State v. Jordan

OPINION

This is a pretrial appeal from an order granting appellant Robert Joseph Jordan’s motion to suppress evidence obtained from a nighttime search of his home. Jordan and his wife were not present at the time of the search but Jordan’s pregnant daughter, her boyfriend, and a third individual were present and each was in bed. Based on evidence obtained during the search of his home, Jordan was charged with one count of third-degree possession of a controlled substance. The district court concluded that the warrant application lacked sufficient facts to justify a nighttime entry and the circumstances present at the time of entry resulted in a constitutional violation, requiring suppression of all evidence seized during the search. The court of appeals reversed, holding that, because Jordan was not present in the home at the time of the search, the violation was statutory, not constitutional, and suppression was not required. State v. Jordan, 12J6 N.W.2d 534, 541 (Minn.App.2007) rev. granted (Minn. Apr. 17, 2007). We reverse and reinstate the suppression order.

On December 11, 2004, at approximately 4:30 a.m., deputy sheriffs presented an application to a district court judge for a warrant to search Jordan’s residence during the nighttime or daytime hours, and without having to knock and announce their presence. The judge found probable cause for the warrant application and also authorized a nighttime search outside the hours of 7 a.m. and 8 p.m., but did not authorize an unannounced entry. The state concedes that the application for the search warrant did not contain a sufficiently particularized reason to justify a nighttime entry.1

At approximately 6 a.m. the deputies executed the warrant. As the deputies *152approached Jordan’s residence they observed that there were no lights on inside the residence but there were several vehicles in the yard. The deputies knocked on the front door and, hearing nothing from the inside, entered the residence and announced themselves.2 Inside the residence, the deputies observed one male sleeping on a sofa, and a female and male sleeping in a bed in a back bedroom. All three individuals were dressed in nightclothes. The female was Jordan’s 20-year-old pregnant daughter, and the male sleeping with her was her boyfriend. According to the deputies’ reports, Jordan’s daughter and her boyfriend regularly resided in Jordan’s home. The third individual apparently was a social guest, staying only for the night.

The deputies kicked open Jordan’s locked bedroom door and found: $900 in cash; two surveillance cameras; two active police scanners; an active driveway alarm; a polished blue rock with cuts and marks from a razor or knife with white residue, which tested positive for methamphetamine; a digital scale; a spoon with crystal-like residue; two baggies containing a crystal-like substance, one of which tested positive for methamphetamine; empty baggies; a coffee grinder with white powdery residue, which tested positive for Ephedrine; and a box of Suphedrine cold pills.

The district court found that the search warrant had sufficient probable cause, but that the nighttime search authorization was not supported because the application did not provide “sufficiently particularized reason to justify a nighttime entry.” The court suppressed the seized evidence because “the circumstances present when the warrant was executed constituted a violation of a constitutional nature.” The district court said: “the place searched was defendant’s home and even though he was not present, the application of the exclusionary rule should be no different than it would if he had been there given the circumstances present in this case.”

The court of appeals reversed, reasoning that because Jordan was not present when the search took place, policy concerns about individuals “ ‘being roused out of bed and forced to stand by in their night clothes while the police conduct a search,’ ” were not triggered as to Jordan. Jordan, 726 N.W.2d at 539 (quoting State v. Lien, 265 N.W.2d 833, 841 (Minn.1978)). The court of appeals concluded that “the execution of the invalid nighttime search warrant at respondent’s home when he was not present amounted to a statutory violation rather than a violation of respondent’s constitutional rights,” and, as such, the district court erred in suppressing the evidence. Id. at 541. We granted review.

When reviewing pretrial orders on motions to suppress evidence, we review the district court’s factual findings under a clearly erroneous standard and the district court’s legal determinations de novo. State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006). Our review is informed by our decision in State v. Jackson, 742 N.W.2d 163, No. A05-247, 2007 WL 4261169 (Minn. Dec. 6, 2007), issued contemporaneously with this opinion. In Jackson, we held that police entry into the *153defendant’s home on December 11 at 9:25 p.m. to execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant had not yet entered a period of nighttime repose, required that the evidence seized in the search be suppressed, both because the entry subverted the basic purpose of the statute regulating nighttime searches and the entry violated the defendant’s rights to be free from unreasonable searches and seizures under the United States and Minnesota Constitutions. Jackson, 742 N.W.2d at 174-75, 177-78, 179-80. The added feature to consider in Jordan’s case, not present in Jackson, is whether Jordan’s absence from the home during the search reduces the statutory or constitutional protections.

I.

Jordan argues that deputies violated the statute that restricts the service of a search warrant during nighttime hours. That statute provides: Minn.Stat. § 626.14 (2006).3 The state concedes that the statute was violated because the application for the warrant was insufficient to support a nighttime search. But the state argues, and the court of appeals agreed, that a violation of the statute does not require suppression. As we noted in Jackson, the test for whether suppression is required is whether the violation of the statute was a serious one that subverted the purpose of the statute. 742 N.W.2d at 168 (citing State v. Cook, 498 N.W.2d 17, 20 (Minn.1993)).

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.

Applying our decision in Jackson, we note that the deputies entered Jordan’s home during the period defined by statute as being nighttime and the deputies did not know whether Jordan or any other occupants of the home were sleeping, were engaged in particularly personal behavior which they were attempting to keep private, or were in their nightclothes. In fact, three occupants of the home — two residents and one social guest' — were sleeping and were roused out in their nightclothes for the search. And there is evidence that the door by which police gained entry to the home was locked. Clearly, the door to Jordan’s bedroom, which contained the challenged evidence, was locked.

As in Jackson, the deputies entered Jordan’s home without any information about what was going on inside the home. They did not know whether Jordan was present and sleeping, whether Jordan was engaging in personal behavior he intended to keep private, or whether he was in his nightclothes. But, unlike Jackson, it turns *154out that Jordan was not present. This raises the question of whether the statute was intended to protect the interest of a homeowner in the security of his home even when the homeowner is not present. Stated another way, is the purpose of the statute only to protect a homeowner from intrusion on his person or is it broader, to protect a homeowner’s interest in maintaining a secure home, whether he is personally present or not?

We conclude that the purpose of the statute is to protect the broader interest of a homeowner in the security of his home, whether he is present or not. First, the statute does not mention the presence of the homeowner as a condition to the prohibition against an unauthorized nighttime search. If the legislature had intended to protect only the person of the homeowner, it could have said so more specifically. Second, one of the purposes of the statute is to regulate the conduct of police, “to prevent police intrusion into the personal and private activities of individuals in their homes at night unless the police articulate facts sufficient to support their intrusion.” Jackson, 742 N.W.2d 163, 173. That purpose is served by prohibiting an unauthorized nighttime search, whether the homeowner is present or not.

Under Jackson, the critical inquiry is what the officers know at the time of entry. Id. at 173. If, as in State v. Lien, they know that they will not be intruding on a homeowner’s period of repose, the evidence they obtain in an unauthorized nighttime search may be admissible. 265 N.W.2d 833 (Minn.1978). But, if they do not know whether they will be intruding on a homeowner’s period of repose, the evidence should be suppressed. Here, in fact, the deputies actually believed that Jordan would be present. Their warrant application represented that a nighttime search would offer the best chance to find him present. The deputies did not learn of Jordan’s absence until after they entered the home in violation of the statute. If the purpose of the statute is to deter unauthorized nighttime searches, then the after-the-fact knowledge that the homeowner is not present should be irrelevant in determining whether the purpose of the statute was subverted, especially when members of the homeowner’s family and social guests are present.

We interpret the statute to protect an absent homeowner’s interest in safeguarding his family and social guests against unauthorized nighttime police intrusions. Although we need not define the outer boundary of the protected interest, we conclude that it includes a homeowner’s interest in safeguarding against unauthorized intrusion of a home that is occupied by resident members of his family and social guests. Accordingly, we hold that admitting the evidence seized from Jordan’s home would subvert the basic purpose of section 626.14 and that suppression is required.

II.

Even if suppression were not required under the statute alone, Jordan urges us to conclude that, under the present facts, the statutory violation reaches constitutional dimensions. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

*155U.S. Const, amend. IV. The Minnesota Constitution has identical language. Minn. Const, art. I, § 10.

In Jackson, we addressed the question left open in Lien, when does a violation of the statute also become a constitutional violation? Jackson, 742 N.W.2d at 174. We concluded that a “search of a home at night is a factor to be considered in determining whether a search is reasonable under the Fourth Amendment”; that it is appropriate to define the privacy interest in a home by using the concept of a “period of nighttime repose”; and that entry into a home at 9:25 p.m. on December 11, when it had been dark for several hours, was within the period of nighttime repose. Jackson, 742 N.W.2d at 177.

Coincidentally, the police entry of Jordan’s home was also on December 11, a year later than the entry into Jackson’s home. The entry into Jordan’s home occurred at approximately 6 a.m., which was at a time when it had been dark for hours, and would remain so for at least another hour. We conclude that the police entry into Jordan’s home was during the period of nighttime repose, as defined in Jackson.

The state argues that Jordan’s individual privacy rights have not been violated because there was no risk that he would personally be roused out of bed. The state necessarily emphasizes Jordan’s constitutional right to be secure in his “person” against an unreasonable search or seizure. But the constitutional interest to be protected also includes Jordan’s right to be secure in his “house” against an unreasonable search or seizure. U.S. Const, amend. IV. Jordan argues that this right exists whether he was present or not, because of his reasonable expectation that his house will be secure from illegal entry when it is occupied by members of his family and social guests.

We have not previously addressed the scope of the constitutional right of a homeowner to be secure in his house against an unreasonable search or seizure. Whether that right is broader than a homeowner’s right to be secure in his person, and may exist even when his person is not intruded on, depends on whether a homeowner’s reasonable expectation of privacy in his home is greater than the expectation to be secure in his person. In this connection, it seems clear that a homeowner cannot assert vicariously the individual rights of the other occupants of the home to be free from invasion of their persons. Thus, Jordan cannot object to the search on the grounds that the constitutional rights of the occupants to be secure in their persons has been violated. We have said that “the Fourth Amendment’s protection is personal and individual,” and “[a] defendant who cannot demonstrate a legitimate expectation of privacy relating to the area searched or the item seized will not have standing to contest the legality of the search or seizure.” State v. Richards, 552 N.W.2d 197, 204 (Minn.1996). Stated another way, Jordan does not have standing to object to the search on the basis of the invasion of the individual rights of his occupants to be secure in their persons.

But Jordan’s individual right to be secure in his house may include the right to provide a secure place, free from unauthorized intrusion, for his family and guests. Clearly, Jordan has standing to assert such a right because he is the owner of the house and was the target of the search. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (reinforcing the particularized harm requirement for standing). Thus, the inquiry is not one of “standing,” but *156whether the disputed search has infringed on the privacy interest of a homeowner that the Fourth Amendment was designed to protect. See State v. McBride, 666 N.W.2d 351, 360 (Minn.2003); see also Raleas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (stating that the Fourth Amendment rights “are personal” and “more properly placed within the purview of substantive Fourth Amendment law than within that of standing”).

Determining the scope of a person’s protected privacy interest involves a two-step inquiry: (1) what was the defendant’s subjective expectation of privacy in the home; and (2) was that subjective expectation reasonable, i.e., one that is recognized by society. See In re Welfare of B.R.K., 658 N.W.2d 565, 571 (Minn.2003); see also Rakas, 439 U.S. at 143-44 n. 12, 99 S.Ct. 421 (stating that to be legitimate, the expectation of privacy must be one that society is prepared to recognize as “reasonable”). Jordan has the burden of establishing that the challenged search violated his reasonable expectation of privacy. State v. Gail, 713 N.W.2d 851, 859 (Minn.2006).

The court of appeals relied on five cases to support its conclusion that a homeowner does not have a reasonable expectation of privacy in his home during a period of nighttime repose when he is not present. Jordan, 726 N.W.2d at 539-41. But those cases are distinguishable because they only focus on a defendant’s right of privacy in his person and in each the police actually knew that the suspect would not be present when they entered (either because the suspect was in custody or police knew that the suspect was elsewhere). See United States v. Searp, 586 F.2d 1117, 1119 (6th Cir.1978); Gamble v. State, 473 So.2d 1188, 1195 (Ala.Crim.App.1985); State v. Iverson, 187 N.W.2d 1, 33 (N.D. 1971); Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65, 71 (1994); State v. Chandler, 267 S.C. 138, 226 S.E.2d 553, 555 (1976). Those cases are more analogous to Lien because the police knew before the entry that they would not intrude on the defendant’s expectation of privacy in his person during the night. They do not address a homeowner’s privacy interest in safeguarding his family and guests, or his papers and effects, from illegal entry during the period of nighttime repose.

Jordan argues that his absence from the home is not relevant to the constitutional analysis because a homeowner’s expectation of privacy is greater than just the risk of being personally roused out of bed and includes an interest in safeguarding his family, guests, papers, and effects from an illegal entry. Although Jordan cannot cite to any direct authority for that argument, the argument does find indirect support from a review of decisions in partially analogous situations.

First, in cases where the search is illegal because the police have no warrant and no probable cause, we have held that the search violated the defendant’s reasonable expectation of privacy even though the defendant was not present during the search. See, e.g., State v. Carter, 697 N.W.2d 199, 210-11 (Minn.2005) (holding that a tenant has an expectation of privacy in a self-storage unit and suppressing evidence seized in the search without requiring that the defendant be present at the time of the search); State v. Lemieux, 726 N.W.2d 783, 787, 790 (Minn.2007) (holding that the warrantless search was legal because it was justified by the emergency-aid exception, but assuming that the defendant had a reasonable expectation of privacy in “his own abode” despite the fact he was *157not present during the search).4 Similarly, where a seizure pursuant to a warrant is illegal because the item seized does not bear a reasonable relationship to the items described in the warrant, the seized item is properly suppressed even if the defendant was not present during the search. State v. Pietraszewski, 285 Minn. 212, 218, 172 N.W.2d 758, 763 (1969).

To the degree that a nighttime search under a warrant with an invalid nighttime clause can be compared to a warrantless search or the seizure of an item not adequately described in a warrant, these cases support the conclusion that the search of Jordan’s home violated his reasonable expectation of privacy. At the very least, these cases presume that the scope of the defendant’s expectation of privacy is broader than merely the risk of the intrusion on his person.

Second, the Supreme Court has recognized that a homeowner’s rights against unreasonable searches and seizures in his home may be violated even where the homeowner was not present. In Aider-man v. United States, the Supreme Court said that electronic surveillance of a defendant’s home violated the defendant’s Fourth Amendment rights against unreasonable searches and seizures. 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The Court said: “Such [a] violation would occur if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations.” Id. The Court also said:

If the police make an unwarranted search of a house and seize tangible property belonging to third parties ⅜ * * the homeowner may object to its use against him, not because he had any interest in the seized items as “effects” protected by the Fourth Amendment, but because they were the fruits of an unauthorized search of his house.

Id. at 176-77, 89 S.Ct. 961.

Third, Supreme Court decisions recognize that social guests have an expectation of privacy in the home of another. See, e.g., Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing that “[s]taying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable to society”). We have held that even a short-term social guest has a reasonable expectation of privacy in his host’s home, because entering another person’s home for a short-term social visit is a longstanding social custom that serves functions recognized as valuable by society. B.R.K., 658 N.W.2d at 576, 578. Although a homeowner may not vicariously rely on- the guests’ individual rights, the existence of those rights reinforces the expectation of the homeowner that he can *158safeguard his family and guests from illegal intrusion in his home.

Fourth, although the Supreme Court has not specifically determined whether a violation of a nighttime search statute reaches a constitutional dimension,5 it has recognized a particular concern with nighttime searches. See generally Coolidge v. New Hampshire, 403 U.S. 443, 477, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (noting that a seizure of a person during the night is an “extremely serious intrusion”); Monroe v. Pape, 365 U.S. 167, 210, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting) (stating that “[s]earches of the dwelling house were the special object of this universal condemnation of official intrusion” and “[n]ight-time search was the evil in its most obnoxious form”), overruled on other grounds by Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) (“[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.”). The Hawaii Supreme Court has said that “nighttime searches, particularly of individuals’ residences, are generally considered to be anathemas by our society,” recognizing that even when the nighttime search is made pursuant to a judicially issued search warrant, they are considered “particularly abrasive.” State v. Richardson, 80 Hawai’i 1, 904 P.2d 886, 889 (1995) (citing State v. Kalai, 56 Haw. 366, 537 P.2d 8, 13 (1975)).

Combining these indirect authorities, we conclude that, under the Fourth Amendment, Jordan had a reasonable expectation as a homeowner that his person, house, papers, and effects would be secure against an unauthorized nighttime search and seizure, even though he was not present during the search, where the search occurred during a period of nighttime repose and members of his family and a social guest were present in the home. Because we conclude that the search and seizure violated the Fourth Amendment of the ■ United States Constitution, we need not reach Jordan’s argument based on the Minnesota Constitution.

Having concluded that the deputies violated Jordan’s Fourth Amendment rights against unreasonable searches and seizures, we must next determine whether the evidence against him should be suppressed. We answered this question in the affirmative in Jackson and we likewise hold here that the evidence seized during the nighttime search of Jordan’s home must be suppressed. Jackson, 742 N.W.2d at 180.

Reversed.