This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Amy Marie Herzog,



Filed April 30, 2002


Gordon W. Shumaker, Judge


Brown County District Court

File No. K100514



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, No. 500, St. Paul, MN 55103; and


James R. Olson, Brown County Attorney, P.O. Box 428, 519 Center Street, New Ulm, MN 56073 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N



Appellant challenges the district court’s denial of her motion to suppress evidence that was the product of a warrantless entry into a garage appellant leased.  Because the facts support an inference of consent to the entry, we affirm.


Appellant Amy Marie Herzog leased an apartment and detached garage.  She resided in the apartment with Brad Grunig.  The caretaker at Herzog’s apartment building contacted New Ulm police after another tenant complained that a noxious odor was emanating from Herzog’s garage.  The caretaker asked police to help him identify the source of the odor coming from within the garage.

A police officer met the caretaker at the garage and asked the caretaker whether he had a key and permission to enter.  The caretaker said he had permission to enter, and he used a key to open the garage door.  The officer stepped inside and saw several items commonly used to manufacture methamphetamine.  The officer did nothing further in the garage but rather returned to the police station and reported his observations to his commander.

Later that day, a drug-control officer obtained a search warrant and searched Herzog’s apartment and garage. The officer found items used to manufacture methamphetamine in both places.  The police arrested Herzog and Grunig, and the state charged them with drug crimes.

After the district court denied Herzog’s motion to suppress the evidence, she submitted the case to the court under the Lothenbach procedure.  The court found her guilty of one count of conspiracy to manufacture methamphetamine.

On appeal, Herzog contends that the evidence was the product of a warrantless search and that the district court erred in denying her motion to suppress the evidence.


Herzog contends that the warrantless entry of her garage was not justified by either the caretaker’s consent, an emergency, exigent circumstances, or the emergency-aid doctrine. Therefore, she argues, the district court erred when it denied her motion to suppress the evidence obtained as a result of that warrantless entry.  Although the caretaker may not have had actual authority, we hold that the facts support the inference that he had apparent authority to consent to the entry, and we affirm.  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 by not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

A warrantless search of a person’s home is prohibited by the Fourth Amendment to the United States Constitution, and article I of the Minnesota Constitution.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  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); 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, otherwise evidence seized as a result of a warrantless search will be suppressed.  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).

Consent to a search may be granted by a third-party who has common authority over the premises.  United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974); State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).  Landlords usually may not consent to a police search of anything other than the public areas of the apartment complex, unless the tenant has abandoned the property.  State v. Richards, 552 N.W.2d 197, 204 n.2 (Minn. 1996) (citing Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960)).  However, even where a common authority does not exist, consent to police entry is valid, if under an objective standard, a police officer reasonably believes the third party had authority to give consent.  Illinois v. Rodriquez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990); Thompson, 578 N.W.2d at 740.  Even if the officer has made a mistake of fact, the entry will nevertheless be proper if apparent authority exists.  Rodriquez, 497 U.S. at 188, 110 S. Ct. at 2801; 3 Lafave, Search and Seizure § 8.3(g), at 746-47 (3d ed. 1996).

This court must inquire whether, under the totality of the circumstances, there was a sufficient objective factual basis for the officer to believe that the caretaker had authority to consent to the officer’s entry into the garage.  Thompson, 578 N.W.2d at 740.  Minnesota courts sometimes have found a sufficient objective basis for an officer to believe that the person who allowed entry into an apartment or garage had authority to do so.  See, e.g., id. (finding it reasonable for police to believe young adult who answered door in the early morning hours and led police into the apartment and pointed to the renter’s bedroom had authority to consent to police entry).

Here, the caretaker had a key in his possession and requested that police inspect the garage.  The officer testified at trial that the caretaker said he had permission or consent to enter the garage:

Q.        Did you inquire of [the caretaker] as to whether or not he had a key to the garage?


A.        Yes.


Q.        Did you ask [the caretaker] if he had permission or consent to enter the garage?


A.        Yes.


Q.        And what was his response?


A.        He can go in when he wants to.


Because we find that under these circumstances it was reasonable for the officer to believe the caretaker had authority to consent to the search of the garage, we hold the consent exception applies and the warrantless entry was permissible.  The district court did not err when it refused to suppress the evidence obtained as a result of that entry.  Because we find the consent exception is dispositive, we decline to address Herzog’s other arguments.

We have also considered Herzog’s pro se issues of insufficiency of evidence and ineffective assistance of counsel.  On this record and on applicable law, we find no merit in those arguments.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.