STATE of Minnesota, Respondent, v. Wayne Thomas CARTER, petitioner, Appellant.
No. CX-95-1368.
Supreme Court of Minnesota.
Sept. 11, 1997.
569 N.W.2d 169
Hubert H. Humphrey III, Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney by Phillip D. Prokopowicz, Assistant Dakota County Attorney, Hastings, for Respondent.
OPINION
TOMLJANOVICH, Justice.
By looking through the gaps in the closed blinds covering a window, a police officer observed the appellant, Wayne Thomas Carter, as he engaged in a drug-packaging operation with two other persons, one of whom was the leaseholder of the apartment. The district court held that Carter, who was an out-of-state visitor, did not present any evidence to establish his standing to contest the legality of the observation. The court also concluded that the officer did not conduct a search because he made the observations from an area where Carter did not have a reasonable expectation of privacy. The court of appeals affirmed the district court, but based its holding only on the finding that Carter did not have standing to bring a motion to suppress any evidence obtained from the officer‘s observations. We reverse, and hold that the evidence was sufficient to establish that Carter had standing to challenge the legality of the observation. We further hold that the officer‘s observation rose to the level of a search, and that the officer‘s lack of probable cause and a warrant rendered the search unreasonable under the Fourth Amendment of the United States Constitution, and Article I, Section 10 of the Minnesota Constitution.
At approximately 8 p.m. on the evening of May 15, 1994, an anonymous informant approached Eagan police officer Jim Thielen. The informant, whom Thielen never had seen
After observing this activity for approximately 15 minutes, Thielen left the apartment complex and went to a nearby fire station where he had another conversation with the informant and another Eagan police officer. At this time the informant told the officers that the people inside the apartment might be in possession of a gun. Thielen then returned to the apartment complex where he located a Cadillac matching the description given by the informant. He then returned to the fire station, telephoned Officer Kevin Kallestad of the South Metro Drug Task Force, and reported what he had seen. Kallestad instructed Thielen to stop and secure the suspect vehicle should anyone attempt to drive it away. Police also began to prepare affidavits as part of a request for warrants to search both the apartment and the Cadillac.
At approximately 10:30 p.m., an Eagan police officer observed two males putting items into the suspect Cadillac. The two males then entered the vehicle and started to drive it out of the parking lot. As per instructions, Eagan police stopped the vehicle at the intersection of Rahn Road and Beau de Rue Drive. The police found Carter in the driver‘s seat and Melvin Johns in the passenger‘s seat. The police ordered both men out of the car. As the police opened the door to let Johns out of the car, they observed a black zippered pouch and a handgun, later determined to be loaded, on the floor of the vehicle. The police then placed Carter and Johns under arrest. The police subsequently towed the Cadillac to the Eagan Police Department, and after receiving the signed search warrant at approximately 1:30 a.m. on May 16, the police searched the vehicle. When the officers opened the black zippered pouch, they discovered a white mixture in plastic baggies, Johns’ identification, pagers, and a scale. Tests later determined that the white mixture was 47.1 grams of cocaine.
Late in the evening of May 15, after the arrests of Carter and Johns, Eagan police returned to apartment 103 and arrested its occupant, Kimberly Thompson.2 At approximately 3 a.m. on May 16, police executed a search warrant on the apartment and located cocaine residue on the kitchen table and plastic baggies consistent with those found in the automobile driven by Carter. Thielen subsequently identified Carter, Johns and Thompson as the individuals he had observed in the apartment packaging the white mixture. He
Carter, Johns and Thompson made motions through joint counsel to suppress their statements and all evidence seized from both the apartment and the Cadillac. They argued, among other things, that Thielen‘s initial observation through the window of Thompson‘s apartment was an unreasonable search under the Fourth Amendment and that all evidence obtained as a result of those observations should be excluded as fruit of the poisonous tree. After a two-day omnibus hearing, the district court denied the motions to suppress of Carter and Johns. The court held that the two defendants did not have standing to challenge Thielen‘s observations through Thompson‘s window because both defendants failed to present evidence that their expectations of privacy in the apartment were based upon “understandings that are recognized and permitted by society.” See Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12 (1978); see also Minnesota v. Olson, 495 U.S. 91 (1990). In particular, the court noted that the only evidence presented by the defense showed that the two defendants were out-of-state residents who had been at the apartment for a period of time on May 15, 1994. The district court also concluded that Thielen‘s observation was not a search within the meaning of the Fourth Amendment because the officer made his observation from an area in which the defendants had no reasonable expectation of privacy.
Following the district court‘s denial of their motions to suppress, Carter and Johns proceeded with separate counsel. The district court tried Carter on stipulated facts and found him guilty of conspiracy to commit a controlled-substance crime in the first degree and aiding and abetting a controlled-substance crime in the first degree.
We therefore begin our analysis by addressing the question of standing, and only if we determine that Carter had standing to bring a motion to suppress evidence recovered as a result of Thielen‘s observation of the apartment, will we address the legality of Thielen‘s actions—whether his observation qualified as a search, and if it did, whether it was reasonable.
I. Standing
Because the facts of this case are not in dispute, we will review de novo the district court‘s denial of Carter‘s motion to suppress. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). Before a criminal defendant can bring a motion to suppress evidence on the basis that it was obtained in violation of the Fourth Amendment, the defendant must show that he or she is a proper party to assert the claim of illegality and to seek the remedy of exclusion. To establish such a showing, a party must demonstrate two
A defendant has a legitimate expectation of privacy when his or her subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable.‘” Id. at 143-44 n. 12 (quoting Katz v. United States, 389 U.S. 347, 361 (1967)(Harlan, J., concurring)). In other words, a criminal defendant must make two showings to establish that he or she based the motion to suppress upon an alleged violation of his or her individual Fourth Amendment right. First, he or she must show a subjective expectation of privacy, and second, he or she must show that this expectation was reasonable in light of “longstanding social customs that serve functions recognized as valuable by society.” Olson, 495 U.S. at 98.5
In the case at bar, it is clear that Carter had a subjective expectation of privacy. He was inside the apartment of an acquaintance with the doors shut and the blinds drawn. The more difficult question is whether Carter‘s expectation was legitimate, that is, whether the expectation was the type that society is prepared to recognize as reasonable. Both the district court and court of appeals concluded that Carter failed to establish that his subjective expectation was legitimate. The district court based its conclusion on the fact that Carter offered no evidence that his status in relation to the apartment was similar to the status of the defendant in Olson, or that his status was such that it provided a legitimate expectation of privacy in the apartment. Likewise, the court of appeals based its conclusion on the fact that Carter‘s claim that he was a social guest was inconsistent with the “only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose * * * ” Carter, 545 N.W.2d at 698. In both cases, the courts focused on the facts of Olson, a case in which there was no dispute that the criminal defendant was an overnight guest of the person who had the possessory interest of the searched residence. By com
Admittedly, such a test is a difficult one to define, let alone apply. But the Supreme Court‘s own words offer guidance. “To hold that an overnight guest has a legitimate expectation of privacy in his host‘s home merely recognizes the everyday expectations that we all share. Staying overnight in another‘s home is a longstanding social custom that serves functions recognized as valuable by society.” Olson, 495 U.S. at 98. In other words, the Court in Olson did not recognize the expectation of privacy as legitimate merely because the criminal defendant was a guest. See 5 LaFave, supra, § 11.3(b), at 137 (stating that the Court‘s decision lends “considerable support to the claim that shorter term guests also have standing“).6 Rather, it recognized the defendant‘s expectation of privacy as legitimate because the criminal defendant‘s status as a guest was the type of longstanding social custom that serves functions recognized as valuable by society. As the Court went on to state: “The point is that hosts will more likely than not respect the privacy interest of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household.” Olson, 495 U.S. at 99. Consequently, if Carter had established that his status is the type that serves functions recognized as valuable by society, his expectation of privacy would have been legitimate.
The stipulated facts show that the apartment‘s leaseholder allowed Carter and Johns into her apartment for the purpose of packaging cocaine in exchange for one-eighth ounce of cocaine; that Thielen observed all three persons inside the apartment as they collaborated to divide and package the cocaine; that Carter and Johns remained inside the apartment for at least 2 1/2 hours, and that Johns was wearing bedroom slippers while inside the apartment.7 Although we recognize that these facts probably fail to establish Carter as a “guest” of the apartment‘s leaseholder, we conclude that they were sufficient to prove that Carter was the type of person who possessed a legitimate expectation of privacy in the apartment. After all, Carter had the leaseholder‘s permission to be inside the apartment.8 He remained inside the apartment for at least 2 1/2 hours, during which time he worked in concert with the leaseholder on a common task.9 Whether these facts establish Carter as a visitor, invitee or business partner does not matter. As the Court has carefully noted, arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like do not control. Jones, 362 U.S. at 266. What does control, however, is the nature of the relationship between the property possessor and the person alleging the privacy interest in the property. If the relationship is the type that society recognizes as valuable, then we will find standing. If it is not, then we will not. Although society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that Carter had standing to bring his motion to suppress the evidence gathered as a result of Thielen‘s observations.
Having determined that Carter had standing to assert a violation of the Fourth Amendment, we now turn to the question of whether Thielen‘s observation constituted a search. A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy. California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz, 389 U.S. at 360 (Harlan, J. concurring)). The state argues Thielen‘s observations did not rise to the level of a search because he was not inside the leaseholder‘s “curtilage” when he made his observation. As support for its argument, the state offers State v. Krech, 403 N.W.2d 634 (Minn.1987) for the proposition that the common grounds of multi-unit apartment complexes are not entitled to Fourth Amendment protection. In Krech, we stated:
“it is a fair generalization that the lands adjoining a multiple-occupancy residence are less likely to receive Fourth Amendment protection than the yard of a single family residence” because “the privacy expectation as to such an area is often diminished because it is not subject to the exclusive control of one tenant and is utilized by tenants generally and the numerous visitors attracted to a multiple occupancy building.”
403 N.W.2d at 637 (quoting 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 414 (2d ed.1987)). The state‘s argument misses the point of Krech, however.
In developing the concept of “curtilage,” the Supreme Court actually extended Fourth Amendment protection to those areas so intimately tied to the home itself that an individual reasonably could have expected persons to treat those areas as part of the home. United States v. Dunn, 480 U.S. 294, 300 (1987). The curtilage cases, therefore, necessarily involve factual scenarios in which police search areas spatially removed from the home itself. See, e.g., Dunn, 480 U.S. at 297 (agents entered area surrounding barns, 50 feet from house); Krech, 403 N.W.2d at 637-38 (police entered yard of duplex where garbage cans were kept). The key question in a curtilage case is not where the police officer was standing when he made his observation, although police officers must establish that they had a legal right to be where they were at the time of the observation, rather it is the area that was observed. Although it is plausible that Thielen‘s presence just outside the apartment window was legitimate,10 the state cannot rely on Thielen‘s position alone to justify his subsequent observation into the apartment. The fact that a police officer was situated outside a residence‘s curtilage does not necessarily eliminate the occupant‘s expectation of privacy within the interior of the dwelling. 1 LaFave, supra, § 2.3(d), at 495-96.
The fundamental question under Katz is whether the looking intruded upon the justified expectation of privacy of the occupant. This, in turn, ordinarily requires consideration of two factors: (1) the location of the officer at the time of the viewing; and (2) the precise manner in which the view was achieved. Id. at 497.
This, of course, does not mean that all instances in which a police officer looks into a house or apartment will be a search under the Fourth Amendment. “What a
People who close their doors and window blinds, however, do not knowingly expose their activities to the public. Consequently, we conclude that Carter, Johns, and Thompson took sufficient precautions to keep their activities private. It was only after Thielen left the sidewalk, walked across the grass, climbed over some bushes, crouched down and placed his face 12 to 18 inches from the window that their activities became observable. As one noted commentator has stated:
[W]hen police surveillance takes place at a position which cannot be called a “public vantage point,” i.e., when the police—though not trespassing on the defendant‘s curtilage—resort to the extraordinary step of positioning themselves where neither neighbors nor the general public would be expected to be, the observation or overhearing of what is occurring within a dwelling constitutes a Fourth Amendment search. This is really what Katz is all about.
1 LaFave, supra, § 2.3(d), at 482. Several courts have agreed that it is a search whenever police take extraordinary measures to enable themselves to view the inside of a
III. Reasonableness of the Search
The Fourth Amendment protects persons from, among other things, unreasonable searches.
Reversed.
STRINGER, Justice, dissenting.
While I agree with the court‘s conclusion that the police officer‘s actions in this case constituted an illegal search under the Fourth Amendment, I believe that Carter failed to show that he had a legitimate expectation of privacy in Thompson‘s apartment and I therefore dissent.
“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 131 n. 1 (1978)(citations omitted). A challenge to a search must establish ab initio a legitimate expectation of privacy in the invaded place—that is, an expectation of privacy that “society is prepared to recognize as ‘reasonable.‘” Id. at 143-44, n. 12 (quoting Katz v. United States, 389 U.S. 347, 361 (1967)(Harlan, J., concurring)).
The United States Supreme Court has acknowledged that the mere fact that a person is legitimately on the premises of another is insufficient to give that person standing to contest a search of the other person‘s premises. Rakas, 439 U.S. at 143. Courts have found a legitimate expectation of privacy to exist where the defendant demonstrated a meaningful connection to the property or the host—for example, where the defendant was related to the host or had been given a key to the premises. See, e.g., United States v. Haydel, 649 F.2d 1152 (1981) (holding that defendant had legitimate expectation of privacy in his parent‘s home to which he had a key and unencumbered access); Rose v. United States, 629 A.2d 526 (D.C.App.1993) (holding that defendant had standing to challenge search of close relative‘s house to which he had a key and was a regular visitor). But standing has been denied where the party alleging an illegal search established no more than that they were a transient visitor to the property of another—where, for example, the defendant was present on the property only to use the telephone or bathroom,1 was merely a party guest,2 or otherwise failed to establish a connection to the property beyond simply being present at the time of the search.3 Further-
more, at least one court has recognized that a defendant present at the time of a narcotics search and a member of a criminal venture does not have a reasonable expectation of privacy sufficient to challenge the unannounced police entry of the apartment of another being used as a drug packaging operation. See United States v. Lockett, 919 F.2d 585 (9th Cir.1990).4
Here, Carter established nothing beyond the fact that he was present in Thompson‘s apartment for a period of 2 1/2 hours. He introduced no evidence that he had any prior relationship with Thompson, that he had ever been to her apartment before the night of his arrest, that he had personal effects in the apartment, that he had a key to the apartment, that he could invite or exclude others, or that he had any connection with the apartment other than his presence at the time of the search. The record is simply void as to any indicia that Carter was anything more than a brief, transient visitor. On these facts, it cannot be said that Carter met his burden of establishing a reasonable expectation of privacy in the apartment. I would therefore hold that Carter did not have standing to challenge the search of the apartment and affirm the decision of the court of appeals.
KEITH, Chief Justice (dissenting).
I join in the dissent of Justice Stringer.
BLATZ, Justice (dissenting).
I join in the dissent of Justice Stringer.
STATE of Minnesota, Respondent, v. Melvin JOHNS, Petitioner, Appellant.
No. C9-95-1765.
Supreme Court of Minnesota.
Sept. 11, 1997.
569 N.W.2d 169
John M. Stuart, Minnesota State Public Defender by Bradford Colbert, Assistant State Public Defender, St. Paul, for Appellant.
Hubert H. Humphrey, III, Minnesota Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney by Phillip D. Prokopowicz, Assistant Dakota County Attorney, Hastings, for Respondent.
Notes
Id. at 448. In this case it cannot be said that Carter in any way consented to Thielen‘s observations.The observation into the defendant‘s open room by the police officer positioned outside the room was not an invasion of defendant‘s privacy, for the defendant himself opened the door voluntarily. He was not compelled to open it and the voluntariness of his doing so was not the less merely because the unknown knocker was a police officer.