This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-97

 

State of Minnesota,

Respondent,

 

vs.

 

Jerred Otto Norring,

Appellant.

 

Filed August 15, 2000

Affirmed

Randall, Judge

 

Isanti County District Court

File No. T2-98-3124

 

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

 

D. Sherwood McKinnis, 2211 Main Street South, Cambridge, MN 55008 (for respondent)

 

John J. Scanlan, Route 2, P.O. Box 259, Hinckley, MN 55037 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges his conviction of underage drinking and driving, careless driving, and speeding, arguing that the district court should have granted his posttrial motion for a judgment of acquittal, vacation of judgment, or a new trial because the state failed to provide notice of certain evidence as required by Minn. R. Crim. P. 7.01. We affirm.

FACTS

In December 1998, appellant Jerred Otto Norring was involved in a two-vehicle accident. Officer Todd Schuster of the Braham Police Department arrived at the scene and observed two vehicles with heavy damage. When he asked if anyone was hurt, he was directed to Norring's vehicle where he found Norring seated in the driver's seat with numerous facial injuries. Schuster noticed the odor of an alcoholic beverage coming from Norring and noted an unopened can of beer on the floor of the vehicle. Isanti County Sheriff Deputy Chris Caulk arrived at the scene and assisted in removing Norring from his vehicle. Caulk observed the odor of alcohol as he assisted at the scene. When Norring was taken to the hospital by ambulance, Caulk followed. While talking with Norring at the hospital, Caulk noticed that Norring's breath smelled of alcohol.

Norring was charged in Isanti County District Court with one count of underage drinking and driving; one count of careless driving; and one count of driving too fast for conditions. Before trial, Norring moved the district court to dismiss the charges for lack of probable cause and to suppress the state's evidence as illegally obtained. The motion was denied. Following a jury trial, Norring was convicted on all counts. He then moved for a judgment of acquittal, vacation of judgment, or a new trial, arguing that Caulk's testimony was based on an undisclosed search asserting that the search was an illegal, warrantless search and a violation of Norring's medical privilege. Norring's motion was based in part on the fact that the state's notice pursuant to rule 7.01 of the Minnesota Rules of Criminal Procedure did not include notice of evidence obtained as a result of a search. The notice did disclose that the state was in possession of a blood test and that Schuster and Caulk might be called as witnesses at trial.. The district court denied Norring's motion.

D E C I S I O N

Norring argues that the district court erred by not granting Norring's posttrial motion because the state violated the notice requirement under Minn. R. Crim. 7.01 when it did not disclose in its rule 7.01 notice Caulk's observations of Norring at the accident scene and in the emergency room.

Under rule 7.01 of the Minnesota Rules of Criminal Procedure, the prosecutor must notify the defendant of "any evidence against the defendant obtained as a result of a search." Minn. R. Crim. P. 7.01. In misdemeanor cases, the notice shall be given either in writing or orally on the record. Id. In State v. Anderson, 414 N.W.2d 747 (Minn. App. 1987), this court addressed whether evidence obtained pursuant to a search may be suppressed for the state's failure to provide proper notice under rule 7.01. In that case, the defendant was charged with three misdemeanor zoning-ordinance violations. Id. at 748. The defendant objected to the introduction of aerial inspection photographs and evidence of the county building inspector's ground inspection, arguing that "the evidence was obtained from a search and seizure for which no Rule 7.01 notice had been given." Id.

This court held that the ground inspections were of "open fields" and not subject to a reasonable expectation of privacy. Id. at 749. Similarly, the aerial inspections were not subject to a reasonable expectation of privacy, if conducted in public airspace. Id. at 750. The court concluded that the state's evidence was not the type excludable for Fourth Amendment violations and thus, was not subject to disclosure under rule 7.01. Id. at 749-50. The court went on to note that even if the evidence was subject to rule 7.01 disclosure, the district court was required to consider the extent of any prejudice to the defendant when considering appropriate sanctions for the state's nondisclosure. Id. at 750. The court determined that the defendant suffered no prejudice because he received actual notice through the complaint and notice received just before trial, which included the county building inspector's reports. Id.

The issue was again addressed by this court in State v. Nelson, 483 N.W.2d 739 (Minn. App. 1992). In that case, the defendant was charged and convicted of being in physical control of a motor vehicle while he had an alcohol concentration of .10 or more, a misdemeanor. Id. at 739. Police officers found the defendant behind the wheel of his parked car in an intoxicated condition. Id. Neither defendant nor his attorney was served with rule 7.01 notice and defense counsel moved the district court to suppress all rule 7.01 evidence. Id. at 740. The district court denied the motion, ruling the defendant was not prejudiced by the state's failure to disclose "because he had already received all the evidence that would have been disclosed under a rule 7.01 notice." Id.

Here, Norring has failed to allege or demonstrate that he suffered any unfair prejudice by the state's failure to disclose the challenged evidence in its rule 7.01 notice. Although the state obtained a blood test indicating Norring's alcohol concentration, the state did not introduce it into evidence at trial. Further, the state's notice listed Schuster and Caulk as possible witnesses at trial. Norring also received a copy of the complaint, which included Schuster's observations of Norring at the accident scene. The complaint states that Schuster noticed the smell of an alcoholic beverage emanating from Norring and that Schuster told Caulk that he believed Norring had been drinking. The complaint also states that Schuster recovered an unopened beer can from Norring's vehicle. Thus, like the defendant in Anderson, based on the complaint and the state's notice, Norring "could have anticipated the state would produce any inspections it had as evidence at trial." Anderson, 414 N.W.2d at 750. Norring has also made no claim of unfair surprise because of the state's alleged improper rule 7.01 notice. Because Norring has failed to allege or establish that he suffered any prejudice, the district court did not improperly deny Norring's request for a judgment of acquittal, vacation of judgment, or a new trial. See Minn. R. Crim. P. 31.01 (providing "[a]ny error [or] defect * * * which does not affect substantial rights shall be disregarded"). We do not condone game playing by the state on disclosure. The best practice is to disclose everything that could reasonably be called for by the rules. It is not up to the state to mentally put themselves in the position of the defense attorney and decide that "this could be useful so we will disclose it, but this probably won't be useful so we won't disclose it." We do not find any "game playing" here, but we understand appellant's argument.

Further, we conclude that Norring was not subject to a search at the scene of the accident or while being treated in the emergency room. "A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy." State v. Hardy, 577 N.W.2d 212, 215 (Minn. 1998) (citation omitted). Norring has failed to present any authority to support the conclusion that he had a reasonable expectation of privacy at the scene of the accident or while being treated in the emergency room. Both the scene of the accident and the emergency room are public places and not ones where "a person has a reasonable expectation of privacy." Id. Because Norring did not have a reasonable expectation of privacy at the scene of the accident or while in the emergency room, the observations made by Caulk were not subject to Fourth Amendment protections and thus, were not required to be disclosed pursuant to rule 7.01. See Anderson, 414 N.W.2d at 749 (holding evidence that is not
type excludable for Fourth Amendment violations need not be disclosed pursuant to rule 7.01).

The record indicates that Deputy Caulk noticed the odor of an alcoholic beverage coming from Norring while providing assistance to Norring and other rescue personnel. Deputy Caulk's face-to-face observation was permissible investigation that an officer may conduct. No reported Minnesota decision has held that an officer's detection of an odor constitutes a search under the federal or state constitutions. To the contrary, Minnesota courts hold that a police officer's olfactory observations are permissible and provide sufficient probable cause for an actual search. See State v. Hodgman, 257 N.W.2d 313, 314-15 (Minn. 1977) (holding officer's detection of marijuana odor through vehicle's open window constituted sufficient probable cause to search driver and vehicle); State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973) (holding probable cause existed to justify search of defendant where officer smelled burnt marijuana); State v. Lozar, 458 N.W.2d 434, 439 (Minn. App. 1990) (holding officer's olfactory observation in "open field" not unlawful and provided probable cause for search warrant), review denied (Minn. Sept. 28, 1990); State v. Schuette, 423 N.W.2d 104, 106 (Minn. App. 1988) (holding officer's detection of alcoholic odor emanating from driver's vehicle constitutes probable cause to search vehicle); State v. Pierce, 347 N.W.2d 829 at 833 (Minn. App. 1984) (observing officer's detection of odors alone is sufficient probable cause justifying vehicle search).

We conclude that Norring was not subject to a search while in his vehicle or in the emergency room. Because Norring was not subject to a search by Caulk, the state was not required to provide disclosure of Caulk's observations under rule 7.01.

Affirmed.