awake and active inside the home).

       We conclude that even if the warrant did not validly authorize a nighttime search,

the officers had reason to believe that appellant had not yet entered his period of

nighttime repose. Therefore, any resulting violation would be merely technical and not

constitutional in nature, and suppression would not be required. The district court did not

err by denying appellant’s motion to suppress.

       Affirmed.




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