State v. Licari

BY THE COURT: Anderson Paul H.

/s/ Justice

Association Minnesota, Respondent,

STATE of Petitioner, LICARI,

Craig Robert

Appellant.

No. C2-01-290. Minnesota.

Supreme Court of 17, 2003.

April appeals

court of affirmed on other grounds, holding manager that the did not have actual to consent investigating search but that officer reasonably upon apparent relied au- thority manager to consent to the Licari, search. See State No. C2-01- (Minn.App. WL *4-5 2002). Jan.2, part, affirm in reverse in We part and remand to district court for proceedings. further A. Missing Report Persons 24, 1999, Saturday, April On Janet Hen- County nes called the Isanti sheriffs office Stuart, Defender, John M. State Public sister, Licari, to that report Nancy her was Cromet, Defender, Michael F. Asst. Public missing. Deputy Sheriff Jim Johnson re- Licari, attorneys Craig appel- Robert sponded to Hennes’s call and also talked to lant. mother, Nancy’s Kathleen Smith. Smith Hatch, Gen., Atty. Mike Thomas R. Ra- Nancy told that Johnson had not returned Gen., Edblad, gatz, Atty. Jeffrey Asst. R. from a meeting appellant; dinner with her County Atty., Isanti attorneys for State of husband, estranged evening; the previous Minnesota. Nancy that had driven Smith’s Ford Tem- po meeting; to the that and Smith had expected Nancy just to return in a few hours.

OPINION day, Nancy’s family The next reported they that had found a letter written HANSON, Justice. appellant that hinted strongly that he was Appellant Robert Craig (appel- Licari suicidal. Isanti County Investigator Kory lant) charged with one count of sec- Erickson, Apprehen- Bureau of Criminal ond-degree intentional murder connec- (BCA) sion Special Agent Jon Hermann wife, tion with the death Nancy of his swept vicinity other officers of the Licari. Police discovered much of the evi- cafe at appellant Nancy report- which upon dence which was convicted edly April they had met on but did not during warrantless search of a storage find appellant, Nancy or their automobiles. unit rented appellant. Appellant chal- Monday, April On Erickson and Her- lenged constitutionality of the search mann obtained information about Nancy’s storage unit. The district court cards, credit try which used to suppress, finding denied his motion to locate her. then put Erickson out a the manager storage unit actual had Minnesota Crime Alert notification to local authority to consent to the search. After a bars, motels, evidence, requesting restaurants and stipulated court trial on the dis- appellant guilty anyone trict court found who had missing and sen- seen the tenced him to 330 in prison. persons months or their cars call 911. outside, standing Ammend While still sister Nancy’s relatives unit opened garage-style door to the appel- Erickson that Investigator also told and looked inside. On the floor of the storage Nancy renting were lant and unit,' object Ammend saw blue Storage (Big Mini Clos- Big Closet unit recognized that he as either a blanket or a et), Nancy’s family told of Isanti. south sleeping bag. object Next to blue was a Nancy payments made the Erickson that unit, pillow with a “reddish-brown on belongings substance kept personal substance, unit, Upon seeing it.” Ammend key usually held -into unit what stepped see family key did not have the unit. The time; pillow. vantage point under the From a they told Erickson the unit at that unit, steps” “two or three inside the he saw recently given key had top “what to be the of a head appeared Erickson enlisted Isanti Coun- appellant. lot [a] which had hair and of reddish- Ammend to check ty Investigator Michael him brown substance on the head.” Ammend telling that the out the concluded reddish-brown sub- permission Erickson family given stance was blood. storage unit. look inside the immediately Ammend testified that he Storage B. Unit Search point the unit “at that it [because] exited appeared to be a crime scene.” He told Tuesday, April On the afternoon Eaves to leave and then secured the unit Karen Eaves and Ammend met with Next, tape. crime scene Ammend Big with manager learned that she was the Special and Investigator notified Erickson Eaves told Ammend Closet. he Agent unit at Hermann of what had found. storage had rented a appellant and scene, Closet, Upon arriving at Hermann key that Eaves had a Big to- into unit to confirm that thé per- stepped “the appellant and that was sole in fact dead. Aside person was According the lease.” inside son on Ammend’s by Hermann and from these intrusions something stated testimony, “[Eaves] Ammend, unit until no one' entered the they on the contract have about it’s where ob- investigator Erickson and another storage into the shed whenev- right go a want, The affidavit I tained a search warrant. they guess, is er —whenever summarized the supporting exact warrant way don’t remember her —I words, point, including investigation it.” Eaves gist but that was the storage in the unit. discovery body . of a storage unit. then led Ammend hoped that he Ammend later testified offi- County Isanti and state BCA When something in the unit “to indi- find storage unit with the cers later entered the might and [Nancy appellant] cate where warrant, body was they determined the feel gone;” or have he did not been se- Nancy Licari. She had been that of rath- investigating a crime but that he They the face. also verely beaten about “cursory performing er was on Nancy’s with blood found baseball bat However, family.” the Minnesota print tennis in the victim’s it and a shoe Alert notification had warned Crime blood. with “[s]uspect [appellant] wrote note & death!!!” [s]uicide Arrest C. The n 28, investigators Wednesday, April gate the outer sur- On Eaves unlocked learning that Minneapolis traveled to after rounding facility and then removed the using Nancy’s credit unit. had been appellant’s the door to someone lock from buy jewelry gators cigars cards to and videocassette re- had found the same at the unit. Target corders at two stores Minne- apolis. They security personnel met with D. Investigation Additional requested at the documentation stores arrest, After Target person- investigators of those transactions. The reviewed computer Big records from the Closet se- nel told that man had caused a curity system appellant which showed that problem Target trying because he was storage facility had entered and exited the buy jewelry with a card that had Nan- con- April investigators 23. The also cy’s investigators name on it. The left firmed that the blood on clothes photo appellant behind a and asked blood, Nancy’s appellant’s finger- matched Target staff to assist the in locating bat, prints matched those found on the him. appellant wearing one of the shoes Agent Hermann testified that he then print matched the shoe found in the stor- nearby pawnshop acquired visited a age unit. showing records arrest, Some time after the the Isanti pawned a videocassette recorder there. investigators acquired surveillance video- Investigators learned that a also car tape and sales the Target records from matching the description of Kathleen stores the pawnshop, which showed Tempo parked Ford had been Smith’s seen appellant buying videocassette recorders Minneapolis. on street south pawning at the stores and them at the Finally, manager from one of the pawnshop. Target stores had visited contacted 3,May investigators copy On obtained a investigators to announce that store agreement of the rental Big for the Closet security apprehended had and were de- unit. agreement provided, perti- The taining appellant. The apprehension and part: nent by off-duty detention was executed an Relocation. right Lessor reserves the to Minneapolis police officer who had seen Lessee, expense relocate without to Les- appellant (including information on see, any compartment to of comparable left photograph) investiga- behind size. acknowledged tors. The officer that he Access to Premises. Lessor and its grounds had no other to appellant arrest employees agents shall have the appellant committing any because was not right premises to enter the all reason- Target; crime in he testified that he purpose inspection, able times for the of “probable

made the arrest based on the cleaning, repairing, altering improv- pick-up” request cause left the BCA. ing premises building; or the howev- The officer appellant searched and found er, thereby Lessor shall not unreason- carrying keys he was to the Big Clos- ably interfere with Lessee’s use of said storage et as well Nancy’s credit premises. cards. The hat and clothing appellant wearing were stained with blood. E. History Procedural investigators

When Appellant searched the Ford charged with second-de- wallet, Tempo, they discovered a purse, gree intentional sup- murder. He filed jacket belonging driver’s license and a pression to and dismissal challenging motions They Nancy. partial also found a package constitutionality of the search of the Sweets;” of “Swisher crime scene storage investi- unit. The district court denied for re- motions, granted appellant’s petition We reasoning that be- appellant’s of the court gave Big appeals. Clos- view of the decision of agreement rental cause the enter the right manager Eaves et “inspection,” of purposes unit for

storage I. authority to consent had the actual she challenges appellant’s The state the unit. Ammend’s search of Investigator allege that his constitutional capacity Further, Ammend’s held that the court violated, grounds on the rights were door of blood through open observation expectation priva he had no reasonable exception fit the view pillow plain cy storage in the umt. order to contest After appellant requirement. the warrant of his a defendant must property, a search stipulated trial on to a court consented “legitimate expectation pri establish him evidence, found the district court the area searched or the vacy relating to Appel- murder. second-degree guilty of Richards, 552 seized.” State v. item[s] sufficiency challenge lant does (Minn.1996). Legitimate N.W.2d the evidence. are those expectations privacy expecta the state appeals, the court of Before permitted recognized tions as reason arguments five alternative advanced Illinois, by society. able See Rakas of the court’s denial support of district 128, 143 n. U.S. (1) had no suppress: appellant motion to (1978). L.Ed.2d 387 in the expectation privacy reasonable argues that four facts elimi- state (2) unit; facility man storage storage expectation of nate reasonable authority to consent to a had actual ager first, in the unit: privacy (3) unit; storage facility of the not have exclusive use the unit did authority to con apparent manager used estranged frequently his wife (4) unit; were there sent to a search second, it; agreement gave Big the rental justifying the offi exigent circumstances enter for what the state right Closet the (5) unit; cer’s entrance into third, purposes;” terms “broad discovery exception to the war inevitable property, rather than unit was commercial Licari, applied. requirement rant fourth, property; appellant residential appeals at The court of WL 4574 *3-7.1 in the body his wife’s “uncovered” left except rejected arguments all of the state’s umt, storage anyone where middle of the authority. The apparent that based on to the unit would opened who the door “Ammend acted on held that because court immediately argument, see it. At oral unambigu manager’s affirmative fac- any one of these state conceded fact that she was autho ous statement of tors, alone, would not suffice to standing agreement the rental to enter rized under expectation reasonable defeat will,” mistake unit Ammend’s factual at unit. But the storage in the privacy authority was rea regarding Eaves’ actual that, these argues together, added state per entry Ms warrantless sonable and expectation. destroy any facts such rule Illinois v. Rod under the missible ar 2793, accept the state’s 177, 186, We cannot 110 S.Ct. riguez, 497 U.S. (1990). Licari, sharing with an property While gument. 2002 111 L.Ed.2d 148 See an to the risk person exposes owner other 4574 at *5. WL seeking investigation, information on of Me argue that the consent state did not The family missing person, justified Licari's a warrantless search. search obtained from nature was effective or that the administrative 250 Authority A. may the other tenant consent to a Actual search, see v. Mat United States The district court concluded lock, 988, 164,171 7, n. U.S. S.Ct. authority that Eaves had actual to consent (1974), sharing L.Ed.2d 242 such does not storage to the search of the unit. The expectation the owner’s lessen reasonable state us explicitly argue does before privacy persons, including as to third authority, that Eaves had actual but nei Moreover, Hodg landlord. State v. it ther does concede this issue. The issue es, 413, (Minn.1979), 287 N.W.2d we apparent also has relevance issue of held a renter of a unit had a authority apparent authority ex

reasonable expectation privacy. As not only authority ists if the claimed below, language ed the lease here is no would, true, party third if be sufficient than it was in that case. We hold broader satisfy authority. the legal test for actual expecta had a reasonable Rodriguez, See Illinois v. at 188- 497 U.S. tion of in the unit and that privacy 89, 2793; United States v. Whit has the capacity challenge he the consti 1071, (D.C.Cir. field, 939 F.2d 1073-74 tutionality of the search of the unit based 1991). precise question The is whether facility upon manager. consent of the authority solely actual can be based II. addition, rights of requires, access legali When this court reviews the rights some of use. search, ty of it will not reverse the Supreme The United States Court has findings district court’s are unless authority held that a third party has actual “clearly contrary erroneous or to law.” to consent to a search if “possess[es] she Munson,

State 594 N.W.2d authority common over or other sufficient (Minn.1999). relationship to premises or effects The Minnesota and United Matlock, sought to be inspected.” protect against States Constitutions both U.S. 94 S.Ct. 988. The Matlock unreasonable searches and seizures authority” Court described “common Const, IV; state authorities. U.S. amend. follows: Const, I, § Minn. art. 10. Warrantless is, course, authority Common not to searches are presumptively unreasonable implied be in- property from the mere specifically unless one of “a few estab party terest a third property. has ap lished and well-delineated exceptions” justifies which States, the third- plies. Katz v. United 389 U.S. (1967). party upon consent does not rest L.Ed.2d 576 the law The state bears the establishing property, burden of with its attendant historical applicability exception. refinements, of an State v. legal but rests rather Ture, 621, (Minn.2001). 632 N.W.2d 627 on mutual property by per- use of the generally having joint sons access or

The district court held that the search of control most purposes, so that it is the storage unit was lawful because of for recognize any reasonable to manager authority Eaves’ actual to con- right permit co-inhabitants has the to presents sent. The state three additional in inspection right his own and that exceptions requirement: to the warrant consent, the others have assumed the risk that apparent authority plain to view discovery. might one of their number permit inevitable We will address each of these in turn. common area to be searched.

251 any 7, (emphasis right premises “the enter the at 988 to 171 n. 94 at Id. omitted). added) (citations to premises, In State v. reasonable time to view the Matlock, said, repairs, to show to other applying we in make or them Buschkopf, use’ is essen- 287 at 414. finding prospective ‘mutual tenants.” N.W.2d “a agreement consent.” 373 appellant’s explic- effective While rental ingredient tial 756, (Minn.1985), abrogated on itly provided right landlord with the N.W.2d California, 496 by Horton v. grounds other it difficult “inspection,” access would be 2301, 110 L.Ed.2d 112 interpret U.S. to than to that term be broader (1990). In Hodges. “view the as in premises,” case, landlord’s of access is right either is not

Generally, a landlord seen or “special purpose” restricted to a limited authority actual to consent to having (i.e., view), right or to and such inspect premises warrantless search not, itself, by access N,W.2d of does constitute by Hodges, a tenant. occupied “use.” landlord, though This is because a at 415. access, might rights typical reserve she put emphasis circuits Some federal less Thus, have of use.

ly rights does test applying on mutual use in the Matlock authority even lacks actual when landlord suggest joint sufficient.2 access is “‘by express agreement or has she These draw from the holdings support right enter for reserved implication authority to statement in Matlock that ” purpose.’ and limited Id. special some over authority consent rests on “common LaFave, Wayne Search and R. (quoting relationship or other to” sufficient 8.5(a) (1978)). fact, In § at Seizure at area or articles searched. 415 U.S. Richards, we the absolute made state added). But these (emphasis 94 S.Ct. 988 “But, may not grant landlord ment: law cases conflict with Minnesota case police [permission search] unless holding that mutual use is essential property.” tenant has abandoned required with federal circuits at 203-04 n. 2. N.W.2d satisfy general than joint more access example, For rights by Big the Matlock standard. The access reserved Clos- Whitfield, the D.C. Circuit determined agreement are under rental et son's “joint that a to her than reserved mother’s access” those no broader Matlock satisfy room insufficient Hodges. Hodges, court landlord had no evidence that she not have where there was that the landlord did actual held “mutual the room. 939 F.2d use” of authority to consent to 1074-75.3 though landlord reserved even Hall, searched, See, authority area and either e.g., v. 979 F.2d common United States it, Cir.1992) (6th permis- it or (holding over a substantial interest in a landlord had access”). sion to exercise that tenant’s over his rented common provided the where the furni- room landlord Morales, v. 861 F.2d 3. See States and accessed his own area also United ture Cir.1988) (3d room); (“Authority to consent through the rented United States Block, (4th Cir.1978) from use of to a search arises mutual F.2d 539-41 joint generally having property by persons (extending Matlock to cover mother who over, purposes.”); Peter- most general access or control for authority access had "common 824, (Colo.1997) to, P.2d People, her sen v. 939 832 use a room in house or mutual of” Gradowski, son); limited (holding with a "caretaker by her States v. used United 563, Cir.1974) con- (2d "use and (upholding duties” have sufficient does not F.2d 564 502 search). given premises of to consent to by posses- the party third who consent trol” addition, Rodriguez, discussed v. In in Illinois defendant's car and had "access to the sion of

252

Moreover, the the conflict in federal tion. it meant If that the landlord could by can be somewhat explained recog- appellant’s unilaterally cases enter unit and a distinction nizing between the status of a move the contents to another it would and that of a co-inhabitant of the of rights impact landlord add “use” that would premises. clearly The federal of actual question authority. courts the We ad- authority more reluctant question been to find to III dress this further in Section consent for the former than the latter— below. likely a co-inhabitant than is more B. Apparent Authority

landlord have mutual use in addition to joint Notably, access. the case that one The state argues that Ammend that a concluded landlord had actual au- reasonably ap relied on Eaves’ manager consent, Hall, thority v. United States parent authority to consent to the search involved landlord who also a co- of unit the based on her statement home, inhabitant same who owned had right go that she the stor into in the furniture the rented age room who unit whenever she wanted. Under circumstances, used the rented room to his police rely as a route own may some on the (6th 77, storage space. 979 F.2d Cir. to search given by party consent a third 1992). The state has cited no case that no authority prem who actual has over actual authority by finds a land- consent ises Two searched. United States Su based solely upon rights lord of preme broad cases set boundaries Court in access reserved a lease. generally apparent-authority See 3 the doctrine. LaFave, R. Wayne Search Seizure California, v. Supreme Stoner 8.5(a) (3d ed.1996) § 11n. (citing landlord Court held that the police validly could not cases, none of which authority found actual rely on a hotel clerk’s consent to search a consent). room exclusively occupied by rented and To the extent appellant’s 483, 488-89, lease petitioner. U.S. Big 889, granted manager (1964). Closet and rights its S.Ct. L.Ed.2d 856 access, we hold that manager Eaves did nothing Stoner Court noted that is “there not have actual authority to consent to the in police the record to indicate that appellant’s unit. any basis whatsoever to believe that clerk night had been authorized above, noted agree- As rental petitioner to permit police to search provided ment also the landlord with the petitioner’s room.” Id. at right to relocate appellant to another com- unit. parable party Neither has referred provision any

to this at stage pro- years later, Twenty-six Illinois ceeding. No evidence was offered to its Rodriguez, Supreme Court addressed operated practice. intent how it If in which case former defendant’s contemplated this clause girlfriend gave landlord permission to enter only give would notice tenant to the an apartment rented defendant. 179-80, reimburse tenant for the tenant’s relo- U.S. S.Ct. 2793. The wom- costs, cation it likely rights add key, an let in with a referred to the rights inspec- “use” landlord’s apartment apartment as “our” and told below, Supreme apartment. United States Court the searched 497 U.S. 181— (1990) found there was no be- actual S.Ct. 111 L.Ed.2d-148 Matlock, consenting cause the party (quoting third did not have 415 U.S. n. at 171 988). "joint purposes” access or control for most fact, investigators clothes furniture make mistakes as dis- that she owned and police See, 179, tinguished e.g., at The from law. Id. 110 S.Ct. 2793. mistakes there. Whitfield, the woman lacked 939 F.2d at concluded that 1073-74. Whit- Court authority, in fact field, because she had the D.C. actual Circuit addressed case month out about one before consented police moved where homeowner to a Id. she was invited. only returned when her search of adult son’s room her 181, But 110 the Court S.Ct. 2793. at Investigators at house. Id. 1072-73. tes- of,drugs, for- resulting they seizure upheld tified that understood. the mother test mulating following apparent house, owned the her son’s room was left authority: unlocked, and had “free she access” to The room. Id. D.C. Circuit held that Rod- consent to enter

[D]etermination riguez only to in which “applies situations objective against must be an judged would had valid an officer have consent the facts available standard: would reasonably if the as he facts were at warrant a man the officer the moment at them to be.” Id. believed 1074. that caution the belief of reasonable concluded that the asser- court mother’s had party authority over consenting tions, true, if were not even sufficient premises? establish “mutual use” under the Matlock 188, Terry 110 v. (quoting at 2793 Id. standard, give and thus did not her Ohio, 21-22, 1868, 1, 20 392 U.S. apparent authority to consent. Id. Stated (internal (1968)) quotation L.Ed.2d way, possessed by another if the facts omitted).4 ellipsis marks authority police would not establish actual “objec- have adopted Rodriguez We law, under the reliance on police to consent determining apparent tive standard” for facts those cannot be reasonable. authority. Thompson, See State v. have (‘Where Other decisions followed (Minn.1998) com- N.W.2d Whitfield and held searches unlawful under Rod- exist, authority con- actually mon does not riguez Matlock standards where where, entry under an sent to is still valid received, true, if assurances even standard, objective reasonably an officer fail to establish “mutual use.”5 authority has over party third believes give could consent premises Appellant argues Investigator that enter.”). mis Ammend’s mistake in this case was a if law even Ammend was federal circuit deci take of Subsequent believing manager appar reasonable that Rodriguez held that sions authority only go can when Eaves could into apply ent doctrine (concluding apart Rodriguez officer’s Court construed Stoner to belief 4. The rea- that the in Stoner "could not hold tenant could consent to search of other ment sonably have clerk believed” that hotel apartment tenant’s party’s .the suitcase left in to consent to a search of LaFave, law); supra., see also 1 mistake Rodriguez, petitioner's hotel room. 497 U.S. 8.3(g). § At court construed least one has 110 S.Ct. 2793. just law” case. to be such a "mistake of Stoner Petersen, P.2d at 831. See also State See See, Brown, e.g., v. F.2d United States Frank, (Minn.App. N.W.2d (2d Cir.1992) (concluding that of 2002) (concluding that belief officer’s landlady belief to enter ficer’s authorized of vehicle could consent to search driver apartment appliances electrical turn off found in vehicle was mistake suitcases lights apartment could consent to search of law). law); mistake of United States v. Salinas- (10th Cir.1992) Cano, 959 F.2d 865-66 wanted, unit whenever she that belief view place from that is likewise invalidated would not be sufficient apparent au- by the unlawful intrusion. See id. In this thority manager because Eaves’ statement case, it was opening of the unit door did not establish mutual use under Mat- required justification; plain neither lock. agree. We view nor exigent circumstances authorized Therefore, Ammend to open the door. honest, While searches based on plain exception view Am- does validate unobjec reasonable mistakes of fact are mend’s search. Amendment, tionable under the Fourth police officer’s mistake of search and sei (here,

zure law a mistake as to legal D. Inevitable Discovery requirements for the authority of a land If the state can establish search) lord to consent to a cannot be preponderance of the evidence that “Otherwise, reasonable. the protections of fruits of a challenged search “ultimately or the Fourth Amendment would be effective inevitably would have been discovered ly limited to average police what the offi means,” lawful then the seized evidence is cer believed was reasonable.” Petersen v. admissible even if the search violated the (Colo.1997). People, 939 P.2d Be requirement. warrant See Nix manager cause only Eaves asserted rights Williams, 431, 444, 467 U.S. 104 S.Ct. of access and did not claim to have mutual (1984); 81 L.Ed.2d 377 see also In re use, Investigator objective Ammend’s be J.W.K., (Minn.1998) 583 N.W.2d manager lief that Eaves had the authority (following Nix holding ra “[t]he to consent to a search was not reasonable. tionale of the inevitable discovery excep Rodriguez, See 497 U.S. at * * * tion is that exclusion of evidence 2793; Thompson, 578 N.W.2d at 740. We that would inevitably have been discovered therefore hold that the search appel [improperly] would put prosecution storage lant’s unit does not fit appar position.”). worse The inevitable discov ent exception to the warrant re ery doctrine speculative “involves no ele quirement.

ments but focuses on demonstrated histor C. Plain View ical capable facts of ready verification or Nix, impeachment.” 467 U.S. at 444-45 n.

The state argues that 5, 104 S.Ct. 2501. Investigator Ammend made his initial ob servation of the “reddish-brown substance” The argues state that had In

from unit, outside of storage vestigator opened Ammend not the door to plain search fits the view exception to the (1) he would have either warrant requirement. plain view ex asked manager Eaves to do so while Am- ception to the requirement warrant con (2) mend stood in front of the locker or templates that the police lawfully are in a asked Eaves to do so place and to inform Am- produces plain view of an in mend if she saw whether “it criminating had been article. Horton v. California, 128, 135, cleaned out or had an U.S. automobile inside.” (1990). L.Ed.2d 112 But had manager Eaves When entered into the made an initial unit intrusion into a at Ammend’s place request, she justified intrusion is not by one of have been operating as an agent of recognized exceptions state, to the warrant re and her entry into the storage quirement, objects the seizure plain unit would have violated the Fourth the Nix that the reasons that Mindful of Court’s statement same Amendment entry discovery specula- did inevitable no so.6 “involves Ammend’s tive but focuses demonstrated elements on however, is, argument stronger There capable ready historical facts verifica- along discovery to made inevitable be 444-45 impeachment,” tion 467 U.S. at applied the Hodges, In this court lines. 5, 2501, analysis n. our of this exception to independent source related open questions several issue reveals requirement in a somewhat the warrant whether, by the district addressed court: There, police had circumstance. similar storage in the the the absence of search of “by itself and obtained information which 27, 1999, investiga- unit on the April Isanti ob- the information the had without steps tors have taken to discover would entry, to their warrantless pursuant tained the use cards Licari’s credit of the justified have the issuance would Minneapolis the was a during time she at Hodges, 287 N.W.2d 416. warrant.” person; have missing they whether would Ammend’s Investigator discov- Prior to evidence that obtained at found the ery body, Erickson and Investigator the pawnshop; the and Target the stores already Hermann had ob- Special Agent Target personnel whether the would have Nancy Licari’s information about tained apprehended appellant; whether the and using in- begun cards and had credit resulting of his would have person search It to track was appellant. formation been on the that valid based information investigators the credit cards that through investigators would have had at that time. to appellant to track Minne- were able apprehended by Target secu- apolis. "When

rity, appellant wearing bloodstained III. credit carrying Nancy’s cards clothing, held case will not We have that a keys Big storage and the to Closet findings for more be remanded definite time, Minneapolis police unit. At the same it that district when is clear court car, and a search the car found Smith’s fact considered and decided the issue wallet, Nancy’s purse, picture uncovered Minn, Morse, v. question. Burn See jacket. appel- I.D. and The evidence on (Minn.1931). 518, 521, 237 N.W. unquestionably would have person lant’s however, case, In this court did district led to detain investigators appel- the Isanti impact not reach the issue of the of the lant to seek and a search war- and obtain clause on the landlord’s actual relocation rant for the unit. consent to a or several search Therefore, whether, question ab- is factual crucial inevitable discov issues illegal sent the of the ery/ inevitably investigators have would may We have also held that the state pursued, appellant and found searched would oth- an.argument as have waived the same evidence was dis- uncovered denying an order a motion April support on 1999. erwise covered en- private conducting assist law party search was conducted to Whether private acting agent forcement efforts or further search is an state is (citing question party’s Id. United fact to own ends.” at 618 be resolved district Walther, (9th Buswell, States 652 F.2d State v. 460 N.W.2d v. court. (Minn. 1990). in the answering question, Cir.1981)). proceeded Had the search contemplates, way the district court is to two crucial the state district court consider fac "(1) only concluded under this formula government whether knew of could have tors: (2) .agent state. acquiesced was an in the search and Eaves whether if suppress argument investigators inevitably pur- evidence re- sued, quires appellant, a factual record the state failed found searched develop denying record omnibus court shall an order enter new State, hearing. See Garza N.W.2d trial. If court the district finds (Minn.2001). But we have also the lease re- relocation clause of does not said: serve rights provide sufficient “use” however, authority actual discretion, landlord with to con- may,

We at our de- search, investigators that sent to the and that cide to hear are raised for [issues appeal] inevitably pursued, would not have found first time on when the inter- justice require appellant, ests of their consider- and searched it shall determine addressing sup- ation and them would not what evidence should have been 27, 1999, surprise work an on a party. pressed April unfair as a result suppress search and whether failure to Sorenson, 455, v. 441 State N.W.2d 457 that a new trial. requires evidence (Minn.1989). legal part In Affirmed in reversed in and light suggested by part, of the issues this addressed remanded with instructions. record but not the dis- court, trict of the gravity offense Concurring part, dissenting part,

charged, grounds reversal of and the MEYER, J. previously upon relied the district court and appeals appel- the court of to defeat GILBERT, Dissenting, J. lant’s motion to we conclude that suppress, GILBERT, (dissenting). Justice justice require the interests of a remand. Accordingly, pro- we remand for further I the majority’s While concur with con- (1) ceedings to determine: whether police clusion that if the action here is provision “relocation” in the rental agree- search, considered an unlawful is remand ment, it be applied by as was to the land- appropriate, I respectfully separately write provided lord and appellant, rights such in dissent I do not believe that the “use” upon as would confer the landlord police engaged in an unlawful search. In actual authority to consent to the search of case, were a police responding to (2) unit; whether, the storage and in the missing persons report and were con- 27, 1999, absence of April search of the cerned safety for the welfare and of the investigators would have in- Licaris. The Liearis had been reported evitably pursued, found and ap- searched missing for days appellant had left pellant and uncovered the same evidence Nancy behind a suicide note. Licari’s 28, appellant as was April uncovered on on mother sister informed the 2, R.Crim. See Minn. 28.05 subd. police appellant were rent- (empowering 29.04 subd. 11 Supreme ing a south of storage unit Isanti. The proceedings Court “order further to be family allowed the to look at the had”). storage unit for clues as to the where-

We direct court missing family the district to conduct a abouts of their members. hearing findings fact Accordingly, make on each went to unit of the remanded issues. If the with the permission family district immediate court acting finds that the relocation clause of the members who were behalf of agreement rental missing reserved sufficient rights persons. Officer Ammend testi- of “use” provide the landlord with actual fied that feel he investigat- he did not search, ing hoped something consent or that crime and to find (re- 639, (2000) 487, Li- 171 Vt. A.2d unit to indicate where the gone. process quiring primary subjective In the moti- might caris for the fam- undertaking “cursory vation behind such warrantless searches aid). upon crime to provide emergency Ammend stumbled be ily,” now, as a result of innocent scene and Cervantes, v. ninth United States asking all is discovery, circuit formulation adopted three-prong scene, the crime only found evidence emergency exception that includes thereafter, discovered be but all evidence (9th subjective 219 F.3d prong. suppressed. Cir.2000) Mitchell, (citing People of the United The Fourth Amendment N.E.2d N.Y.2d 383 N.Y.S.2d Article Section Constitution and States (1976)). emergency For the ex- protect the Minnesota Constitution 10 of invoked, the ception following to be three- against unreasonable searches individuals prong test must be satisfied: exigent circum- and seizures. Absent (1) The must police have reasonable cause, consent, or a probable stances grounds that there an emer- to believe is per is entry and search se warrantless an gency at hand and immediate need unreasonable, the Fourth and violates for their for the protection assistance York, v. New Payton Amendment. See (2) life or property. The search must 573, 590, 445 U.S. not be to primarily motivated intent Othoudt, (1980); State v. L.Ed.2d (3) arrest and seize evidence. There (Minn.1992). 218, 222 In addition N.W.2d basis, approxi- must be some reasonable exigent cause and circum- probable to cause, mating the probable to associate stances, recognizes this court also the area emergency place with the to be exception” the warrant re- “emergency to searched. Terrell, See v. quirement. State (Minn.1979). We have N.W.2d added). (emphasis Id. at 888 The facts enter a police may “[t]he that dwell- stated Firefighters follows. Cervantes are as they reasonably a warrant if ing without when a police they called the smelled is in person that a within need of believe an strong emitting from chemical odor Othoudt, aid.” 482 N.W.2d at emergency building. Id. After apartment at 885. legitimate During course of 223. the police a officer determined investigating, may police the seize emergency activities coming appel- the the odor was from Terrell, view. any plain evidence is in apartment, where the smell was lant’s at 532. 283 N.W.2d 886. officer be- strongest. Id. at The methamphet- lieved that the smell was “emergency whether the To determine amine, highly explo- knew requirement ap- which he exception” warrant explosion, Id. an the officer objective Fearing court standard: sive. uses an plies, without the consent apartment with facts available to the entered “whether Id. Once inside occupants. at the moment of seizure or officer a he be- search, he found substance person apartment, of reasonable cau- methamphetamine. to Id. at 887. taken lieved be ap- the action tion believe Othoudt, for and evacu- backup He called promptly 482 N.W.2d at 223. propriate.” The de- However, building. Id. jurisdictions apartment other also ated look suppress fendant the evidence subjective police in moved intentions the warrantless search. determining emergency when found a result of apply -See, ninth circuit held that Mountford, Id. at 887. The exception. e.g., State emergency applied to when exception the offi- he searched unit. fact, with apartment. responding cer’s search of Id. at Ammend was family consent of members to search the court Cervantes stated that its clues storage unit for of the Licaris’ justification adopting for the emergency not whereabouts. It is unreasonable for exception police from the stemmed offi officer, police acting as a responsible pub- community cer’s role as a caretaker when faith, servant, lic to look at the good situations, emergency responding to not police unit. The conduct of the police role officer’s as criminal investi case, assisting officer in this a concerned Thus, gator. Id. at 889. there is no need family’s missing loved search for one to demonstrate probable officers missing person’s accessing the shared stor- cause that a has taken place crime when age be should not deterred. Under they conducting are search pursuant facts, specific emergency these doc- emergency exception are po- trine should be extended to cover the investigating crime. See also discovery lice officer’s of a crime innocent Mountford, 769 A.2d at 645. The court searching missing scene while he was for a Cervantes the subjective also noted person. country from around the Courts motive of officers is essential entry have found warrantless reasonable safeguard citizens’ Fourth Amendment police when are confronted with cases of cause, rights: probable examining “absent Wharton, missing persons. People See v. government a actor’s motivation for con 53 Cal.Rptr. Cal.3d 809 P.2d ducting emergency provides an search a 290, (1991) (citing cases from Califor- necessary safeguard against pretextual re nia, York, Pennsylvania). New Arizona and community caretaking liance on interests do probable When the not have investigation to serve criminal and law en they cause to believe that are to a going forcement functions.” F.3d at 890. crime conducting good scene and are Therefore, subjective expectation of faith missing persons, search for we should officer an essential component is emergency hold that under the exception emergency exception of the because “[t]he their actions do amount to an not unrea- * n * distinguishing of emergency feature sonable search or seizure. is they gener assistance searches are I affirm Accordingly, would the district ated from a to aid desire victims rather court grounds on the stated herein. The investigate than Mountford, criminals.” majority’s based on decision these facts 769 A.2d at 645. consequence has the unfortunate of dis- case, Based on the of the present facts couraging good faith efforts of peace offi- the emergency exception to the warrant missing persons cers to look for or even requirement may directly not be applica- engage in rescue search and missions be- Here, ble. the need to search the storage they unintentionally cause coming risk was, unit was than immediate. less There evidence, inculpatory across which may however, heightened sense urgency. in any have to be excluded subsequent only Not had the Licaris been missing for proceedings. criminal This rule of law days, but had left a note hint- might only not relate to direct evidence ing at suicide. importantly, scene, More the po- viewed but all evidence that lice were in clearly functioning thereafter, their role was Wong uncovered see Sun as community responders opposed States, care United U.S. investigators. (1963), criminal Ammend admit- even though L.Ed.2d ted that investigating ultimately he was not question crime all of the evidence in support the contention that all of other properly collected easily been have would fruit an evidence uncovered was the of time. period a short within search, or that DNA evidence or unlawful officer Alternatively, if the actions on the massive amount blood floor search, I con- unlawful an are considered storage unit be suppressed. should majori- by the result reached cur with the remand, Upon ques- the two unanswered justified proper is ty that remand to be answered are: tions need would of this procedural posture on based inevitably evidence been discover- facts There are numerous case. what, any, ed and if evidence should be reasonably support more than record that suppressed. Investi- discovery doctrine. the inevitable already obtained information gators MEYER, (concurring part, Justice credit cards and had Nancy Licari’s about dissenting part). Crime Alert notifica- out a Minnesota put I agree majority with the Licari, their Nancy appellant, tion unit does not Furthermore, Li- longer cars. authority exception satisfy apparent it probable the more missing, cari requirement, the warrant nor does the following stan- police, would be search. I plain exception view validate the protocol, only investigative dard majority’s with the decision to disagree looking for her auto- continue aggressively district court to remand allow mobile, check the would also use but support record in develop state to a new credit and find that her of her credit cards possible discovery” exception “inevitable husband, a being fact used her card I requirement. disagree to the warrant videotape from the clearly shown giving our amounts to remand Target store. post-hoc a rationalization that is not state discovery it is true that the of While existing in the record and that supported at unit on Nancy body Licari’s the legitimately developed on can never be 1999, 27, the may have accelerated April remand. appellant of and the col- apprehension the opinion on majority The relies Nix specific inculpatory of further lection general proposition for the Williams evidence, in nothing there is pieces of may illegally evidence be admissible seized in the theories ad- any legal record or of by preponder a if state can establish the by appellant sup- the that would vanced fruits the that the of ance of evidence of evidence found suppression all port “ultimately inevitably challenged search or parties all the though thereafter. Even discovered lawful would been proba- the not have police concede that did 2501, 431, 444, 467 U.S. 104 S.Ct. means.” by April get a search warrant ble cause (1984). Nix, the 81 L.Ed.2d 377 Court 27, proba- in have had no time would the regarding examined whether evidence computer at the ble cause. records the condition of her victim’s location and in show the com- storage unit issue would under the doctrine body could be admitted from the stor- ings goings of the discovery of inevitable when relatively period unit. In a short of age body’s location in violation learned the time, Nancy body or her DNA Licari’s at suspect’s right to counsel. Id. of the at have been uncovered evidence would 434, 104 S.Ct. 2501. Therefore, discovery if even scene. Nix, Williams, defendant in Robert body Nancy Licari at the unit suspect disappearance in of 10- was a suppressed, there is no basis to should be year-old Powers, girl’s in pect Pamela who had been there disappearance so body seen on at a no risk last Christmas Eve YMCA was the evidence Moines, 435, disappear. Des Iowa. Id. at S.Ct. Id. at 2501. S.Ct. Second, placed An eyewitness girl 2501. the search for the well Williams underway at the scene the disappearance, and the and staffed two hundred vol- Third, girl after day disappeared body several unteers. Id. was found clothing items of her cloth- and Williams’ within the area to be searched and near a culvert, ing stop were precisely discovered at rest on which was kind of 434-35, in rural Id. place Interstate 80 Iowa. at had been volunteers directed to 448-49, 104 S.Ct. 2501. Based on the at at evidence search. Id. 2501. S.Ct. hand, Fourth, police began searching for miss- testimony there was that had the girl ing along the interstate where the search continued it taken would have clothing time, volun- period found. Two hundred short perhaps an additional hours, teers involved in the body. search were directed three to five to discover the roads, to “check all abandoned farm build- Id. at 2501. S.Ct. Under these ditches, culverts, facts, ings, any such ap- other” Court was satisfied hiding spots. Id. at plication discovery S.Ct. 2501. of the inevitable doc- The search speculative commenced at a.m. and was trine no involved elements and off at p.m. historically called when based Williams directed was on facts. verifiable body 449-50,104 in a located ditch Id. 2501. beside road, a gravel essentially within the area vigorous Unlike the focused and investi- 436, 449, to be searched. Id. at Nix, gation play person the missing Nancy search for generalized Licari was appeal, On incriminating Williams’ state- The police routine. received body’s ments about missing location were held person report April issued to be inadmissible because statements a Minnesota Crime Alert within notice days, were obtained in right violation his two obtained Licari’s under counsel the Sixth Amendment and credit card information. Officer Ammend the case was remanded for new trial. absolutely testified there was no sense of Nevertheless, Id. at 104 S.Ct. 2501. urgency exigency about missing the Court held the evidence of the person body matter before the was discov- body post-mortem and properly tests were in ered. The state its brief characterizes admitted in police the second trial the storage search of the locker as inevitably evidence have “just would been dis- for looking missing some persons, by covered a ‘doing courtesy search for the victim that was kind of a [sic] search for already 449-50, being pursued. family basically’ Id. 104 the and not investigating S.Ct. 2501. To limit speculative appli- police investigators a crime.” The testified doctrine, cation of the discovery inevitable at the hearing omnibus that before the proof required body Court that the of inevit- police was found the were not about discovery able speculative “involves no ele- Craig to arrest Licari and did not consid- but ments focuses demonstrated histor- him a Nancy er in suspect disap- Licari’s capable ical facts of ready pearance. verification or The police search- merely were impeachment.” Id. at 444-45 n. 104 ing anyone for who had used the credit cards or had seen Nancy Craig Licari.

In Nix investigation already under- only body It was after the was discover- way vigorous. First, was focused and police ed that two learned that of already custody Nancy Williams was in as a sus- Licari’s credit cards had been used motel, gas a area at the Twin Cities in Application

station, Only after the In the Matter of Lin- Target store. and police make did local body Ganje, was discovered da and Michael as B. GANJE J. Minneapolis Homicide Di- contact with joint Register the Title of tenants vision, help investigation an and with its Land, Certain Li- Minneapolis in focused on begun point From that on the suspect. as a cari investigation by was tainted police entire Application the Matter Licari had been knowledge Nancy Charles S. M. SCHULER Susan in body her found killed and Schuler, wife, joint husband after by Craig Only Licari. owned locker Register tenants Title Cer- investiga- body was discovered did tain Land. vigorous, focused and tion become lead the to Licari.

eventually police No. C4-02-1497. historically verifiable facts are the What Licari investigation? Nancy in the instant Appeals of Minnesota. Court of days. police missing several 8, 2003. April Craig Licari as a focused on were not Licari’s suspect disappearance. custody not in and thus

Craig Licari was police And the body. to move the

was free nothing matter as more treating the

were investiga- missing person

than routine historically is verifiable

tion. There no police offi- that the Isanti

way to establish enlisting have

cers would succeeded De- Minneapolis Police

assistance missing person in- routine

partment police

vestigation; April wearing his Licari

arrested clothes, key locker

bloody with Craig or that Licari would pocket;

in his body moved the before the

not have urgency of the

reached him. It was the led investigation that

homicide Licari, any offer the state independent discovery is mere

proof may if happened on what

speculation body. proof is

they had not found by police that the inevit- tainted error

so discovery ap- not be doctrine should

able

plied. respectfully

I dissent.

Case Details

Case Name: State v. Licari

Court Name: Supreme Court of Minnesota

Date Published: Apr 17, 2003

Citation: 659 N.W.2d 243

Docket Number: C2-01-290

Court Abbreviation: Minn.