(appellant) state of minnesota, respondent, vs. wintersun...
TRANSCRIPT
A05-554
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Respondent,
vs.
Wintersun Lemieux,
Appellant.
MICHAEL A. HATCH Attorney General State of Minnesota 525 Park Street Suite 500 St. Paul, MN 55103
ALAN L. MITCHELL St. Louis County Attorney St. Louis County Courthouse 100 North Fifth Avenue West Duluth, MN 55802
ATTORNEYS FOR RESPONDENT
OFFICE OF THE MINNESOTA STATE PUBLIC DEFENDER
DA VI E. AXELSON Assistant State Public Defender License No. 0302867
2221 University Ave. SE Suite 425 Minneapolis, MN 55414 Telephone: (612) 627-6980
ATTORNEY FOR APPELLANT
\
TABLE OF CONTENTS
PROCEDURAL HISTORY .................................................................................... 1
LEGAL ISSUE ........................................................................................................ 2
STATEMENT OF THE CASE ............................................................................... 3
STATEMENT OF THE FACTS .............................................................................. 4
ARGUMENT .......................................................................................................... l4
BECAUSE THE OFFICERS' SEARCH OF LEMIEUX'S RESIDENCE WAS NOT JUSTIFIED UNDER THE EMERGENCY EXCEPTION TO THE FOURTH AMENDMENT'S REQUIREMENT FOR A SEARCH WARRANT, THE EVIDENCE DISCOVERED DURING THIS SEAR .. CH AND ITS FRUITS SHOULD HA VB BEE}J SUPPRESSED ............................................................................................. 14
A. The district court's finding that a blanket was not covering the window at was clearly erroneous ................. 14
B. The search of Lemieux's residence was not justified under the emergency exception when the police knew that the resident had not been home in "at least a couple of months" and the link between Mr. T 's death and Lemieux's residence was "tenuous" at best. ...................................................... 17
C. Fruits of the Search .......................................................................... 22 D. Because the evidence found at strongly
supported the state's theory that Lemieux killed and robbed Mr. T , its introduction was not harmless .......................... 23
CONCLUSION ..................................................................................................... 25
TABLE OF AUTHORITIES
STATE STATUTES
Minn. Stat.§ 609.185 (a)(1) (2002) ......................................................................... 3 Minn. Stat. § 609.185 (a)(3) (2002) ......................................................................... 3 Minn. Stat.§ 609.19, subd. 1(1) (2002) ................................................................... 3
MINNESOTA STATE CASES
State v. Anderson, 388 N.W.2d 784 (Minn. App. 1986), review denied (Aug. 20, 1986) ........... 18
State v. Dillon, 532 N.W.2d 558 (Minn. 1995) ....................................................................... 24
State v. Ferguson, 581 N.W.2d 824 (Minn. 1998) ....................................................................... 23
State v. Fitzgerald, 562 N.W.2d 288 (Minn. 1997) ....................................................................... 19
State v. Halla-Poe, 468 N.W.2d 570 (Minn. App. 1991) ........................................................ 19, 20
State v. Juarez, 572 N.W.2d 286 (Minn. 1997) ....................................................................... 23
State v. Licari, 659 N.W.2d 243 (Minn. 2003) ....................................................................... 19
State v. Nelson, 355 N.W.2d 134 (Minn. 1984) ....................................................................... 23
State v. Othoudt, 482N.W.2d218(Minn.1992) ................................................. 2, 17, 18,19,22
State v. Storvick, 428 N.W.2d 55 (Minn. 1988) ......................................................................... 17
State v. Terrell, 283 N.W.2d 529 (Minn. 1979) ....................................................................... 19
State v. Wiegand, 645 N.W.2d 125 (Minn. 2002) ....................................................................... 15
FEDERAL CASES
Katz v. United States, 389 U.S. 347 (1967) ....................................................................................... 18
Mincey v. Arizona, 437 u.s. 385 (1978) ....................................................................................... 18
Root v. Gauper, 438 F.2d 361 (8th Cir. 1971) .......................................................... 2, 16, 20, 21
11
Wong Sun v. United States, 371 u.s. 471 (1963) ....................................................................................... 22
MISCELLANEOUS
2 W. Lafave, Search and Seizure, A Treatise on the Fourth Amendment, § 6.6(a) (West 1978) ......................................................................................... 18
The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 332-333 (1999) ..................................... 18
U.S. Const. amend. IV ............................................................................................ 18
111
A05-554
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Respondent,
vs.
Wintersun Lemieux,
Appellant.
PROCEDURAL HISTORY
1. July 9, 2003:
2. July 11, 2003:
3. August 22,2003:
4. June 9, 10, 14, 2004:
Date of offense.
Complaint filed charging Lemieux with one count of second-degree murder.
Complaint filed charging Lemieux with two counts of first degree murder and one count of second-degree murder
Omnibus hearings before the Honorable Terry C. Hallenbeck.
5. November 8-22, 2004: Jury trial before Judge Hallenbeck.
6. December 17, 2004:
7. March 17, 2005:
8. August 17, 2005:
9. August 23, 2005:
Sentencing before Judge Hallenbeck.
Notice of Appeal filed.
Motion filed by Lemieux's counsel requesting a two week extension to file Appellant's Brief.
This Court granted the motion.
1
LEGAL ISSUE
Did the officers perform an illegal, warrantless search of Lemieux's residence where they gained access by calling it a "health and welfare" check, when the check was for a person who had not been home in months?
The district court denied Lemieux's motion to suppress.
Apposite Authority
State v. Othoudt, 482 N.W.2d 218 (Minn. 1992)
Root v. Gauper, 438 F.2d 361 (8th Cir. 1971)
2
STATEMENT OF THE CASE
On July 11, 2003, a complaint was filed charging appellant, Wintersun
Lemieux, with second-degree murder, in violation of Minn. Stat. § 609.19, subd.
1(1) (2002). On August 22, 2003, a St. Louis County Grand Jury indicted
Lemieux on one count of first-degree murder, in violation of Minn. Stat. § 609.185
( a)(l) (premeditated) (2002), one count of first-degree murder, in violation of
§ 609.185 (a)(3) (aggravated robbery) (2002), and one count of second-degree
murder, in violationofMinn. Stat. § 609.19, subd. 1(1) (2002).
On June 9, 10, 14, 2004, Onmibus hearings were held before the Honorable
Terry C. Hallenbeck. On September 14, 2004, Judge Hallenbeck filed an Order
denying Lemieux's suppression motion.
A jury trial was held between November 8 and 22, 2004 before Judge
Hallenbeck. The jury found appellant guilty of the charged offenses.
On December 17, 2004, Judge Hallenbeck committed Lemieux to the
Commissioner of Corrections for a life term.
3
STATEMENT OF THE FACTS
Omnibus Hearing
At 6:15 a.m., M T called 911 and reported that her husband
was dead outside of her home at in Duluth, MN. (O. 17, 76-78,
199, 203). The call came from the Harbor View Homes, a federal housing project
with a high crime rate. (O. 17-18). The homes are similar to condominiums and
they do not share a common hallway. (O. 80). Officer Robert Shene was one of
the first officers to arrive at the scene. (O. 491). Between 6:30 and 6:45a.m.,
Shene noticed Lemieux drive past in a USA Taxi cab. (O. 491).
Detective Lieutenant Robert Brasel arrived at the scene near 7:00 a.m. and
observed I T . (O. 17-18). T was dead, naked, and he had
suffered significant trauma to his head. (O. 18). Brasel ordered officers to
canvass the neighborhood for clues. (O. 43). Officer Jamie Carlson was assigned
to the homes closest to the scene. (O. 230). Carlson approached homes, checked
for a name on the mailbox, and knocked on the door. (O. 239-40). At
condominium 5, Carlson spoke with Dawn Christianson, who indicated that she
had heard loud voices outside of her home at 4:00a.m. (O. 242).
At condominium 15, Carlson noticed the name Rainey on the mailbox but
no one answered the door when he knocked. (O. 246). Carlson, who stated that
he was on a heightened alert, did not hear music coming from inside, and did not
notice that the window screen was tom. (O. 230-31, 247-48). When he knocked
on the door in an attempt to wake up the resident, the door did not open. (Jd.).
4
Brasel scheduled a major crime briefing at 10:30 a.m. at headquarters. (O.
20). Approximately 45 officers were present for the meeting. (O. 20). Lemieux's
name was mentioned as a suspect because Officer Shene had observed him drive
by in a cab shortly after the police arrived. (O. 21 ). It was also mentioned
because of Lemieux's past run-ins with the police. (O. 114). But according to
Brasel, there was no primary suspect. (O. 23).
Another person of interest that was mentioned at the meeting was Tanya
Rainey. (O. 23). Rainey lived at , about one-half block from
the murder scene, and transient people often stayed at her apartment. (O. 24; A.
5). 1 It was also a location for criminal behavior. (O. 38). At 11:30 a.m., almost
six hours after T 's death was reported, Brasel ordered Sergeant Haataja
to Rainey's apartment to make contact with her. (O. 25, 54, 82, 84). This was the
only specific address where officers were sent. (O. 44). Brasel told Haataja that it
was a "welfare check for the resident who lived there, Tanya Rainey." (O. 82).2
Brasel also ordered Officer Charlie Erickson to this location because he was the
liason to Harbor View Homes. (O. 123). Despite telling Haataja it was an attempt
to locate Rainey, Brasel had already been told that Rainey was out of town during
1 Carlson testified that people who live in Harbor View are transient. (O. 251). "A." refers to the appendix to appellant's brief which contains the district court's Order regarding the motion to suppress. 2 Haataja admitted that the report he wrote the day after the murder indicated he went to Rainey's residence to gain information about the ongoing investigation. (O. 125). He also acknowledged that his report did not mention that they went to Rainey's residence to check on her welfare. (O. 125).
5
the summer and that it was her habit to be gone for significant periods of time. (O.
32, 35, 120, 258). Before Haataja left, Brasel told him to call him before entering
the residence. (O. 26).
During the staff meeting, Officer Shana Harris was attempting to track
down Rainey on her own. (O. 338). Harris had dealt with Rainey in the past and
she believed that Rainey could provide some information about what happened.
(O. 338). Harris called Rainey at her last known phone number, but it was
disconnected. (O. 345). Later that morning, Harris ran into the Harbor View
housing specialist, Susan Jordan. (0. 347). Harris asked Jordan if there were any
problem apartments in Harbor View and Jordan said Rainey's apartment. (O.
350). But Jordan also told Harris that Rainey had not been staying at her
apartment regularly. (O. 351). Harris left Jordan's office and headed to Rainey's
apartment to do a "knock and talk." (O. 357).
Before arriving at the residence, Haataja was told by Erickson that Rainey
rented the apartment but "that he had not seen her for several weeks, and she is
known to associate with people that get in trouble and sometimes she's used by
these people as far as her residence." (O. 82). Erickson also thought Rainey
might be at her sister's home. (O. 259). One reason Erickson wanted to go to
Rainey's home was because he thought Lemieux had a connection with Rainey.
(O. 265).
Haataja pulled up to at the same time that Officer Harris
was arriving. (O. 84, 431). Haataja told Harris that they were attempting to locate
6
Rainey because she may have information relating to T 's death. (0.
124). When they approached the door, Harris noticed that there were 8 to 9
newspapers sitting outside the door. (0. 384). They also noticed the window
screen was torn. (0. 85). When Harris looked inside the window, she saw that the
house looked ransacked. (0. 388). However, this information was not in Harris'
report. (0. 409). Harris began yelling out Rainey's name. (0. 85). Haataja
noticed that "the door was closed, but [it] had contact with the doorjamb," and it
was not latched. (0. 85). Harris did not observe that the door was slightly open.
(0. 366). Haataja heard music playing inside, and the CD was skipping. (0. 88).
While Haataja was pounding on the door, the next door neighbor, James Buckner,
came outside and spoke with Harris. (0. 137-38, 367). Buckner told Harris that
Rainey had not been to her apartment in a couple of months and that her mail was
building up. (0. 370-71, 378). Despite this information, Harris determined that a
welfare check was still necessary because they "didn't know" if Rainey might be
inside. (0. 371).
While Haataja was pounding on the door, it swung open a few inches.
(0. 87, 142). Once the door was open, Haataja noticed that the living room was in
disarray. (0. 87). Haataja contacted Brasel and informed him that the door to the
apartment was "slightly" ajar, the screen was cut and no one was answering the
door. (0. 27, 40, 89). Brasel, who "didn't need to know specifics" about what
Haataja saw at the scene, (0. 54), told Haataja to enter the house for a "health and
welfare check" to determine if someone inside the house was injured. (0. 28).
7
Brasel assumed that because numerous people stay at the apartment, if someone
was hurt inside, it would go unreported. (O. 29, 32).
Haataja enlisted Harris and Officers Erickson and Lukovsky to assist him
with a sweep of the home. (O. 90, 94). They entered at 12:03 p.m. with guns
drawn. (O. 94-95). Haataja and Erickson went upstairs first and did not find
anyone. (O. 96). Harris and Lukovsky were in the basement when Haataja
returned to the main floor. (O. 97, 391). While walking towards the basement,
Haataja was alerted to a pile of electronic equipment that was sitting on the
kitchen table. (O. 98). On top of the electronic equipment Haataja noticed a bank
card, so he stopped and "looked at it" to see if Rainey's name was on it. (O. 154,
156). The bank card had T 's name on it. (O. 98). When Harris had
walked past this same area, she had not gotten close enough to the card to read the
name on it. (O. 394). After making this discovery, Haataja ordered the officers
out of the building. (O. 101).
Haataja called Brasel after leaving Rainey's home and informed him that he
found T 's bank card inside. (O. 30, 101). After this discovery, Haataja
was no longer concerned with finding Rainey. (O. 171). Harris spoke again with
Buckner and was informed that Lemieux had been staying at Rainey's apartment.
(O. 399). He then contacted Lemieux's probation officer to confirm where he was
staying. (O. 169).
Based on the discovery of T 's bank card, Officer Scott Campbell
submitted an application for a search warrant for . (O. 192).
8
The search warrant application did not mention that the police had entered
Rainey's home for a welfare check. (O. 208).
While the search warrant was being executed, Harris pointed out different
points of interest in the home to Officer Daniel Saletel. (O. 485-86). This
included some blood on an exterior wall and on the floor in the living room. (O.
486).
Trial
At approximately 4:00 a.m. on July 9, 2003, Dawn Christenson, who lives
at , heard three men arguing outside of her home. (T. 776-77).
She looked outside to see who it was, but a tree blocked her view. (T. 777). At
approximately 4:50 a.m., Theresa Peterson, who lived near Christenson, noticed a
young man, who fit the description of Calvin Moose, in her front yard. (T. 786-88,
799-800). He was not wearing a shirt. (T. 788).
At 6:15a.m., M T called 911 and said, "My husband's
outside, * * *I need an ambulance, [h]e doesn't got any clothes on, he's got blood
all over his face." (T. 44). Mrs. T had just looked outside to see if Mr.
T had returned home from his paper route when she noticed him lying
motionless. (T. 69-70). Officer Robert Shene was the first officer to arrive at
in the Harbor View Homes, and he confirmed that Mr. T
was dead. (T. 54, 110). Mr. T died from blunt force trauma to his head
and neck region. (T. 504). This included a blow to his left cheek region that
shattered his lower jaw and cheekbone and was consistent with a baseball bat, and
9
internal injuries to the upper airway. (T. 493, 515). He also had injuries to the
back of his head, which included at least one consistent with him falling
backwards on a hard surface. (T. 493). Mr. T died within 15 minutes of
the attack and he suffered no defensive wounds. (T. 502, 505).
Officer Daniel Salatel, who was in charge of inventorying evidence from
the scene, observed a pair of pants that were likely Mr. T 's, with one of
the pockets turned inside out. (T. 203). There were also newspapers on the
sidewalk, a canvas newspaper bag, Mr. T 's Columbia jacket, a pair of
shoes, a water bottle, pieces of a hockey stick, and miscellaneous papers scattered
everywhere. (T. 88-89, 211, 213, 216, 218, 220,222, 158). On one of the
newspapers, Lemieux's bloody fingerprint was found. (T. 589-91). The water
bottle contained Lemieux's fingerprints, but it also matched Moose's DNA and
another person who was never identified. (T. 582, 586, 686, 716). Some of the
miscellaneous papers had bloody shoe prints on them. (T. 232, 234-36). These
shoe prints were similar to the shoes linked to Lemieux, but it was not possible to
make a conclusive match. (T. 620-21, 630). The miscellaneous papers likely
came from Mr. T 's pockets, because he was knowu to carry large
amounts of paper receipts in his pockets. (T. 57, 84). Mr. T did not
carry a wallet. (T. 382).
During the early morning hours of July 9, 2003, while it was still dark,
Lemieux arrived at Tracy Wentland's home at (T. 742, 743).
Lemieux was alone, breathing heavily and holding a baseball bat. (T. 744-45). He
10
had blood on his clothing and hands. (T. 745). Lemieux entered her home and
washed his hands in the kitchen sink. (T. 747). He asked Wentland for some
clothes and she offered him her ex-boyfriend's clothes in the basement. (T. 747-
48). Lemieux put the clothes he was wearing in a garbage bag and changed into a
Yankees jersey and some pants. (T. 749). Wentland had Lemieux put the bag in
the garage because they had blood all over them. (T. 749). Lemieux told
Wentland "the whole story," including that a man was dead and that the guy "got
smart with me." (T. 750, 757, 769, 773). Lemieux also said that he took the
man's clothes and threw them in the garbage. (T. 758). Wentland called a cab for
Lemieux and gave him some change. (T. 758-59).
At 6:35 a.m., Theodore Bowler, a taxi driver, picked up Lemieux at
. (T. 128). Lemieux gave Bowler some change and asked him to
drive past Harbor View. (T. 130). Around 6:40a.m., Shene observed Lemieux
drive past the scene of Mr. T 's death. (T. 117). Bowler dropped
Lemieux off shortly after this because Lemieux had used up the change he had
given him. (T. 132).
After a 10:30 a.m. major crime briefing at headquarters, Haataja was
assigued to locate Tawyna Rainey at (T. 152-53). As Haataja
approached the condominium, he noticed that the window on the front of the home
had a tom screen and it appeared open. (T. 153). After they entered the home,
they found the living room in disarray. (T. 155). In the kitchen, Haataja noticed a
11
large pile of electronic equipment on the kitchen table. (T. 155). On top of the
pile was a bank card with Mr. T 's name on it. (T. 156).
When was searched, a blood smear was found
underneath the exterior window and the handrail to the basement. (T. 256-57).
There were also miscellaneous papers, a library card, and a check stub with Mr.
T 's name on them. (T. 255, 261, 264). A coin purse with an
appointment card for "Margie" was also found in the house. (T. 260). There was
a credit union envelope that contained $180. (T. 275). Mr. T had
withdrawn $180 for a trip to the grocery store. (T. 60). The outside of the
envelope contained fingerprints matching those of Lemieux and of Mr.
T . (T. 588-89). A coffee mug was held for further testing and it
revealed a fingerprint matching that of Lemieux. (T. 305, 592).
Later that afternoon, Officer Leigh Wright was sent to
to locate Lemieux. (T. 358). After no one answered the door, Wright and two
other officers noticed Lemieux drive past in a USA taxi. (T. 359-60). As they
were deciding what to do, Lemieux approached the officers. (T. 361). Wright
asked Lemieux his name and he initially said "Jesse." (T. 363). After they placed
handcuffs on him, Lemieux said, "You know who I am, you have got me." (T.
363). Wright noticed scrapes and scratches on Lemieux's right hand. (T. 364,
380). Lemieux was wearing black jeans and a jersey. (T. 372).
Lemieux was interviewed by Lieutenant John Beyer on July 9, 2003 at 2:23
p.m. (T. 429). Lemieux provided the following information. He has been living
12
in Duluth for the last few months and he has been staying at Rainey's home. (T.
433-34). When he woke up at 5 p.m. on July 8, 2003, he started drinking. (T.
435). Later that night, he was awakened by a 19 year-old-white male, who had
stolen a VCR and TV. (T. 441-44). Around 5:00a.m., Lemieux went to sell the
VCR to a crack head for $20. (T. 445). Calvin Moose, Lemieux's cousin, was
sleeping on the couch when he left. (T. 447). Lemieux denied hurting an older
male but admitted that he "hurt somebody pretty bad, I think he's in the hospital."
(T. 456-57). Lemieux claimed that the man was in his mid-20's and "he was
talking shit" to him. (T. 459).
The day after the interview, Beyer informed Lemieux that they were going
to be seeking a first-degree murder charge against him, Lemieux responded,
"That's not right. It wasn't premeditated." (T. 463).
A search was completed at Wentland's home later that day. (T. 531).
Officer Ronald Leino discovered blood in the kitchen during the search. (T. 534).
In the garage, Leino found a bag that contained a pair of white socks, Limits brand
shorts, an undershirt, a towel and black tennis shoes. (T. 535). The items were
very wet. (T. 550-51). Leino also discovered an aluminum bat in the basement
with a sock over it. (T. 553, 555). The baseball bat had DNA evidence from both
Mr. T and Lemieux. (T. 696-97). The items found in the bag also had
DNA evidence that matched Lemieux's profile. (T. 691-93).
13
ARGUMENT
BECAUSE THE OFFICERS' SEARCH OF LEMIEUX'S RESIDENCE WAS NOT JUSTIFIED UNDER THE EMERGENCY EXCEPTION TO THE FOURTH AMENDMENT'S REQUIREMENT FOR A SEARCH WARRANT, THE EVIDENCE DISCOVERED DURING THIS SEARCH AND ITS FRUITS SHOULD HAVE BEEN SUPPRESSED.
Prior to trial, Lemieux made a motion to suppress the evidence discovered
during a warrantless search of and all evidence derived from
that search, which included evidence seized pursuant to search warrants executed
on July 9, 2003 and August 11, 2003. The district court denied Lemieux's motion.
The district court agreed that Brasel's rationale for a search of the home was
insufficient. (A. 7) ("It is the case that observing an open door in an area known
for thefts and vandalism and receiving no answer from inside cannot justify entry
for purposes of a welfare check when the owner of the home is known to be
away."). 3 And though it found "very persuasive" arguments by the defendant that
the police entered to look for evidence, (A. 32), it upheld the
search based on the emergency exception. (A. 36).
A. The district court's finding that a blanket was not covering the window at was clearly erroneous.
To justify its legal conclusion that the officers entered
based on the emergency exception, the district court relied on the following
finding:
3 "A." refers to the appendix to Lemieux's brief which contains the district court's order denying Lemieux's motion to suppress.
14
The Court notes that the state of the window is different in two of the photographs (I and 2) introduced as Omnibus exhibits. In 2 there is what appears to be a blanket over the inside of the window that would serve to block a view inside from outside. Exhibit I, taken later that day and on the same occasion as 2, reveals the same blanket folded and draped over a couch or chair within the apartment. The Court has concluded the blanket was not over the window when Harris approached and that she was not required to move or manipulate it in order to be enabled to see inside the apartment.
(A. 22-23). This finding by the district court is clearly erroneous because it is not
supported by the evidence introduced at the Omnibus hearing. See generally State
v. Wiegand, 645 N.W.2d I25, I29 (Minn. 2002) ("When reviewing the legality of
a search or seizure, an appellate court will not reverse the strict court's factual
findings unless clearly erroneous or contrary to law.").
The only testimony from Harris that mentioned the window was the
following:
Sergeant Haataja went up to the door and I had noticed right away the screen cut and the window pushed up and so I looked in and I couldn't see anyone and I was just yelling "Tanya." And I could see by looking in the window that it looked, you know, that it looked like it basically had been ransacked.
(O. 388). Harris was never asked if she had to move the blanket to look inside,
and her testimony neither supports nor excludes the possibility that she moved the
blanket to look inside.
When this testimony is viewed in context of the photographs, however, the
only legitimate inference from the record is that the blanket was hanging in the
15
window. In one of the photographs the blanket is covering the window and in the
other the blanket was draped over a chair. The picture showing the blanket
covering the window is likely the most accurate portrayal of the scene when Harris
looked inside. There is no legitimate reason why the police would cover a
window with a blanket. In fact, putting the blanket on the window could
contaminate evidence found near that window. (O. 486).
At the very least, with an issue as important as this one, the district court
should have reopened the onmibus record to question Harris about the status of the
window. If she moved the blanket to look inside, the inside of the apartment was
not in plain view and thus she did not have a right to observe it. See Root v.
Gauper, 438 F.2d 361, 363 (8th Cir. 1971) ("The 'plain view' doctrine* * *
comes into operation only if the officers have a right to be in the position where
they obtain the view of the object."). The district court also found that Haataja's
viewing of the ransacked home was constitutionally impermissible because his
"act of pounding on the door was intended to allow him to see into # 15. As such,
this act amounts to an entry into the home that was not supported by a warrant or
probable cause and exigent circumstances." (A. 35). Without the benefit of
Harris' observation, the justification to enter the home was severely undercut
because neither officer would have legitimately viewed the interior of the home.
The district court did not have the right to guess about what potentially happened
when the record and common sense did not support that guess.
16
B. The search of Lemieux's residence was not justified under the emergency exception when the police knew that the resident had not been home in "at least a couple of months" and the link between Mr. T 's death and Lemieux's residence was "tenuous" at best.
The district court ruled that Brasel's decision to permit a welfare check into
Rainey's home "was too tenuous in its connection between the premises and
decedent's death and lacked sufficient indicia to suggest a welfare check was
required to, on the basis of his information, justify a 'welfare' exception entry into
Rainey's home by the officers." (A. 7). But it justified the entry into Rainey's
home based on the information that Harris possessed. (A. 36) ("Lieutenant Brasel
did not himself have enough information to justify his order to enter # 15 to
conduct one. However, because Officer Harris had sufficient information to
justify a welfare check, all of the officers were justified in entering #15).
Where the facts are not significantly in dispute, the appellate court may
independently review the facts and determine whether the evidence should be
suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). The district
court's conclusions of law are considered de novo by the appellate court. State v.
Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).
The Fourth Amendment to the United States Constitution prohibits the
Government from making unreasonable searches and seizures, stating that:
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
17
describing the place to be searched and the persons or things to be seized.
U.S. Const. amend. IV. Searches and seizures which are conducted absent
warrants are per se unreasonable-subject to a few specifically established and
well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967).
Here, the state's only justification for entry into Lemieux's residence was to
the emergency exception. "The police may enter a dwelling without a warrant if
they reasonably believe that a person within is in need of emergency aid."
Othoudt, 482 N.W.2d at 223. This doctrine may be used to justify a warrantless
entry where the officer's immediate action is needed to protect or preserve life or
to avoid serious injury. Mincey v. Arizona, 437 U.S. 385, 392 (1978).
The emergency aid doctrine differs from the exigent circumstances doctrine
in that the exigent circumstances doctrine applies when the police are acting in a
"crime-fighting" or investigatory role. The emergency aid doctrine, on the other
hand, applies where the police must act immediately but are not involved in
investigating a suspected crime. The Community Caretaker Doctrine: Yet Another
Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 332-333 (1999). "The
exception applies to police entries made to assist a person within the premises
reported to be injured or made in response to what appears to be a fight within."
State v. Anderson, 388 N.W.2d 784,787 (Minn. App. 1986) (citing 2 W. Lafave;
Search and Seizure, A Treatise on the Fourth Amendment, § 6.6(a) at 471 (West
1978)), review denied (Aug. 20, 1986).
18
In applying the emergency exception the reviewing court should follow two principles: first, that the burden of proof is on the state to show that the circumstances meet the emergency exception, and second, that an objective standard should be applied to determine the reasonableness of the officer's belief that there was an emergency.
Othoudt, 482 N.W.2d at 223 (citation omitted). "To determine whether the
officer's actions meet an objective standard of reasonableness the court should ask
whether with the facts available to the officer at the moment of the seizure or
search, would a person of reasonable caution believe that the action taken was
appropriate." Id. (citations omitted). Because probable cause is not required,
other jurisdictions look at the officer's subjective motivation to guarantee that the
welfare check is not a pretext for the officers to arrest or seize evidence. See State
v. Licari, 659 N.W.2d 243, 257-58 (Minn. 2003) (Gilbert, J., dissenting). This
court should do the same because the police admitted that they went to Rainey's
house as part of their investigation. (O. 83, 125, 338).
Minnesota courts have allowed warrantless entries under the emergency aid
doctrine in several cases, including State v. Halla-Poe, 468 N.W.2d 570, 573
(Minn. App. 1991) (where a severely intoxicated person was in need of immediate
aid) and State v. Terrell, 283 N.W.2d 529, 531 (Minn. 1979) (to search for the
victim of a shooting who might still be alive). But the courts have declined to
apply the exception, in other cases including State v. Fitzgerald, 562 N.W.2d 288
(Minn. 1997) (where an unidentified informant waited a day to inform police that
the resident may need help) and Othoudt, 482 N.W.2d at 365 (where law
19
(
enforcement officers were specifically told that help was not needed because
medical aid had already been provided).
Here, the state is unable to sustain its burden of establishing that the
officers' entry into Lemieux's residence was objectionably reasonable under the
emergency exception. See Halla-Poe, 468 N.W.2d at 573 ("[P]olice do not have
the authority, simply by using the term, 'welfare check', to vitiate the protections
of the Fourth Amendment."). The district court relied heavily on Harris' belief
that Rainey could be in danger, (A. 36), but it failed to acknowledge that it was
highly unlikely that Rainey was home. (A. 35-36). Thus, there was no immediacy
to justify entry, no objective belief that someone was inside, and no reasonable
belief that someone had been hurt. See Root, 438 F.2d at 365 ("There is no
testimony anywhere in the record, either from the hearing on the motion to
suppress the evidence or from the trial itself, that the officers in fact believed or
had reasonable cause to believe that an emergency existed at the time of entry.").
The entry into the home took place six hours after the death of Mr.
T . This extensive amount of time undercuts any claim of an emergency.
See id. ("Such action is not consistent with that of a man who believes that
wounded persons might be lying inside the house awaiting attention."). More
importantly, the officers were told by Rainey's next door neighbor, shortly before
entering that Rainey had not been there in "at least a couple of months." (O. 379).
This was coupled with numerous reports that Rainey had not been around during
the summer. Harris' knowledge that Rainey occasionally popped in failed to
20
undercut the overwhelming evidence that she was not around. In addition to the
information that the neighbor provided, the numerous newspapers in front of the
door and the mail in the mailbox negated any argument that Rainey was around or
had been for quite some time. There was no reason to believe that someone was
inside the apartment and even less support that this "someone" might be injured.
See id. ("There is no other bit of evidence in the record that would even slightly
suggest that the officers had any reason for believing that there were any other
persons in need of aid.").
Even if Harris did not commit an unconstitutional search by moving the
blanket to look into Rainey's home,4 the fact that Rainey's house was messy was
not enough to allow the police to call the situation an emergency. A messy
apartment is not particularly unusual, especially not in this case, in light of the
ongoing traffic in and out of her house. Moreover, Harris' observation still fails to
account for her knowledge that Rainey had not been there in months.
The courts will invite disregard for the warrant requirement if the
emergency aid doctrine is applied in the manner it was here. Such a decision
would allow the police to easily bypass the systems established to protect the
rights of individuals to be free from unreasonable invasions of privacy and to gain
entrance to a home on virtually any occasion. Here, the police originally went to
4 It was argued above that the district court's finding that the window was uncovered was clearly erroneous. Even if the finding is upheld on appeal, the search was still not justified.
21
Rainey's house to investigate the death of Mr. T but, because no one
answered the door, their investigation was thwarted. Rather than attempting to
obtain a search warrant, Haataja pounded on the door to try to gain entry. When
the first plan (attempting to gain entry through the resident's permission) failed to
work, they moved on to plan number two, which was to enter the home under the
guise of a health and welfare check. This scheme is not and should not be
constitutionally permissible. Othoudt, 482 N.W.2d at 224 ("[L]aw enforcement
personnel and prosecutors are cautioned that this court will not look kindly upon
warrantless entries of family residences, justified on the flimsiest and most
pretextual of excuses. The constitutional right to be free from unjustified, official
invasions of one's home is basic, and this court will not tolerate its violation.").
Because the discovery of Mr. T s bank card was not supported by
the emergency exception, the evidence should have been suppressed.
C. Fruits of the Search
The subsequent search warrants for were both based
on the unconstitutional discovery of Mr. T 's bank card. See (O. 193,
480). Thus, the evidence obtained during these searches is subject to the
exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 485 (1963) ("The
exclusionary rule has traditionally barred from trial physical, tangible materials
obtained either during or as a direct result of an unlawful invasion.").
22
D. Because the evidence found at strongly supported the state's theory that Lemieux killed and robbed Mr. T , its introduction was not harmless.
The erroneous admission of evidence seized in violation of the Fourth
Amendment is subject to harmless error analysis. State v. Nelson, 355 N.W.2d
134, 137 (Minn. 1984). When applying the harmless error test, the reviewing
court looks to the basis on which the jury rested its verdict and determines what
effect the error had on the actual verdict. If the verdict was surely unattributable
to the error, the error is harmless beyond a reasonable doubt. State v. Juarez, 572
N.W.2d 286,292 (Minn. 1997). In applying this test, the reviewing court should
consider the manner in which the evidence was presented, whether it was highly
persuasive, whether it was used in closing argument, and whether the defense
effectively countered it. State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).
Lemieux was convicted of first-degree premeditated murder, first-degree
murder while committing aggravated robbery and second-degree intentional
murder. The state used the evidence seized from to link
Lemieux to these charges.
The evidence was crucial for the state's allegation that appellant robbed Mr.
T . Mr. T 's bank card, a coin purse, and a $180 withdrawal
from the credit union were found in Lemieux's residence. (T. 156, 260, 275, 588-
89). Lemieux's fingerprints were on the outside of the credit union envelope. (T.
588-89). Without this evidence, the state's allegation that Lemieux robbed Mr.
T was much weaker.
23
Moreover, the evidence was crucial for the state to link Lemieux to the
murder because it was found in Lemieux's residence. During closing argument,
the state focused on this link. (T. 823).
Finally, the State's case on premeditation was not overwhelming. State v.
Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (Order) (stating that in harmless error
impact analysis it is relevant how strong evidence supporting conviction was). In
fact, Lemieux essentially admitted his role in the murder but denied that it was
premeditated. (T. 463). Moreover, since Lemieux likely did not know Mr.
T . (T. 68, 91 ), and because there was an argument that proceeded Mr.
T 's death, (T. 777), it is unlikely that Lemieux had the time to
premeditate his act. In its closing argument, the state argued that the robbery
evidence supported premeditation. (T. 872). Without this evidence, the state's
evidence of premeditation was weak.
A review of the record shows that the jury's verdict was not unattributable
to the erroneously admitted evidence and that Lemieux must receive a new trial.
24
CONCLUSION
For the foregoing reasons, Lemieux's convictions must be reversed and a
new trial ordered.
Date: September 9, 2005 Respectfully submitted,
OFFICE OF THE MINNESOTA STATE PUBLIC DEFENDER
Davi E. Axelson Assistant State Public Defender License No. 0302867
2221 University A venue S.E. Suite 425 Minneapolis, MN 55414 Telephone: (612) 627-6980
ATTORNEY FOR APPELLANT
25
The appendix to this brief is not available for online viewing as specified in the Minnesota Rules of Public Access to the Records of the Judicial Branch, Rule 8, Subd. 2(e)(2) (with amendments effective July 1, 2007).