This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dean Jerry Hanson,
Anoka County District Court
File No. K2997752
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Dean Jerry Hanson contends that the district court erred in denying his pretrial motion to suppress evidence because (1) a Super 8 motel employee was an instrument of the state, and (2) the police did not obtain proper consent to search appellant’s motel room. We affirm.
Appellant contends that the district court’s finding that the head housekeeper at the Super 8 motel was not an instrument of the state is clearly erroneous. We disagree. Because it is a question of fact “whether sufficient governmental involvement exists to transform a private search into governmental action,” the district court’s decision is upheld unless clearly erroneous. State v. Buswell, 460 N.W.2d 614, 615 (Minn. 1990) (citations omitted).
There is no constitutional violation based on a private search, even if it is unreasonable. Id. at 617-18.
If, in the light of all the circumstances of the case the private individual must be regarded as having acted as an instrument or agent of the state when conducting the search, the search is subject to Fourth Amendment constraints.
Id. at 618 (quotations omitted). The district court should make this decision on a case-by-case basis after reviewing all of the facts and circumstances surrounding the search. Id. “[T]he degree of the government’s participation in the private party’s activities” is key in determining if the Fourth Amendment is implicated. Id. (quotation omitted). The two factors a district court uses to determine the government’s participation are
(1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party’s own ends.
Id. (citation omitted). But precedent plays only a small part in this analysis because the district court should look at each factual situation on a case-by-case basis. Id. “Mere antecedent contact” between the police and a private individual is not sufficient to trigger the application of the exclusionary rule. Id. at 619 (citation omitted). Additionally, the government must take steps or affirmative action promoting the search for a private individual to be deemed an agent of the government. Id.
Here, the evidence supports a finding that the housekeeper was not an instrument of the state. Although the room had been rented to Lisa Chaline for three consecutive days, a “Do Not Disturb” sign prevented housekeepers from cleaning the room. During this period motel staff received at least two complaints about foul odors coming from the room. The combination of the need to clean the room and the complaints from motel guests provided the housekeeper a justification to enter the room. Moreover, although the housekeeper had participated in previous investigations with the police, the police did not instruct her to search the room, the police were unaware the search was taking place, and she received no benefit for her past participation. On these facts, we conclude the district court’s finding that the housekeeper was not a governmental agent is not clearly erroneous.
Appellant also contends the district court erred in not applying the exclusionary rule because he did not consent to the search of the motel room and because the police only asked Chaline for her consent to search. We disagree. Where the facts are not in dispute, we review the reasonableness of a warrantless search de novo. State v. Thomas, 598 N.W.2d 389, 391 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).
Under the Fourth Amendment, “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable,” subject to a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (citations omitted). The state can justify a warrantless entry and search of a hotel room by establishing the existence of consent to the search. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992); see Thomas, 598 N.W.2d at 391 (holding that the Fourth Amendment protections extend to individuals staying in hotel rooms). If such entry is made without consent, or probable cause and exigent circumstances, its fruit must be suppressed. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996).
Appellant does not contest that Chaline voluntarily consented to the search of the motel room. Instead, he contends that because he was at the scene, and was not asked if he consented to a search, that Chaline’s consent was not sufficient to justify the warrantless search. Generally,
a person with “common authority” over the premises “may consent to a search even though the person with whom that authority is shared is absent and does not consent.”
Thomas, 598 N.W.2d at 391 (quoting In re Welfare of D.A.G. 484 N.W.2d 787, 789 (Minn. 1992)). The idea of allowing a cotenant to consent to the search of common areas is based on the theory that when parties are mutually using property, they assume the risk that the cotenant may approve a search. Id. at 392.
Here, Detective Ken Kirkevold of the Anoka-Hennepin Drug-Task Force testified at the pretrial hearing that he only requested Chaline’s consent to search the room because the room was registered in her name. Moreover, the record indicates that the police ended the search after discovering that many of the items in the room belonged to appellant. On these facts we cannot say the district court erred in determining that Chaline’s consent was sufficient to justify the warrantless search.