This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Craig Robert Licari,
Isanti County District Court
File No. K999490
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue SW, Cambridge, MN 55008 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Mulally, Judge.
On stipulated evidence, following denial of a suppression motion, the trial court found appellant guilty of second-degree murder. Appellant challenges the trial court’s denial of his motion to suppress evidence seized from a rented storage unit, arguing that it was the product of an illegal search. Appellant contends that the warrantless search was illegal because (1) he had a reasonable expectation of privacy in the storage unit; (2) the manager of the storage facility was not authorized to consent to the search; (3) there were no exigent circumstances authorizing the police to open the storage unit door without a warrant; and (4) it was not inevitable that the body would have been discovered without the alleged improper police conduct. Because the record establishes no constitutional error, we affirm.
On Friday, April 23, 1999, appellant Craig Robert Licari arranged to meet his estranged wife, Nancy Kay Licari (Nancy), at a café in Isanti, Minnesota. At the time, Nancy had been living with her mother for approximately ten months. When Nancy had not returned home by the following evening, her mother called the Isanti County Sheriff’s Department to report her daughter missing. In investigating the missing persons’ report, police performed a sweep of the Isanti area and issued a statewide Minnesota Crime Alert notification to bars, restaurants, and hotels, asking for help in finding appellant and Nancy.
On April 26, Nancy’s family informed Investigator Cory Erikson of the Isanti County Sheriff’s Department that both Nancy and appellant kept belongings in a rented storage unit in a facility in Isanti County. The unit was rented in appellant’s name, but appellant and Nancy both paid the rental fee and shared the key. Nancy’s mother gave Erikson permission to look in the unit.
Erikson also learned from Nancy’s family that appellant and Nancy had been meeting in different hotels on weekends, and were in the process of trying to reconcile their marriage. Erikson knew from experience that a couple in the process of attempting to reconcile their marriage might pack up their belongings and leave the area. Therefore, Erikson believed at this point that he was looking for missing people; he was not conducting a criminal investigation.
On April 27, 1999, Erikson discussed the missing persons’ investigation, including the storage unit, with Investigator Michael Ammend, also of the Isanti County Sheriff’s Department. At Erikson’s suggestion, Ammend contacted Karen Eaves, the storage facility manager, who verified that appellant had a locker at the facility. The facility consists of a number of contiguous garage-size locked storage units, surrounded by an outer fence with a locked gate. Eaves used a pass key to open the outer gate for Ammend and accompanied Ammend to appellant’s storage unit. Eaves told Ammend that the rental agreement appellant had signed authorized Eaves to enter the storage unit at will.
The agreement provided in pertinent part that
[l]essor and its employees and agents shall have the right to enter the premises at all reasonable times for the purpose of inspection, cleaning, repairing, altering or improving the premises or the building; however, Lessor shall not hereby unreasonably interfere with Lessee’s use of said premises.
Eaves used a key to open and remove the lock from the door of the storage unit. Ammend then opened the garage-like door by rolling it up until it was completely open. While still standing outside the unit, Ammend looked inside and saw what appeared to be a blue blanket or sleeping bag on the floor next to a pillow that had a reddish-brown substance on it. Ammend took three or four steps into the storage unit to look more closely, and saw the top of a human head with the same reddish-brown substance on it. Ammend believed that the substance was blood. He then sealed off the unit and obtained a warrant to search it. The search disclosed the victim’s body, which was badly beaten.
Appellant was arrested the next day and charged with second-degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998). At the omnibus hearing, appellant moved to suppress the victim’s body found in the storage unit, arguing that the officer’s warrantless search violated appellant’s rights under U.S. Const. amend. IV and Minn. Const. art. I, § 10. Appellant argued that he had a reasonable expectation of privacy in the leased storage unit, and that neither the consent, exigent circumstances, or inevitable discovery exceptions to the presumption against warrantless searches applied in this case. Appellant asked the trial court to exclude all evidence discovered as a result of the search of the storage unit as being tainted by the initial unconstitutional search.
The trial court denied appellant’s motion to suppress, reasoning that the provision in appellant’s rental agreement authorizing the facility manager to enter the unit to conduct “inspections” permitted the manager to unlock the unit door for police. The court concluded that, because the manager lawfully consented to Ammend’s request to open the door, Ammend could legally seize anything that was in plain view once the door was open.
After trial began, appellant waived his right to a jury trial and submitted the case to the court on stipulated facts consistent with the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The court found appellant guilty and sentenced him to 330 months, an upward departure from the sentencing guidelines. This appeal follows.
D E C I S I O N
When reviewing pretrial orders concerning the suppression of evidence, this court independently reviews the facts and determines, as a matter of law, whether the trial court erred in its decision to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The trial court’s findings of fact will be upheld on appeal unless clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
The Fourth Amendment of the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches of persons and their homes. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Warrantless searches and seizures are per se unreasonable, subject to a limited number of established exceptions. State v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993). The recognized exceptions include (1) a search conducted incident to a lawful arrest, (2) a search conducted because of exigent circumstances, (3) a search conducted with consent, and (4) the inadvertent discovery of incriminating items in the plain view of police who have lawfully entered an area. State v. Smith, 261 N.W.2d 349, 352 (Minn. 1977) (plain view exception); State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986) (first three exceptions), review denied (Minn. Aug. 13, 1986).
“The state bears the burden of showing that at least one of the exceptions applies, or evidence seized without a warrant will be suppressed.” State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988) (citations omitted). To have standing to contest the legality of a search and seizure, an individual must demonstrate a reasonable expectation of privacy relating to the area searched or the item seized. State v. Richards, 552 N.W.2d 197, 204 (Minn. 1996) (citing Rakas v. Illinois, 439 U.S. 128, 138-48, 99 S. Ct. 421, 427-33 (1978)).
1. Reasonable Expectation of Privacy
Appellant argues that he had a reasonable expectation of privacy in the storage unit. The state argues that because appellant shared the storage unit with Nancy, and because the rental agreement authorized the manager to enter the unit under certain circumstances, the unit was not sufficiently under appellant’s exclusive control to give him a legitimate expectation of privacy in it.
In at least two cases, Minnesota appellate courts have held that individuals had a legitimate expectation of privacy in locked, leased, storage units. See State v. Hodges, 287 N.W.2d 413, 415-16 (Minn. 1979) (finding legitimate expectation of privacy in storage space, even when rent for the space was past due); Metz, 422 N.W.2d at 756-57 (requiring state to show that at least one exception to the warrant requirement justified a warrantless entry of a storage unit, thereby implicitly recognizing expectation of privacy in unit).
In Hodges, the court held that a rental agreement allowing the lessor to enter property for “inspection” did not authorize lessor to consent to a warrantless search by police. See Hodges, 287 N.W.2d at 415 (holding landlord who retained key to premises had no authority to consent to search based on contract permitting entry for viewing, repairing, or showing premises to prospective tenants).
We conclude that appellant had a legitimate expectation of privacy in the storage unit that would require police to obtain a warrant or show an exception to the warrant requirement before opening and entering the unit.
2. Actual and Apparent Authority of Lessor to Consent to a Search
Appellant argues that the manager of the storage facility lacked both actual and apparent authority to consent to the search conducted by police, and, therefore, any evidence obtained as a result of the search must be suppressed. The state argues that the “inspection” clause in the rental agreement gave the manager actual authority to consent to the search. In the alternative, the state argues that the manager’s consent was valid under the doctrine of apparent authority because the police officer reasonably believed the manager’s statement that the rental agreement gave her the right of access to the storage unit.
A warrantless search may be conducted if valid consent to enter is obtained from a third party who has the actual authority to give such consent. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974). But a lessor does not generally have actual authority to consent to a warrantless police search of the premises occupied by her tenant, even when “the lessor has by express agreement or by implication reserved the right to enter for some special or limited purpose.” Hodges, 287 N.W.2d at 415 (quoting 2 W. LaFave, Search and Seizure § 8.5(a), at 739 (1978)); see also Chapman v. United States, 365 U.S. 610, 616-18, 81 S. Ct. 776, 779-80 (1961) (landlord not ordinarily vested with authority to authorize a search of premises leased to a tenant); Richards, 552 N.W.2d at 204 n.2 (leasing agent had no authority to consent to police search of rented storefront when agent knew tenant had not abandoned the property). We conclude that the storage facility manager did not have actual authority to consent to a warrantless police search of appellant’s storage unit.
Under the doctrine of apparent authority, the consent of an individual who does not possess common authority over the premises may nevertheless be valid if the police reasonably believed they had consent to search. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 2800 (1990) (consent valid where defendant’s girlfriend permitted police to enter his apartment to which she had a key); State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).
As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment * * * warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?
Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801 (quotation omitted).
Under Rodriguez, a warrantless search is valid when based on an officer’s reasonable mistake of fact concerning the third party’s authority to consent. Rodriguez, 497 U.S. at 185, 110 S. Ct. at 2799 (“[W]e have not held that the Fourth Amendment requires factual accuracy.”). But Rodriguez does not validate a search premised upon a reasonable mistake of law. See id. at 186, 110 S. Ct. at 2800. Courts look to the totality of the circumstances in determining whether it is reasonable for the police to believe that the consenting individual has apparent authority to consent to a search. Thompson, 578 N.W.2d at 740.
Here, Ammend’s warrantless entry into the storage unit was valid if Ammend was reasonably factually mistaken in believing that Karen Eaves had the authority to consent to a search. We conclude that under the totality of the circumstances, it was reasonable for Ammend to believe that Eaves had the apparent authority to give him consent to enter the storage unit for the purpose of investigating the missing persons’ report. Ammend testified at the omnibus hearing that Eaves informed him that she was authorized by the rental agreement to enter the storage unit whenever she wanted to.
Ammend acted on the manager’s affirmative and unambiguous statement of fact that she was authorized under the rental agreement to enter the unit at will. See, e.g., United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992) (officer’s conclusion that landlady authorized to enter apartment to turn off electric appliances was authorized to consent to search was not a reasonable, but factually erroneous, belief based on the facts presented, but a misapprehension of the applicable rule of law). In this case, Ammend’s mistaken belief that the facility manager had general access to or control over the storage unit was reasonable.
Because Ammend’s belief that the facility manager had the authority to consent to a search of appellant’s storage unit was a reasonable, but factually erroneous, belief based on the facts presented to him, and not a misapprehension of the applicable rule of law, the search is valid under the Rodriguez doctrine of apparent authority.
3. Exigent Circumstances
Appellant argues that the exigent circumstances exception to the warrant requirement does not apply to Investigator Ammend’s unlocking and opening the storage unit door, and that any evidence consequently discovered must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) (holding evidence discovered by exploiting previous illegal conduct is inadmissible “fruit of the poisonous tree”). The state argues that Ammend’s plain view of the bloody pillow from his lawful position outside the open storage unit created an exigent circumstance that justified Ammend’s entry. On appeal, this court evaluates the found facts to determine, as a matter of law, whether exigent circumstances existed. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).
The exigent circumstances exception can be triggered by the presence of a single factor or by the totality of the circumstances. Id. Single factors include hot pursuit of a felon, imminent destruction or removal of evidence, protection of human life, likely escape of a suspect, and fire. Id. A totality-of-the-circumstances analysis considers
(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reason to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made.
None of the exigent circumstances criteria are present here to justify the opening of the storage unit door. When he had Karen Eaves open appellant’s storage unit, Investigator Ammend was not conducting any type of criminal investigation. He testified that he was investigating a missing persons’ report, and was unaware of any crime, suspect, or evidence connected to the missing persons until he opened the door of the locker. After Ammend opened the door and looked in the unit, he may have believed that a human life was in danger, that a grave crime had been committed, or that the perpetrator was still on the premises. But the state presents no evidence of any such exigency to justify opening the door to begin with.
The state relies on Seventh Circuit cases that hold that there is no legitimate expectation of privacy in an area outside a storage unit or in the common area of a warehouse, to support the argument that Ammend’s presence outside the open door was legal. See United States v. Boden, 854 F.2d 983, 990 (7th Cir. 1988); United States v. Piet, 498 F.2d 178, 181 (7th Cir. 1974), cert. denied, 419 U.S. 1069, 95 S. Ct. 655 (1974). The state’s reliance on these cases is misplaced. Investigator Ammend did not see evidence outside appellant’s unit or evidence that was in a common area. Ammend was standing outside the unit and in a common area when he saw the pillow, but he could not have seen the pillow had he not opened the door.
We conclude that the exigent circumstances exception does not authorize the initial opening of the door, and can, therefore, not justify any evidence discovered as a result of opening the door.
4. Inevitable Discovery
Appellant argues that the doctrine of inevitable discovery does not apply here because, absent Ammend’s request that the storage unit be opened, the storage facility manager would not have opened the door. The state argues that the doctrine applies because Ammend could have asked the manager to open the door while he stayed in the hallway. From that position, he would have seen the pillow. Alternatively, the state contends that Ammend could have asked the manager to open the door and tell him what she saw. The trial court did not consider the inevitable discovery issue.
The inevitable discovery doctrine provides that any evidence that may have been illegally obtained may still be admissible if its discovery by lawful means would have been inevitable. Nix v. Williams, 467 U.S. 431, 444-448, 104 S. Ct. 2501, 2509-2511 (1984); Geer v. State, 406 N.W.2d 34, 36 (Minn. App. 1987), review denied (Minn. July 15, 1987). The burden is on the state to show that evidence would have been inevitably discovered. State v. Bauman, 586 N.W.2d 416, 423 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).
The inevitable-discovery analysis in Richards is useful to our analysis here. The defendant in Richards killed a woman and left her body in a storefront space he was renting. Richards, 552 N.W.2d at 201-02. When neighbors complained of an odor, the leasing agent broke into the building, found the body, and called the police, who entered the premises without a warrant. Id. The court noted in dicta that the inevitable discovery doctrine would not have validated the warrantless entry, because the officers only found the body because the leasing agent told them it was there. Id. at 203 n.2. There was no evidence that independent police investigation would have inevitably disclosed the body without the leasing agent’s prior discovery. Id.
Here, the state has similarly not shown that the discovery of Nancy’s body through independent police investigation was inevitable. The state’s alternative scenarios are speculative and do not show that a lawful investigation already underway at the time the storage unit door was opened would have led to the discovery. See Hatton, 389 N.W.2d at 233 (noting the doctrine is applied in cases where the police possessed lawful means of discovery and were pursuing those lawful means prior to their illegal conduct). Even the fact of the odor of a decomposing body does not make discovery inevitable in the absence of a prior legitimate police investigation. See, e.g., United States v. Webb, 637 F. Supp. 259, 261 (W.D. Tex. 1985) (admitting decomposing body discovered as a result of illegally obtained evidence, when police had already narrowed ongoing search for the body to a very small area of land such that eventual discovery was inevitable), aff’d, 796 F.2d 60 (5th Cir. 1986).
We conclude the inevitable discovery exception to the exclusionary rule does not apply here, because the state has not shown that the police would have obtained the evidence had no misconduct taken place.
The state also requests, should we determine that none of the exceptions to the warrant requirement apply, that we remand the case for consideration of the inevitable discovery issue, which was not discussed at the omnibus hearing or in the trial court’s order denying appellant’s suppression motion. See State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992) (remanding for a reopening of the omnibus hearing). Because we conclude that the doctrine of apparent authority validated Investigator Ammend’s opening and entry of the storage unit, we need not consider the state’s request.
 Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.