George Plew Involvement in unlawful Entry

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-97-264

State of Minnesota,
Respondent,

vs.

Robert William Brady,
Appellant.

Filed October 14, 1997
Reversed
Klaphake, Judge

Anoka County District Court
File No. K3-96-4313

S Y L L A B U S

A search warrant sought and obtained after two separate illegal entries to confirm the presence of growing marijuana plants is not a genuinely independent source, and items seized pursuant to such a warrant must be suppressed.

O P I N I O N

KLAPHAKE , Judge

Appellant Robert William Brady was charged with fifth-degree controlled substance crime after police seized marijuana and other items from his townhouse and another residence. Following an omnibus hearing, the trial court declined to suppress the evidence. Appellant waived his right to a jury trial, submitted the case on stipulated facts, and now appeals from his conviction. We reverse.

FACTS

On August 14, 1995, George Plew, vice-president of a Coon Rapids townhouse association, received a complaint of water leaking from a townhouse at 1529 121st Avenue N.W. Plew and Joseph Grant, another association board member, went to the townhouse. Grant climbed through a window when no one answered the door. Once inside the townhouse, the two men discovered the source of the leak. Plew also discovered 16 growing marijuana plants in the basement and reported to the Coon Rapids Police Department that he had observed a marijuana growing operation.

Officer Pantelis responded to the call. After speaking with Plew, Pantelis entered the townhouse without a warrant and observed what he believed to be growing marijuana plants. He then called Investigator Robert Trusler, a Coon Rapids police officer assigned to the Anoka-Hennepin Drug Task Force.

When Trusler arrived at the townhouse, he spoke with Pantelis and then entered the townhouse to observe the marijuana plants. Trusler later applied for a warrant to search the townhouse, which a magistrate issued.

During execution of the warrant, officers found several marijuana plants, bags containing marijuana, assorted paraphernalia used for growing marijuana, two handguns, several boxes of ammunition, and packaging for two additional handguns that were not found during the search. Officers also found various documents linking the residence to appellant. The documents indicated that appellant had another residence in Bloomington.

After Trusler verified that appellant actually resided at the Bloomington address, he requested a search warrant for that address. During execution of a warrant on August 15, police arrested appellant. Officers also found four marijuana pipes, marijuana rolling papers, and approximately $1,800 in cash during the search.

Appellant was charged with fifth-degree controlled substance crime under Minn. Stat. § 152.025, subd. 1(1) (1994), and being a felon in possession of a pistol under Minn. Stat. § 624.713, subd. 1(j)(3) (1994). At an omnibus hearing, appellant sought to suppress all the evidence against him because it was seized after the unlawful entries into the Coon Rapids residence. The trial court rejected appellant's arguments.

Following a trial based on stipulated facts, appellant was convicted of the fifth-degree controlled substance offense. Appellant seeks review of his conviction, challenging the admissibility and sufficiency of the evidence.

ISSUE

Did the trial court err in concluding that the search warrant was a genuinely independent source of the evidence seized?

ANALYSIS

Appellant argues that the evidence seized in the townhouse search must be suppressed because the officers unlawfully entered the townhouse to “make sure” marijuana was present before they sought the warrant. As we warned in State v. Lozar , 458 N.W.2d 434 (Minn. App. 1990), review denied (Minn. July 31, 1990), a “true confirmatory search” requires suppression of the later-obtained evidence. Id. at 429; see also Murray v. United States , 487 U.S. 533, 540, 108 S. Ct. 2529, 2534-35 (1988) (to determine whether warrant is independent of illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred); 5 Wayne R. LaFave, Search and Seizure § 11.4(f), at 299 (3rd ed. 1996) (warrant tainted if police entered dwelling merely to see if there was anything worth getting warrant for).

According to the Supreme Court in Murray ,

[t]he ultimate question * * * is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agent's decision to seek the warrant was prompted by what they had seen during the initial entry.

Id. at 542, 108 S. Ct. at 2535-36.

As Professor LaFave explains,

what counts is whether the actual illegal search had any effect in producing the warrant. Surely this covers any case in which the search truly was “confirmatory”- i.e. where the police, without regard to whether they mistakenly believed they lacked probable cause or correctly believed they had probable cause, nonetheless wanted a greater assurance that evidence was in the premises before expending all the time and effort inevitably involved in obtaining and executing a search warrant.

5 Wayne R. LaFave, Search and Seizure § 11.4(f), at 299.

Here, both Officers Pantelis and Trusler entered the townhouse without a warrant after Plew stated that the townhouse contained marijuana. [1] This raises serious concerns as to whether the officers believed Plew. Furthermore, Trusler admitted that he entered the townhouse to ensure that there was illegal activity in the townhouse. At the omnibus hearing, Trusler testified as follows:

A. I wanted to confirm, you know, for my own -- to satisfy my own interest or curiosity that it in fact was a marijuana growing operation.

* * * *

Q. You went into the residence to make sure that what was in there was actually some kind of illegal activity; isn't that correct?

A. Correct.

Q. It was after you found that that you determined it was time to get a search warrant, correct?

A. Correct.

(Emphasis added.) In addition, the trial court specifically found that Trusler entered the townhouse to confirm the existence of the marijuana growing operation and sought the warrant only after that confirmation.

Independently applying the Fourth Amendment case law to these facts, we conclude the search was “confirmatory,” and all evidence obtained as a result of the warrant must be suppressed. See Murray , 487 U.S. at 538, 108 S. Ct. at 2534 (discussing search now, warrant later scenario); Lozar , 458 N.W.2d at 439 (confirmatory search requires suppression of later-obtained evidence); 5 Wayne R. LaFave, Search and Seizure § 11.4(f), at 299. Because we are reversing based on the illegal confirmatory search, we need not reach the other claims raised by appellant.

D E C I S I O N

Because the evidence used to convict appellant was unlawfully obtained and should have been suppressed, we reverse.

Reversed.

The Newsletter - November

The memorandum regarding RV3 was sent out this week. Written such that the smell of "la culpa" is eroded from the board and wafted over to me. Carol has stated that maintenance is not being done due to the fact that the owner of 12168 Drake would not follow the rules he was given when he purchased the property. The owner has always followed the rules, always paid dues on time, always paid fines and paid illegal charges. The fact is that the decisions made by the board along with the lack of ability to figure out what is right and wrong, has caused the costs. Clearly, the fact that they have lost both law suits indicates that they have "tienen la culpa". For the uninitiated, that means "they have the culprit responsibility".

As for the weeds, I simply made a mistake and quoted the wrong law. In fact State statute 515B.3 101, item (11) states:

(11) impose charges for late payment of assessments and, after notice and an opportunity to
be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association;

This was copied and pasted from the state statutes. Riverview III NEVER gives an opportunity to be heard. They simply fine and expect payment. You will notice the word "reasonable" when talking about fines. The judge did elude to this at court time.

Carol Ebsen and New Concepts have drummed up another problematic decision. They have moved money from the "legal" fund to the "maintenance" funds. This money was a $250 bill charged by Carol Ebsen (the memo points out that Carol charged appropriately) to Riverview III for her day in court.
They have defied Judge Connolly's instructions. His instructions clearly state 2 items.

1. Carol Ebsen was incorrectly compensated and
2. The board of RV2 should immediately return the funds.

The next action will be a re visit to court to explain to Judge Connolly that RV3 manipulated the movement of funds but that Carol Ebsen was still incorrectly compensated. He will not be pleased at all and in fact the penalties for such manipulation could be other than monetary. This is called contempt of court. Rewards for contempt are outstanding. Even 3 foot weeds can't hide contempt.

She charged $250. This is cash. In order to get $250 from your work place for a days work, you need to be making around $390 per day since you will pay taxes. This equates to around $100,000 per year. I would suggest that she makes nowhere near this amount. So we will have to produce receipts. As judge Connolly said "How do I know how much she makes?"

It has always been claimed that the board made a motion to pay Carol $250 for her time. However, in this memo, Carol points out that she "Charged Accordingly". This is the reason that we have minutes. Her statements are documented and approved by the board.

The memo also noted that the Judge requires the association to "transfer" the $250 paid to Carol. According to the verdict, Judge Connolly is requiring that RV3 RETURN the money.


Have a happy Thanksgiving.

November 13th Meeting

I was a little late getting to the meeting. When I walked in, Gene Sullivan was in the process of elegantly chewing out the board. The flavor of his discussion was that the board are viewed as acting out of emotion, have lack of communication with members. There is a general perception that they lack fairness. He wants the board to start listening and have compromise in mind.
He wants the board to start having dialog with members. He told the board members that they view Mr. Williams as an agitator and that Mr. Williams feels like David trying to fight Goliath. This is the point where George in true form leaned back in his chair and laughed.

Gene Sullivan also said that the board needs to re-think the possibility of signing up a group of landlords, home owners etc and forming an entity. I'm not sure what the objective would be since the board has learned the hard way that they have to follow the rules.
They are not "in charge", they are "in place" to implement our covenants.
Gene Sullivan, waived his charges of $120 per hour for court appearance and eluded that the charges were not discussed. I believe that Terry is the one who told us that $120 per hour is the charge. In fact, previous postings on this blog spot discusses the subject. Of course, Gene charging $120 per hour to lose a law suit does send an interesting message. I think he has done the right thing. He also handed a check to me for my court costs.

He told the board that the Judge agreed with the weeds fine. However, this is incorrect. I have attached the relevant conclusion which indicates that I did not prove that RV3 violated statute 515B 1-112.
RV3 Court 2 Conclusion.jpg
This is because unfortunately, I picked the wrong state statute which has nothing to do with charges without actual cost.

The big win of course is that now the board has to get $250 back into the maintenance fund. It is illegal for board members to be compensated as stated in the rules. I don't know how they will achieve getting the money back in but I will be gaining the information soon.

The news letter has been written. Carol took over the writing. She has started off explaining away her payment of $250.00. Still in her whipping mode, it looks to me like she feels the need to CYA by writing an explanation regarding her second loss in court. She has also decided that delinquencies are going into the newsletter. Not only are they going to foreclosures (Per Paul Bozoni) after 90 days delinquency, but they will intimidate the culprits. I will be looking carefully at this. I think it is wrong and I will be looking at the law. John Rettger asked if we should be calling these people to try to understand their dilemma and the board told John that they would be breaking all kinds of harassment laws (Al Dittbrenner).

I do agree that initiation of foreclosures on aged delinquencies is the only method to fix the problems. We do need more money and we are increasing the association fees AND we have thousands of dollars hanging out there not paid. The association has a duty to paying members to make sure they collect fees rather than simply raising the fees.

We'll keep you posted.