*1 attorney furnishings personal request Connie’s for an award of goods, household appeal fees for her is denied. she should have been property, and that $10,000 remaining from awarded the entire the homestead.
the sale of VI. party each submitted a list of At trial argued David that the trial court thereof. Connie property and valuation abused its discretion when it reserved an personal prop- the value of estimated that support. award child $5,565, erty possession in her was provides that when the subd. § property possession in David’s value of per obligor net month of the is income $400 $18,370. property in valued the David less, ability is order based $4,917. possession at He did not value obligor provide support. The trial to Connie. property awarded did not its discretion in reserv abuse support. of child issue parties had The trial court found separate househоlds since each established separation and that insufficient evi- DECISION proper- to determine that the dence existed PART, IN IN AFFIRMED REVERSED equal. The court
ty was less than division PART AND REMANDED. person property then awarded each currently possession. in his or her each
The distribution household goods furnishings overturned will be
only upon showing that the trial court Schmitz, its discretion. v.
abused Schmitz No N.W.2d of discretion occurred the distribu abuse Minnesota, Respondent, STATE goods. sаy Nor can we tion of household in the trial an abuse of discretion occurred SORENSON, $10,000 Appellant. pro equal court’s division of the S. Cal ceeds. No. C9-88-225. argues responsibility David Appeals of Minnesota. Court of $1,700 paid more than which he Oct. 1988. expenses not resolved. The household request for reim trial court denied David’s 1, 1988. Dec. Review Granted $1,700 expenses which
bursement over he incurred. This was not an abuse
discretion.
V. may A trial court award rea attorney party to a after cоn sonable fees sidering par resources of both the financial (1986). The deci ties. Minn.Stat. 518.14 grant an award sion of whether to such entirely the discretion rests almost within Novick, 366 of the trial court. Novick v. (Minn.Ct.App.1985). Con more than attorney nie incurred fees of $10,000. court awarded her The trial
$2,000 the trial attorney fees. Given making the deci
court’s broad discretion sion, here. no of discretion occurred abuse *2 III,
Hubert Humphrey, Atty. Gen., H. Stanich, Sp. Atty. Gen., Robert A. Asst. St. Paul, Sobolik, Dennis Atty., M. Kittson Co. Brink, Sobolik, Seversоn, Malm, Vroom & P.A., Hallock, respondent. Nielsen, Lancaster, Bruce appellant. by Considered and decided SCHUMACHER, P.J., and RANDALL *, JJ., and MULALLY oral without argument.
OPINION
SCHUMACHER, Judge. appeals Cal S. Sorenson from a transporting loaded,
conviction for un- vehicle, cased firearm in a motor in viola- 97B.045(1)(1986). tion Minn.Stat. Ap- pellant contends conservation officer’s search of his property was uncon- stitutional, and that the fruits of this should suppressed by have been trial court. We affirm.
FACTS On November state conservation patrolling officer Brian Buria was Caribou Township in County Kittson when he ob- served substantial amount of vehicle traf- coming going fic from and Cal hunting camp. S. Sorenson’s Officer Buria camp decided to enter the any game or whether fish laws were particularly whether all hunt-
hunting ers had valid licenses. camp posted with no signs,
trespassing gated and a fence leading camp. the road blocked Offi- * Const, Acting judge appeals ap- pointment pursuant Minn. art. 2.§ opened gate cer Buria upon pro- law violation had occurred and did not ad- ceeding camp into the hang- found a deer dress the issue of whether conservation pole. examining from a meat After probable cause, could discovering deer and that it properly make warrantless searches *3 tagged, Officer Buria noticеd a deer stand lands. adjoining
in an appeared field which present case, In only height exceed infor restrictions. While on his mation way available to stand, prior to examine the Officer deer Officer entry upon appellant’s his appellant approaching property, Buria heard in a ve- hunting camp that a appellant appel hicle. Officer Buria motioned for was located on lant’s appellant property, observed that increased had a amounts of traf loaded, gun in fic stopped entering leaving were appellant’s vehicle. appellant Officer property, Buria issued hunting citation for and it was deer season. violating 97B.045(1) (1986). information, supporting This while Buria’s § Appellant appeals from his hunting conviction on conclusion occurring on charge. this land, appellant’s give did not proba Buria gаme
ble cause to believe a
law violation
ISSUE
Consequently,
occurred.
we are faced
determining
with
issue of
whether con
May
officer,
a state conservation
servation officers
pri-
need
performance
duties,
of his
enter
making
or to
pri
warrantless searches on
land
establishing probable
without first
vate lands.
believe
violation of the law ei-
occurred,
ther
occurring?
has
or is
In order for
to establish
рresence
conservation officer’s
on
ANALYSIS
property
was an unreasonable search
Minnesota conservation
giv-
officers are
constitutionally prohibited,
statutory
en broad
authority to “enter any
must first establish that he had a “constitu
carry
land” to
out the duties and functions
tionally protected
expectation
of the fish and wildlife
of the
division
De-
privacy” in the area searched. Katz v.
partment of Natural Resources. Minn.
States,
347, 360,
United
389 U.S.
88 S.Ct.
97A.205(2) (Supp.1987)
Stat.
(emphasis
§
507, 516,
(1967).
The activi
added). The trial court held that this stat-
by
ties
the conservation officer
ute
appel-
authorized Officer Buria to enter
appellant’s property
place
while on
took
lant’s
property without first estab-
entirely
open
ap
fields. Consequently,
lishing probable cause to
a violation
believe
pellant’s
rights
fourth amendment
were
game
the state’s
had oсcurred.
laws
special protec
not
because the
statute,
contends that
this
by
tions accorded
the fourth amendment do
interpreted by
court,
the trial
is an uncon-
open
not extend to
fields. Hester v. Unit
infringement
stitutional
protections
States,
57, 59,
ed
44 S.Ct.
guaranteed by the fourth and fourteenth
(1924).
We
solely
case does not deal
with a
that this
respectfully
dissent.
does
fields,”
but also involves
search
correctly frame the issue where it states:
“curtilage” surrounding ap
information,
suppоrting
This
while
Bu-
protec
pellant’s cabin. Fourth amendment
hunting
ria’s conclusion that
was occur-
home and to the
tion extends both to the
give
ring
did not
surrounding
curtilage
immediately
Buria
cause to believe a
curtilage
The term
has been de
home.
Consequent-
law violation had occurred.
fined to mean:
ly, we are faced with the issue of deter-
The area to which extends the intimate
mining whether conservation officers
“sanctity
assоciated with the
of a
*4
probable
prior making
need
cause
to
war-
privacies
home and the
of life.”
man’s
rantless searches on
lands.
Oliver,
180,
vestigation immediately within the area I. surrounding cursory of a the cabin was nature. The officer did not searches Warrantless surrounding immediately the cabin. area concedes, The State of Minnesota only activity conducted near cabin majority acknowledges, that Officer Buria inspection the officer’s of a deer to see not, prior entering appellant’s land did prоperly tagged. that it was him, knowledge leading stopping have on viola claims based probable cause to to the level of believe tion of the state constitution were not that a law violation had occurred. It of the trial brought to the attention that searches conduct- is time-honored law for the first time on and cannot be raised upon probable ed without a warrant issued Nelson, appeal. 291 Minn. Nelson v. аre, se, per subject unreasonable and only precise exceptions. certain Hanley, 363 N.W.2d DECISION stated, any possi- judgment The state does not claim For the reasons exceptions open the trial court is affirmed. to them such as war- consent,1 rantless search but AFFIRMED. search but incident to a or warrantless RANDALL, J., concedes no lawful arrest.2 Since the state dissents. specif equally 2. “We need not decide whether the initial оbser- 1. "It is well-settled that one of the they stopped ically exceptions requirements before vations of the established truck, gave probable them cause to believe that both a warrant and cause is statute, to consent. had witnessed a violation search that is conducted Bustamonte, something justified have both an which would Schneckloth v. (1973)." under the motor Han arrest and a warrantless search requirement." vehiclе to the warrant ley at 738. search, justify, that, cause for a warrantless nor does the state claim at the to sustain the seizure of the this avenue time stopped appellant’s Officer Buria ve- conviction, weapon, hicle, and thus the is any particularized he objec- to them. closed suspecting tive appellant basis that in criminal Id. II. Although majority points out that the Articulable officer, land, appellant’s once оn claimed to adjoining have seen a deerstand in an field This issue comes closest to the actual possibly legal height which exceeded the if the fact situation. Even state had less limit, there is no claim the state that necessary probable than the cause to arrest particularized Officer Buria had a (a belief without a warrant valid warrantless ar- person suspected was the rest would lead to valid search “incident erecting possi arrest”) lawfully to lawful and then search bly unlawful deerstand. The officer enough did appellant, or less than viewing not know when the deerstand that legally without a it was in any even use warrant and then the fruits of that *5 way under his care arrest, or control. justify search to the state can coming directly stand; was not from the stop the of if use fruits this and search the specifical and Buria does not claim that he weapon plain sight was in and seized after ly stopped appellant suspecting that stop premised suspi- a lawful on articulable stand stop was his. Buria’s of suspected cion that was of crimi- was “curiosity.” based classic In See Mar activity. stop, nal order to make such a State, (Minn.1980), ben 294 v. N.W.2d 697 detaining particu- “the officer must have a (quoting 413, People Ingle, v. 36 N.Y.2d objective suspecting larized and basis for 420, 39, 369 N.Y.S.2d 330 N.E.2d 44 particular person stopрed of criminal (1975)): activity.” Cortez, United States v. 449 411, 417-18, 101
U.S.
S.Ct.
66
required
All
stop
that is
is that the
(1981).3
L.Ed.2d 621
whim,
product
caprice,
be the
of mere
or
curiosity.
idle
Cortez,
ap
has
cited
been
Minnesota
pellate
approval.
courts several times with
e.g.
Perpich,
F.Supp.
Id.
v.
590
See
Stark
Appelgate
1057,
(absent
v. Commissioner
Public
(D.Minn.1984)
1059
articula-
of
(Minn.1987);
Safety, 402
106
conduct,
N.W.2d
suspicion
State
of
use of
unlawful
Mallory, 337
v.
roving patrols
stop
to
vehicles at random is
unconstitutional.)
stopped,
Once
vehicle
was
view,
weapon
so a
It is
in Minnesota and
was
settled law
other
wardens,
“plain
per-
jurisdictions
game
view” seizure would
like all
have been
stop
justified.
peace
missible if the
But on
need at least articulable sus-
suspicion prong,
justify
picion momentary stops
minimally
for
and
articulable
to
stop,
the state fails. The facts do not
intrusive detention.4
Richards,
549,
(Minn.
jurisdictions,
State v.
4. Numerous
in additiоn to Minne
284 N.W.2d
551
sota,
1979)
added).
(emphasis
applied
have
fourth amendment standards
suspected
to searches of vehicles involved
Munoz,
desert,
game
footprints
knowledge
law violations. U.S. v.
701 F.2d
3. Based on
aliens,
tracks,
(9th Cir.1983) (holding
suspi
smuggling
illegal
of
1293
articulable
vehicle
game
roving
pieces
required
to make
and other identifiable bits and
mation,
of infor-
cion
for
warden
cutting permits
patrol
particular-
stops
border
officers had a
vehicle
to check for wood
Stricklin,
violations;
objective
suspecting
game
ized and
basis for
and
United States v.
(10th Cir.),
denied,
stopped
son
su-
F.2d
cert.
Thus the
534
831,
1386
reversed,
92,
(1976);
preme
finding
border
mally (2) intrusive any carry enter land to out the duties Prouse, 648, division; v. U.S. see Delaware and functions (1979), L.Ed.2d 660 and S.Ct. (3) investigations make of violations of McKinley, 305 Minn. v. laws; Stаte game and fish (1975). (4) affidavit, if take an it aids an investi- gation; reading A Richards at 551. careful nothing unique (5) arrest, warrant, discloses person Richards without a laws, game opposed enforcement of who is detected in the actual violation of laws, provision and fish the enforcement of others. For valid 84A, chapters 86A, searches, arrests, 88 to 106A sec- stops, and/or and/or 89.61; tions 89.51 1) subdivi- proper Richards discusses the methods: (1), (2), (5), (7); sion clausеs cause; 2) pursuant to 609.68; and suspi- a lawful based on articulable (6) cion; 3) person take an to a violation of a law arrested before a county court in the where the offense sight committed within the of the officer. complaint. committed and make a present None of these three are this case. The subdivision issue is subdivision Supreme The United States Court case of Hoag misreads Prouse, Delaware v. if Hoagland claim that (1979) is instructive. 97A.205(2) anything except do allow conser *6 history tracks the case Prouse officers to vation enter land without amendment, stops, fourth auto and seizure trespassers. called As the con (ab- of from that auto. Prouse evidence cedes, Hoagland authority is not for con exception out for sent a narrow carved servation officers to make warrantless checking patrols United States bordеr probable searches without cause. A con borders, illegal aliens near international private public servation officer can enter or exception applicable here), held that 97A.205(2) but oncé hav law enforcement officers need at least ar- subject entered to the remains fourth suspicion Rights.5 ticulable and reasonable that the Bill amendment of the of Unless engaged type illegal motorist is in some the officer has either cause that a committed, activity stop produce enough before can evi- crime has been or artic- suspicion properly question dence that can be admitted ulable some one, here, criminal trial. at 1399. neither of which the state has Id. at 99 S.Ct. 97A.205(5) supply missing
section does not requirements by constitutional osmosis. III. legisla- It cannot be assumed that 97A.205(2) Meaning Minn.Stat. § ture, passing 97A.205(2), section intend- аpplicable The statute states as follows: exception ed to override or create an An enforcement to: officer is authorized fourth amendment for conservation offi- (1)execute and war- presume serve issued cers. To do so would be to that processes relating legislature rants and to wild ani- intended an unconstitutional mals, rice, waters, result, public pol- principle wild and it is an water established sеizures, (1980); Wolfe, shall not be 423 State v. 137 Ariz. 669 reasonable searches and issue, (Ariz.App.1983); Taylor, P.2d 111 State v. and no Warrants shall but (1985); cause, Vt. 491 A.2d Commissioner supported Oath or affirma- Palm, Pa.Super. Commonwealth v. tion, describing place particularly to be Hillock, (1983); A.2d A.2d searched, things persons or to be seized. (Me. 1978). Const, amend IV. U.S. right people 5. The to be secure in their houses, effects, persons, papers, against un- statutory interpretation that statutes are during flight view from the offi- construed so as to avoid an unconstitution- cers. al result. National Labor Relations case, In each the evidence was seized on Bishop Board v. Catholic Chicago, 440 lands to the evidence of activity being directly visible to (1979); Application Christenson, 417 eye. the naked If law enforcement offi- cers, whether on or off the by, walk policy behind this principle is that by, fly drive or over land and see presume legislatures courts do not growing marijuana illegal or other intend Therefore, unconstitutional results. plain sight, it is compat- reasonable and harmony to remain in with the fourth process ible with due they can use amendment, the Minnesota statute at issue what have seen to bolster further interpreted, here must be not to override investigation and search. Constitution, the United States but to be Here, gun, the uncased object of this in conformity read therewith. With or exercise, way, shape no or form 97A.205(5), without section the basic alter- visible to either from outside the natives for a valid search remain. There camp deer or after he had walked through warrant, must be a enough valid search or gate. All Buria could appel- see was support a warrantless Appellant’s lant’s vehicle. vehicle was not search, enough suspicion articulable against the law. vehicle was lawfully stop possible crimi- process not in committing any viola- nal These three do not exist here. tions of the law. Buria had to motion 97A.205(2), alone, standing Section is not a over, stop appellant’s vehicle, fourth. up walk to it and look inside before he could see the weapon. For this
IV.
automobile
which resulted in the
Open
field
issue,
search and seizure at
Buria needed
I submit the
so-called
fields” doc-
at least
articulable
simply
trine
applicability
has no
to this fact
stopped, appellant,
son he
situation, and should not enter into the
*7
type
activity. Cortez,
some
of criminal
analysis.
leading
United States Su-
417-418,
U.S. at
illegal stops, against improper search also, through applica- seizure ihust reason, tion of apply to the conservation officer in dastardly search of the scofflaw who, knowing daily limit on sunf-
ish is catches 31. suppress would reverse and the seizure weapon of the uncased prod- uct of a conducted without “articula- suspicion” and a warrantless search conducted without cause. PRODUCTION CREDIT ASSOCIATION MINNESOTA,
OF WEST CENTRAL formerly Production Credit Association Alexandria, Appellant,
Anthony BARTOS, al., C. et
Respondents, Lowry Bank, Lowry, Minnesota, Plaintiff,
third-party Respondent. No. C1-88-719. Appeals Court of of Minnesota. Oct. 1988.