State v. Nelson

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C2-99-692

State of Minnesota,
Appellant,

v.

Antonio Bracy,
Respondent.

 Filed October 5, 1999
 Remanded for rehearing
Peterson, Judge

Winona County District Court
File No. K1981280

Charles E. MacLean, Winona County Attorney, Steven L. Schleicher, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for appellant)

John M. Stuart, State Public Defender, Karin L. Sonneman, Assistant Public Defender, Sonneman & Sonneman, P.A., 111 Riverfront, Suite 202, Winona, MN 55987 (for respondent)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.

 U N P U B L I S H E D   O P I N I O N

 PETERSON, Judge

Respondent Antonio Bracy was charged with one count of Controlled Substance Crime in the First Degree (Possession of Cocaine) in violation of Minn. Stat. §§ 152.021, subds. 2(1), 3, 152.01, subd. 3a, 609.05 (1998), one count of Controlled Substance Crime in the First Degree (Possession of Cocaine with Intent to Sell) in violation of Minn. Stat. §§ 152.021, subd. 1(1), 3, 152.01, subds. 3a, 15a, 609.05 (1998), and one count of Tax Stamp Violation (Cocaine) in violation of Minn. Stat. §§ 297D.09, subd. 1a, 297D.04, 297D.01 (1998), based on evidence seized during a search of his residence. The prosecution dismissed the first charge, and Bracy pleaded not guilty to the remaining charges. The omnibus court granted Bracy's motion to suppress the evidence seized during the search. Because the state has not shown clearly and unequivocally that the omnibus court erred by suppressing the evidence, but has raised issues on appeal that were not presented to the omnibus court, we remand for rehearing.

 FACTS

From July through September 1998, the Winona Police Department Narcotics Investigations Unit, the Winona County Sheriff's Department, and the Minnesota Bureau of Criminal Apprehension (BCA) conducted an investigation into suspected crack cocaine trafficking in the Winona area by respondent Antonio Bracy. On September 15, 1998, shortly after making a controlled purchase of crack cocaine from Bracy, Special Agent Susan Linkenmeyer applied for and obtained a "no-knock" search warrant for Bracy's residence.

Members of the Winona Emergency Response Team executed the search warrant. Immediately before the team's entry, Bracy left the residence to walk his dog and was arrested. A second suspect named in the warrant was also arrested immediately before the warrant was executed. The third suspect named in the warrant was thought to be inside the residence.

At the initial omnibus hearing, Special Agent Linkenmeyer testified that she prepared the warrant application and affidavit. Included in the affidavit was information Linkenmeyer obtained from Winona Police Department investigators and the Rochester Gang Strike Force that indicated Bracy was a member of the Gangster Disciples. Also included was information that Bracy had been arrested in connection with a drive-by shooting in Winona within two years of the date of the application. Linkenmeyer stated that based on this evidence, she suspected that there might be firearms in Bracy's residence.

At the continued omnibus hearing, Sergeant Michael Cumiskey testified that before entering Bracy's residence, the Emergency Response Team had an opportunity to evaluate whether it was necessary to continue the execution as a "no-knock" warrant. He explained that this evaluation was ongoing, and although Bracy and another person named in the warrant had been arrested, the warrant was executed as a "no-knock" warrant because of the alleged presence of easily-destroyed water soluble narcotics and because a third person named in the warrant was still inside the residence. At the pre-execution briefing, the officers were not given any information about the criminal history of this third person.

Before the warrant was executed, a police car arrived in front of the residence and an officer announced over a loudspeaker, "police search warrant." The executing team checked the back door, found it unlocked, and entered. As they entered, they shouted, "police search warrant." The first officer over the threshold did not knock before entering. The third suspect was arrested inside the residence. Crack cocaine and other items listed in the search warrant were seized. No weapons were found.

 D E C I S I O N

A reviewing court may reverse a district court's pretrial order only if the state shows clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).

Police seeking a search warrant may obtain from the issuing magistrate specific advance authorization to use an unannounced entry to execute the warrant. State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978).

[T]o obtain such authority the police must make a strong showing that an announced entry will result in the destruction of evidence or in danger to the officers executing the warrant.

Id. The police "must do more than simply make a showing that drugs are involved." Id.

In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997).

[E]ven if police obtain advance judicial authorization for an unannounced entry into a dwelling, the police still should make a threshold reappraisal of the need to execute the warrant in this manner.

Lien, 265, N.W.2d at 839.

The district court determined that although the application and affidavit supported the no-knock provision in the search warrant, the executing officers incorrectly concluded during their threshold reappraisal that an unannounced entry was needed to execute the warrant. We agree. The application and affidavit contained information that Bracy was involved in organized gang activities and had been involved in a drive-by shooting incident. This information provided a sufficient basis for the issuing magistrate to authorize a no-knock entry because it demonstrated a reasonable suspicion that knocking and announcing would be dangerous with Bracy present. But when Bracy was arrested before the warrant was executed, the basis for suspecting danger was removed.

The application and affidavit did not contain specific information demonstrating that the person in the residence when the warrant was executed presented a risk of danger similar to that Bracy presented. And the executing officers did not later obtain information about the remaining occupant that had not been included in the application or affidavit. The information available to the executing officers provided a basis for them to reasonably suspect that there would be water-soluble crack cocaine in the residence and that the remaining occupant would have knowledge of the cocaine. But general knowledge that the drugs in the residence could be easily destroyed is not sufficient to justify a no-knock entry. There must be a particularized basis for believing that the drugs will be destroyed upon entry. See Lien, 265 N.W.2d at 839 (issuing magistrate should grant request for unannounced entry if affidavit contains showing that occupants are prepared to destroy evidence whenever search warrant is executed). The state has not shown clearly and unequivocally that the district court erred by concluding that the executing officers did not have a basis for an unannounced entry when executing the warrant.

The state argues on appeal that because Bracy was not present in the residence when the search warrant was executed, he did not have standing to challenge the no-knock entry. The state also argues on appeal that even if there was no basis for an unannounced entry, the evidence seized during the search is admissible because the police would have inevitably discovered the evidence. However, the state did not present either of these theories to the district court. Generally, issues not presented to and decided by the district court will not be considered for the first time on appeal. See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (party may not raise issue for first time on appeal); State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (appellate court will not decide issues raised for first time on appeal or not addressed by trial court).

The state contends that under State v. Champion, 594 N.W.2d 526 (Minn. App. 1999), its failure to raise the standing issue before the district court does not result in a waiver of the issue, and the issue may be raised for the first time on appeal. But in Champion, although no standing issue was raised during the initial omnibus hearing, the state asserted a lack of standing in a motion for reconsideration, and standing was considered by the district court. Id. at 528. Here, Bracy's standing was not challenged by the state during the omnibus hearing and, unlike Champion, there was no motion for reconsideration. Consequently, no standing issue was ever presented to the district court.

In State v. Armstrong, 291 N.W.2d 918, 918 (Minn. 1980), the state brought a pretrial appeal from a district court order suppressing evidence seized during the search of an automobile. The district court had concluded that because the arrest of the defendant was illegal, the police could not justify the search of the defendant's automobile as a search incident to arrest. Id. at 918-19. On appeal, the state argued that the evidence was admissible because the search of the automobile was justified by the motor vehicle exception to the warrant requirement. Id. However, the state had not presented this argument to the district court. Id. at 919. Rather than conclude that the issue the state had not presented to the district court was waived, the supreme court remanded the motor vehicle exception issue for rehearing, at which the district court would be given an opportunity to rule on the issue. Id.

Accordingly, we remand the state's standing claim and its inevitable discovery claim for rehearing.

 Remanded for rehearing.