This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1423
State of Minnesota,
Respondent,
vs.
Derrick Irving Stevenson,
Appellant.
Filed September 29, 2014
Reversed
Smith, Judge
Ramsey County District Court
File No. 62-CR-12-9803
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
SMITH, Judge
We reverse appellant’s conviction of possession of a firearm by an ineligible felon
because, viewing the totality of the circumstances, the initial warrantless entry by police
was not supported by exigent circumstances and was, therefore, unreasonable.
FACTS
On December 10, 2012, in connection with a warrantless search of a home,
respondent State of Minnesota charged appellant Derrick Irving Stevenson with
possession of a firearm by an ineligible felon, in violation of Minn. Stat. § 609.165, subd.
1b(a) (2012). Stevenson moved to suppress all evidence obtained as a result of the
warrantless search.
During a hearing on the motion, Officer Tanya Tamm testified that, on the
afternoon of December 7, 2012, she responded to a St. Paul residence on a complaint of
loud music. She opened a storm door and knocked on the house’s “solid wood door.”
After a “normal knock” on the door received no response, and because the music was so
loud it could be heard from “halfway down the block,” she pounded on the door with her
fist. This second knock caused the door to open approximately two feet, leading her to
speculate that the door had not been properly secured. Officer Tamm testified that when
the door opened, she “immediately was overcome by the smell of unburnt marijuana.”
She also testified that she “immediately identified” herself as a St. Paul police officer.
Officer Tamm testified that she then “opened the door and stepped like right in.” She
testified that she “was in the entryway, but didn’t go all the way in. So half of [her] body
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was outside the door and half of [her] body was inside the door.” She testified that “[a]s
[she] opened the door, [she] could see . . . an unknown black male sitting . . . at a
computer,” and once she had “pushed the door a little bit further open, there was a couch”
with a woman lying on it. She testified that after she opened the door, the black man
“stood up,” “looked around,” and “took off” into a different room. Approximately 30 to
45 seconds later—after Officer Tamm called for backup— a black man “peeked around
the corner” where the first man had fled. Officer Tamm testified that she ordered the
man, subsequently identified as Stevenson, into the living room.
Officer Lynette Cherry testified that she was among the officers to respond to
Officer Tamm’s call. She testified that when she arrived at the residence, there was a
“strong” odor of marijuana and Officer Tamm requested a protective sweep search
because “someone ran from her when she first entered the house.” Officer Cherry
testified that during the protective sweep search, a gun was discovered in the upstairs
bedroom, in plain view. This discovery ultimately led to Stevenson’s arrest.
At the hearing, a defense investigator testified about the mechanics and condition
of the entry into the house, including a “primary screen door” that swings outward, a
“secondary steel door” that swings inward, and an “extremely damaged” doorframe.
After the hearing, the parties filed simultaneous memoranda. In pertinent part,
Stevenson argued that Officer Tamm lacked probable cause and exigent circumstances to
enter the house without a warrant. Specifically, he argued that Officer Tamm entered the
house “[w]hen she opened the first door to” the residence, and this entry was not
supported by probable cause or exigent circumstances because, at that moment, she was
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merely responding to a complaint of loud music. The state approached this issue
differently, addressing the moment when Officer Tamm intentionally opened the second
door, which was ajar from the knock. It asserted that “Officer Tamm was lawfully inside
the premises because she had both probable cause and an exigency: She smelled the
marijuana, and the occupants knew that police were present, creating a risk that evidence
would be destroyed.”
The district court denied Stevenson’s motion, concluding that “Officer Tamm was
justified in walking onto the porch and knocking on the door,” it is not a “constitutional
violation for an officer to open a screen door before knocking on a main door of a house,”
and “Officer Tamm did not damage or force the door open,” it merely “opened” when she
knocked on it.
The matter proceeded to a bench trial, and the district court found Stevenson guilty
as charged.1 The district court denied Stevenson’s motion for a downward dispositional
or durational departure and sentenced him to 60 months’ imprisonment.
DECISION
I.
Abandoning his district court argument that Officer Tamm entered the residence
unconstitutionally by opening the screen door to knock on the main door, Stevenson now
1
During trial, Officer Tamm testified, “As soon as the door popped open, I could
immediately smell unburnt marijuana coming from the house.” She continued, “As I
opened the door—just pushed it open—I was still standing one foot inside the residence,
one foot out. I immediately announced St. Paul Police, and I [saw] a black male sitting at
a computer.” Subsequently, the man “stood up, turned around, looked both ways, and
fled.”
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argues that Officer Tamm “lacked authority to cross the threshold . . . to search the entire
residence.” Generally, we will not consider issues not argued to and decided by the
district court, including constitutional questions of criminal procedure. Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
However, we have discretion to consider issues raised for the first time on appeal “when
the interests of justice require their consideration and addressing them would not work an
unfair surprise on a party.” Sorenson, 441 N.W.2d at 457. Because the state has not
asserted waiver, and because it raised Officer Tamm’s actual entry in the district court,
we exercise this discretion here.
When reviewing pretrial orders on motions to suppress evidence, we review the
district court’s factual findings for clear error, State v. Lemieux, 726 N.W.2d 783, 787
(Minn. 2007), and its decision whether to suppress the evidence de novo, State v. Harris
590 N.W.2d 90, 98 (Minn. 1999).
Both the United States and Minnesota Constitutions prohibit “unreasonable”
searches by the government of “persons, houses, papers, and effects.” U.S. Const.
amend. IV; Minn. Const. art. I, § 10. To establish that the warrantless entry of a person’s
residence was reasonable, the state must demonstrate that the entry was either pursuant to
a valid consent or supported by the existence of probable cause and exigent
circumstances. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996). Because the state does
not allege consent, we address the probable-cause and exigent-circumstances elements in
turn.
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Probable Case
Stevenson alleges that Officer Tamm lacked probable cause to enter the residence,
arguing that she lacked probable cause to believe there was criminal activity because “the
odor of unburned marijuana. . . did not support an argument that marijuana was being
consumed.” Probable cause “requires ‘only a probability or substantial chance of
criminal activity, not an actual showing of such activity.’” State v. Holiday, 749 N.W.2d
833, 843 (Minn. App. 2008) (quoting Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552,
555 (Minn. 1985)). Because the mere possession of marijuana is a crime regardless of
whether it is burned or otherwise consumed, Stevenson’s probable-cause argument is
without merit. See Minn. Stat. §§ 152.01, subd. 9 (defining marijuana as “all parts of the
plant of any species of the genus Cannabis”), .021, subd. 2(4) (defining first-degree
possession crime), .022, subd. 2(4) (defining second-degree possession crime), .023,
subd. 2(5) (defining third-degree possession crime) (2012).
Exigent Circumstances
Stevenson also challenges the existence of exigent circumstances, asserting that
the district court erroneously found that the man at the computer fled before Officer
Tamm entered the residence. The state agrees that the issue turns on whether the district
court’s purported finding that the man at the computer fled before Officer Tamm crossed
the threshold of the residence, but it argues that the finding is not clearly erroneous. Our
examination of the record establishes, however, that the district court did not explicitly
address the timing of the man’s flight. But “because there was absolutely no conflict in
the evidence at the [suppression] hearing in this case, we find no prejudice . . . in the
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[district] court’s failure to provide findings of fact.” State v. Rainey, 303 Minn. 550, 550,
226 N.W.2d 919, 921 (1975). Officer Tamm consistently testified that when the door
popped open, she pushed it in further and stepped partially inside; only after these actions
did the man at the computer flee. And Officer Cherry testified that, when she requested a
protective sweep search, Officer Tamm said that “someone ran from her when she first
entered the house.” We conclude that this record can support only the finding that the
man fled after Officer Tamm had entered the residence and that any other finding would
be clearly erroneous.
We therefore turn to the question of whether exigent circumstances supported
Officer Tamm’s entry. Citing State v. Gray, the state urges that we conduct a single-
factor exigency analysis to determine whether one consideration—the potential that
evidence could be destroyed—justified the officer’s entry into the residence. See 456
N.W.2d 251, 256 (Minn. 1990) (establishing a single-factor test for exigent
circumstances); State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (recognizing
“imminent destruction of evidence” as a factor that may support an exigent-
circumstances finding). Recently, however, the United States Supreme Court analyzed a
range of single-factor exigency cases—including destruction-of-evidence exigencies—
treating each factor as but a portion of an overarching totality-of-the-circumstances
analysis. See Missouri v. McNeely, 133 S. Ct. 1552, 1559 (U.S. 2013). Thus, although a
single factor may support an exigency finding, “it does not do so categorically.” Id. at
1563.
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Exigent circumstances can include “hot pursuit, danger to human life, imminent
destruction of evanescent evidence, and possible flight of a suspect.” Paul, 548 N.W.2d
at 264. The state asserts only destruction of evidence as a possible exigent circumstance
justifying Officer Tamm’s entry into the residence. Because we have previously
concluded that the record can support only the finding that Officer Tamm entered the
residence before the man at the computer fled to potentially destroy evidence, her entry
was not justified by the threat that evidence might be destroyed. Because we can
perceive no other circumstances that might constitute exigency, we conclude that Officer
Tamm’s entry was not supported by exigent circumstances when looking to the totality of
the circumstances.
“If a warrantless entry is made without probable cause and exigent circumstances,
its fruit must be suppressed.” Id. Because, when looking to the totality of the
circumstances, Officer Tamm’s entry was not supported by exigent circumstances, and
“there is certainly no exception to the warrant requirement for the officer who barely
cracks open the front door and sees nothing but the nonintimate rug on the vestibule
floor,” Kyllo v. U.S., 533 U.S. 27, 38, 121 S. Ct. 2038, 2045 (2001), the warrantless
search here was unreasonable and its fruits must be suppressed. Therefore, we reverse
Stevenson’s conviction.2
Reversed.
2
Because we reverse based on the warrantless entry, we do not reach Stevenson’s other
arguments.
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