This opinion will be unpublished and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,
Michael Robert Hanson,
Filed January 29, 2002
Anoka County District Court
File No. K3001417
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 Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
G. BARRY ANDERSON, Judge.
The district court found appellant guilty on stipulated facts of possession of stolen property of a value in excess of $2,500. Appellant argues the district court erred by failing to suppress evidence seized when deputies entered the back yard of a house where appellant was an overnight guest. Appellant specifically argues (1) that the plain-view exception does not apply to the seizure because the deputies were not in a lawful position when they observed the stolen property; (2) in the alternative, even if the officers were in a lawful position, by inspecting the stolen property for its vehicle identification number (VIN), the deputies exceeded a legitimate plain-view seizure; and (3) that the seized evidence and appellant’s subsequent incriminating statements are fruit of the poisonous tree. We affirm.
On February 16, 2000, at approximately 3:00 a.m., Anoka County sheriff’s deputies responded to a noise complaint involving the operation of heavy machinery at a condemned house in Andover. Deputy Thomas Strusinski testified at the omnibus hearing that as the deputies arrived at the house, he observed a man, later identified as appellant, standing on the front driveway. Strusinski testified that the deputies exited their squad car and walked up the driveway to speak with appellant; appellant, however, walked into the back yard. As the deputies approached the house, a woman, later identified as the owner of the property, began to yell at them and told them not to trespass. The deputies continued to follow appellant behind the condemned house, but when they arrived in the back yard, appellant was out of sight. Strusinski’s incident report specifically noted, “There is no access to the front of the residence.” Strusinski also testified that there was a solid wooden “fence around the premises, but it was open area back behind the driveway.”
As Strusinski walked up the front driveway, along the side of the house, and into the back yard, he noticed a newer-looking “Bobcat” located “right behind” the condemned house in the back yard. Strusinski approached the Bobcat and, using a flashlight, “located [the] VIN number on it.” The owner continued to tell the deputies to leave the premises. As Strusinski examined another vehicle located in the back yard, he directed another deputy to check the Bobcat’s VIN number. The deputies recognized that the VIN “was off by one number but it was real[ly] close to a Bobcat that had been * * * recently stolen in the City of Ramsey.”
The deputies then attempted to locate the individuals present in the condemned house by knocking on the ground-level doors; the owner answered the back door, but would not open the door for the deputies. The owner told the deputies the “Bobcat belonged to someone she had hired to remove snow.” The owner located appellant, and appellant came outside to speak with the deputies. While he spoke with Strusinski in a squad car, appellant admitted that he used the Bobcat to move snow and that he suspected the Bobcat was stolen.
When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted); see also State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993).
The Fourth Amendment of the United States Constitution and the Minnesota Constitution prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The United States Supreme Court consistently reiterates that
searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.
Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (footnotes omitted); see also In re Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn. 1992).
The plain-view doctrine is an exception to the warrant requirement and permits warrantless seizures under limited circumstances. Horton v. California, 496 U.S. 128, 134, 110 S. Ct. 2301, 2306 (1990) (noting that the plain-view exception “must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches” (emphasis added)).
Under the “plain view” exception to the warrant requirement, the police may, without a warrant, seize an object they believe to be the fruit or instrumentality of a crime, provided: “(1) [the] police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent.
State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995) (quotation omitted) (alteration in original); see also In re Welfare of G.M., 560 N.W.2d 687, 692-93 (Minn. 1997) (discussing the plain-view and plain-touch exceptions).
I. Lawful Position
Appellant first argues the district court erred when it refused to suppress the evidence seized in connection with his arrest because the plain-view exception to the warrant requirement was not satisfied. Appellant argues that the plain-view exception can only apply where the initial intrusion that afforded plain view is lawful. According to appellant, because the deputies intruded without probable cause into the protected curtilage of the house, which was partially delimited by a fence, their initial intrusion was unlawful. Therefore, according to appellant, the deputies were in an unlawful position when they inspected and recorded the Bobcat’s VIN. We disagree.
A home’s curtilage is generally afforded Fourth Amendment protection if “the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1140 (1987)); see also Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001) (“A dwelling’s curtilage is generally the area so immediately and intimately connected to the home that within it, a resident’s reasonable expectation of privacy should be respected.” (citation omitted)). To determine whether the Fourth Amendment protects a home’s curtilage, we must examine
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Krech, 403 N.W.2d at 636-37. Certain areas surrounding a home, however, are
“impliedly open to use by the public. Thus, police may walk on the sidewalk and onto the porch of a house and knock on the door if they are conducting an investigation and want to question the owner * * * .”
Id. at 637 (quoting State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975)).
The district court found “the deputies entered the areas of [the] property which are impliedly open to use by the public [and] their initial intrusion * * * was legitimate.”
Appellant is correct that the back yard of the condemned house was part of the home’s curtilage and, therefore, a constitutionally protected area. Although the house was condemned, it apparently was still used by the owner and appellant, as evidenced by the fact that appellant retreated into the house when the deputies approached the property.
Nevertheless, although the deputies entered a constitutionally protected area of the curtilage, they did so lawfully. It is undisputed that the house was condemned and that the deputies were unable to access the front of the house to investigate the noise complaint. The record suggests the back door was the primary entrance to the condemned house; therefore, both the owner and appellant could reasonably expect that the public would approach the premises by walking into the back yard area, notwithstanding the partial fence delimiting the property. See Crea, 305 Minn. at 346, 233 N.W.2d at 739-40; State v. Smith, 386 N.W.2d 403, 405 (Minn. App. 1986) (“Proceeding toward the rear of the [apartment] building was completely compatible with the scope of the officer’s original purpose of being on the premises.” (citations omitted)), review denied (Minn. July 16, 1986).
Therefore, because the back door was apparently the only functional entrance to the condemned house, we conclude that the police lawfully entered the back yard to speak with the occupants of the house about the noise complaint. As the supreme court has found,
police do not need a warrant or even probable cause to approach a dwelling in order to conduct an investigation if they “restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches).”
Krech, 403 N.W.2d at 637 (quoting 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 412 (2d ed. 1987)); State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990) (officer does “not need a warrant or probable cause to walk up to defendant’s house [and] knock on the door”); Tracht v. Comm’r of Pub. Safety, 592 N.W.2d 863, 865 (Minn. App. 1999) (where police enter an open garage and knock on a service door located in garage “there is no basis for distinguishing the officers’ entry into the garage from entering a porch to knock on a door to a house”), review denied (Minn. July 28, 1999).
II. Incriminating Nature of Evidence Seized
Appellant next argues that the Bobcat’s incriminating nature was not immediately apparent to the deputies when they entered the back yard; therefore, the plain-view exception cannot apply to the warrantless seizure. Appellant argues “the police had no information about any stolen machinery, and thus, not even probable cause to search the Bobcat for its VIN.” Because the deputies were investigating a noise complaint, according to appellant, “there was nothing about the Bobcat that made it immediately apparent as incriminating evidence.”
The “plain view” doctrine allows police, once lawfully in a position to see incriminatory evidence, to seize that evidence if its incriminating nature is “immediately apparent.”
Lembke, 509 N.W.2d at 184 (citation omitted). The incriminating nature of evidence is immediately apparent if “the officer ha[s] probable cause to believe the item is of an incriminating nature.” Id. (citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 1153 (1987)).
The police have probable cause to seize items in plain view when “‘the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of crime.’” Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502 (1983), quoted in DeWald, 463 N.W.2d at 747. Moreover, “in determining whether the stolen nature of the property * * * is immediately apparent, the police may consider such things as any background information they have which casts light on the nature of the property * * * .” State v. Smith, 261 N.W.2d 349, 352 n.2 (Minn. 1977), quoted in DeWald, 463 N.W.2d at 747.
Zanter, 535 N.W.2d at 632 (ellipses and alteration in original).
Here, the deputies did not have probable cause, or even reasonable suspicion, to suspect the Bobcat was stolen when they initially entered the back yard. Cf. In re Welfare of G.M., 560 N.W.2d at 693 (where “object in plain view [is a] pouch, not * * * contraband * * * the plain-view exception will apply only if the pouch’s incriminating nature [is] immediately apparent”). Consequently, if the deputies had seized the Bobcat at that time, the seizure could not have been justified by the plain-view exception because the Bobcat’s incriminating nature was not immediately apparent. The dispositive question, therefore, is whether Strusinski’s inspection of the Bobcat’s VIN, and the consequent acts of recording and checking the VIN, constituted an unlawful search and seizure that unlawfully created probable cause for the deputies to conclude that the Bobcat was stolen.
The district court found “the search of the Bobcat for its VIN was not unreasonable.” The court noted, “Having viewed the Bobcat in plain sight, the deputies had a right to examine it to determine whether it was stolen.”
We disagree with the district court’s conclusion that Strusinski’s inspection of the Bobcat’s VIN was a search. We conclude that the inspection of the VIN was not a search and its recording was not a seizure. Thus, once the deputies recognized that the Bobcat was likely stolen, they had reasonable suspicion to detain appellant for further questioning and had probable cause to seize the Bobcat because its incriminating nature was then apparent.
In State v. Metz, this court found that
mere recording of serial numbers without moving the objects does not constitute a seizure under the [F]ourth [A]mendment. Fourth [A]mendment strictures apply only when police handle objects to determine serial numbers. Police may not handle objects to determine serial numbers unless there is probable cause to believe they are stolen.
422 N.W.2d 754, 758 (Minn. App. 1988) (citations omitted).
Here, there is no evidence that Strusinski moved or otherwise handled the Bobcat to locate the VIN, which might convert his actions into an independent, unlawful seizure.
Moreover, the mere inspection of an exposed VIN is not a search because where a VIN is exposed, “an automobile owner can have no reasonable expectation of privacy with respect to the car’s VIN.” United States v. Polk, 433 F.2d 644, 647 (5th Cir. 1970); see also Crea, 305 Minn. at 346, 233 N.W.2d at 739 (where police are legitimately on a driveway open to implied public access, the supreme court has “no difficulty” in sustaining an “examination of * * * trailers which were in plain sight”). See generally New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 966 (1986) (noting that “because of the important role played by the VIN in * * * pervasive governmental regulation * * * there [is] no reasonable expectation of privacy in [a] VIN”); 1 LaFave § 2.5(d), at 561-62 (noting that “if * * * the police merely read an identification number on the outside of a motorcycle, camper, tractor, or backhoe, * * * no search has occurred”) (footnotes omitted) (emphasis added)).
Strusinski’s use of a flashlight to locate and inspect the VIN did not convert the otherwise non-search into a search. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (noting “that courts have consistently upheld the use of a flashlight by a police officer to look through a window into an automobile provided the officer’s position * * * has not been unlawfully acquired”); cf. 1 LaFave, supra § 2.2(b), at 410 (“If the vehicle is parked on private property, the officer must have a legitimate reason for being on the property at the place where the flashlight viewing occurs.” (footnote omitted)).
The inspection of the Bobcat’s VIN, therefore, was not a search, and its recording was not a seizure. The information obtained from the VIN, moreover, created reasonable suspicion for the deputies to question appellant about the Bobcat, in addition to the noise complaint. Cf. Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541 n.4 (1983) (“The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity”). The information also afforded the deputies probable cause to seize the Bobcat because its incriminating nature was then apparent.
Finally, because we conclude the deputies had at least reasonable suspicion to question appellant about the stolen Bobcat, the incriminating statements appellant offered to the deputies at the scene created probable cause to arrest him for possession of stolen property. Because the deputies did not conduct an unlawful search and seizure, appellant’s incriminating statements need not be suppressed as fruit of the poisonous tree.
 Our conclusion is in accord with case law in foreign jurisdictions. See, e.g., United States v. Daoust, 916 F.2d 757, 758 (1st Cir. 1990) (where front door “is inaccessible there is nothing unlawful or unreasonable about going to the back of the house to look for another door”), cited in 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 507 n.196 (3d ed. 1996). See generally 1 LaFave, supra § 2.3(f), at 504-12.
 Respondent notes that the
[p]olice had a valid reason to believe the Bobcat was in fact the piece of machinery that caused the complaint. They were justified in examining it in order to determine who owned the machinery.
Respondent misconstrues the parameters of the plain-view exception, however. The “incriminating nature” of the Bobcat--the fact it was stolen, not the fact that it was probably the machinery generating the noise--was not “immediately apparent” to the deputies. Only after the VIN was inspected, recorded, and analyzed did the deputies have probable cause to seize the Bobcat.
 There is prior supreme court authority suggesting that “recording of serial numbers constitutes a seizure” if the “incriminating nature of the property [is] not immediately apparent when the serial numbers [are] seized.” State v. Streitz, 258 N.W.2d 768, 773 n.2 (Minn. 1977). This language, however, is dictum and has been repudiated by both the United States Supreme Court and the weight of authority. Hicks makes it clear that “the mere recording of * * * serial numbers [does] not constitute a seizure.” Hicks, 480 U.S. at 324, 107 S. Ct. at 1152; see also Class, 475 U.S. at 113-14, 106 S. Ct at 965-66.
 The United States Court of Appeals for the Fifth Circuit puts it more bluntly: “The plain view rule does not go into hibernation at sunset.” Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970).