This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-668

State of Minnesota,
Respondent,

vs.

Keith Winston Talley,
Appellant.

Filed February 8, 2000
Affirmed
Davies, Judge

Hennepin County District Court
File No. 98076456

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Ave., Room 254, St. Paul, MN 55105 (for appellant)

Considered and decided by Davies, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

Appellant Keith Winston Talley challenges the district courtís denial of his motion to suppress evidence. He argues that the district court erred when it concluded that he did not, while on a front porch, have a reasonable expectation of privacy under the Fourth Amendment. Appellant further argues that the district court erred when it concluded that a police officer lawfully entered the front porch without a warrant and arrested him for felon in possession of a pistol. We affirm.

FACTS

Appellant claimed he was a frequent social visitor at the home of Bill and Karen Roch in Minneapolis. The home is a large, two-story house with several steps leading to a screened-in front porch. The main house door is located inside the porch. Appellant claimed he spent the day and evening of July 29, 1998, at the Roch home.

That evening, police officers patrolled the neighborhood around the Roch home for suspected drug trafficking. The officers, based on training and experience, concluded that activity in the area was consistent with drug trafficking.

At approximately 11:00 p.m., two officers driving marked squad cars approached the Roch home. Two males, who had been sitting on the front steps, ran onto the screened-in front porch when they saw the police cars. The officers, suspecting the two males had been "loitering with the intent to buy or sell narcotics," decided to find out whether the males lived at that address.

An officer walked up the steps to the porch door, opened it, and shined his flashlight inside. There he saw appellant, another male, and a female sitting on a couch. The officer saw that each male had a gun at his feet.

Appellant was arrested for felon in possession of a pistol. After the district court denied appellantís motion to suppress evidence of the guns, appellant was convicted of violating Minn. Stat. ß 624.713, subd. 1(b) (1998). This appeal follows.

D E C I S I O N

I.

A defendant may claim Fourth Amendment protections if he can show that "he personally has an expectation of privacy in the place searched" and that society recognizes his expectation as reasonable. Minnesota v. Carter, 119 S. Ct. 469, 472 (1998). An overnight guest has Fourth Amendment protections because "[s]taying overnight in anotherís home is a longstanding social custom that serves functions recognized as valuable by society." Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 1689 (1990). Conversely, a person without any previous connection to the premises, who is present briefly and for business purposes, does not have a reasonable expectation of privacy. Carter, 119 S. Ct. at 473.[1]

This court has held that an overnight stay is not required for a person to have a reasonable expectation of privacy. Overline v. State, Commír of Pub. Safety, 406 N.W.2d 23, 626-27 (Minn. App. 1987). Fourth Amendment privacy rights "may be based also on a personís long-term connection to the premises." State v. Reynolds, 578 N.W.2d 762, 765 (Minn. App. 1998). Appellant argues that, consistent with Reynolds, he had a reasonable expectation of privacy on the porch because he has had a strong connection to the Rochs; having known them for seven or eight years, visited their home frequently each month as a social visitor, attended their social gatherings, and eaten meals at their home. He claims he was, on July 29, 1998, a visitor at the Roch home the entire day and evening. But these factual claims by appellant rest entirely on his own testimony and were rejected by the district court.

The district court found that appellantís testimony was not credible and thus concluded that he did not qualify as a social guest and therefore did not have a reasonable expectation of privacy. This court will not overturn a district courtís determination of a witnessís credibility at an omnibus hearing unless it is clearly erroneous. State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). Quite simply, there is no evidence in this case that would suggest that the district courtís credibility determination was clearly erroneous.

Appellant, thus, had no reasonable expectation of privacy.

II.

Even if appellant had established an expectation of privacy, the evidence need not be suppressed because the police officer was acting lawfully when he spotted the gun at appellantís feet.

The officers, from their experience and training, observed activity in the neighborhood around the Roch home that evening that looked like a regular narcotics operation. As the police car approached the Roch home, two males who were sitting on the front steps ran onto the porch. Based on the conduct in front of the Roch home, the officers had a reasonable suspicion to approach and question the occupants of the front porch. See Illinois v. Wardlow, No. 98-1036, 2000 WL 16315, at *4 (U.S. Jan. 12, 2000) (holding that nervous, evasive behavior is another pertinent factor in determining reasonable suspicion).

The officer who approached the home testified that he saw the guns while standing "on the threshold of the door with the door open." Police officers may, without infringing on the Fourth Amendment, approach a dwelling to investigate, if they go only where visitors generally go. See State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (police officers, even without warrant, may enter portion of curtilage impliedly open to public). Lawfully positioned officers may seize as evidence items that are in plain view. Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993 (1968). When officers are lawfully positioned, their use of a flashlight falls within the plain-view doctrine. See Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970) (object in plain view during daytime remains in plain view at night when viewed with flashlight).

Because the officer was lawfully positioned on the threshold of the porch and saw the gun in plain view, the evidence was lawfully seized. The district court properly denied appellantís motion to suppress.

Affirmed.

[1] We view the "business purposes" aspect noted in Carter as evidentiary, rather than as a factor that will defeat a right to privacy that otherwise exists. Thus, evidence of a business purpose is material evidence that will help disprove social-guest status. But once the status of social guest is established, having had a business purpose does not defeat the social-guest status--or the right of privacy that accompanies that status.