This opinion will be unpublished and

may not be cited except as provided by

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







In the Matter of the Welfare of:  B.R.K.


Filed May 28, 2002


Huspeni, Judge*



Chippewa County District Court

File No. J7-01-50033



Lori J. Marco, Craig M. Gregersen, Special Assistant Public Defenders, Briggs and Morgan, 332 Minnesota Street, Suite 2200, St. Paul, MN 55101 (for appellant B.R.K.)


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


Dwayne N. Knutsen, Chippewa County Attorney, J. Richard Stermer, Assistant County Attorney, 102 Parkway Drive, PO Box 591, Montevideo, MN 56265 (for respondent state)




            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N


            In this appeal from an adjudication as a petty offender based on alcohol consumption as a minor, appellant B.R.K. challenges a search and seizure arising from police entry into a private residence in which he was a social guest at a party.  He argues that he had a reasonable expectation of privacy inside the residence because his presence was known and consented to by the host.  He also argues that police illegally searched the house when they peered into a window with the use of a flashlight and that they illegally entered the house without a warrant and without exigent circumstances.  Because we conclude that appellant had no reasonable expectation of privacy in this case, we affirm. 


            On the evening of March 10, 2001, Deputy Irek Marcinkowski of the Chippewa County Sheriff’s Department received a report that minors were allegedly consuming alcohol at a party at a home in rural Montevideo.  He and another officer proceeded to the residence to investigate. 

            The house is a split-entry home; the tops of the basement windows are lower than waist-high.  When the deputies arrived, they observed that the house was dark.  They noticed, however, a lighted beer sign and another faint light in the basement.  One vehicle was parked in the driveway.  When Deputy Marcinkowski walked past the basement windows, he looked in and saw a bar with some bottles sitting on it.  He shined his flashlight through the window and observed that the bottles were beer and hard liquor containers, some of which were open.  The deputies knocked on the door; there was no response.

            At that point a vehicle pulled into the driveway; the driver indicated she was the person who had reported the party.  She stated that one of the teenagers she believed to be inside, whose vehicle was parked in the driveway, was supposed to be at the driver’s house with the driver’s daughter.  

About a month earlier, a burglary had occurred at this residence.  Several guns had been stolen and recovered.  Deputy Marcinkowski believed that there was underage drinking in the house and because weapons were present, he was concerned for the safety of the people who might be in the house.  The deputies then knocked on the door again.  When nobody answered, they entered the home by pushing open a door that was unlocked because of ice buildup.  They announced themselves.  Hearing no response, they began to search the house.  When Deputy Marcinkowski opened a furnace room door in the basement and shined his flashlight toward the end of the room, he saw four teenagers, including appellant, hiding behind a furnace. 

The deputies brought the teenagers to the front of the house.  During questioning, appellant, who was not a resident of the house, admitted he had been drinking, which was confirmed by a preliminary breath test indicating alcohol consumption.  The deputies then contacted the owner of the house and the parents of the other juveniles, who came to pick up the teenagers. 

Appellant was charged with the offense of alcohol consumption by a minor in violation of Minn. Stat. § 340A.503, subd. 1 (2000).  He moved to suppress the evidence obtained by the deputies, who had entered the premises without a warrant.  The district court denied the motion, concluding that appellant had no reasonable expectation of privacy sufficient to warrant Fourth Amendment protection.  At trial, a teenage resident of the house testified that B.R.K. was a friend of his stepbrother and was allowed to be at the house as a guest, although he had not been specifically invited to the party.  This teenager also testified that some juveniles had left the party before the police arrived.  When the remaining teenagers were warned that the police might be coming, they shut off the lights, attempted to lock the doors, and hid behind the furnace.  Appellant was found guilty of the offense, adjudicated, and placed on probation.  This appeal followed. 


If the facts are undisputed and the district court’s decision addresses a question of law, this court may independently review the facts and determine, as a matter of law, whether evidence need be suppressed.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  In this case, we consider whether the district court erred in suppressing evidence gained from the warrantless search of the home where appellant was found.  We review that issue de novo. 

            A criminal defendant who seeks to suppress evidence obtained in alleged violation of the Fourth Amendment must first show that he is a proper party to seek the remedy of exclusion.  State v. Wilson, 594 N.W.2d 268, 270 (Minn. App. 1999), review denied, (Minn. Aug. 18, 1999).  To establish that he is a proper party, he must demonstrate both an adversary interest in the outcome and that such adverse interest is based on an alleged violation of his rights, rather than the rights of a third party.  Id.  B.R.K. has satisfied the first factor because he is a criminal defendant against whom the evidence is being offered.

The second factor involves determining whether the disputed search has “infringed an interest of the defendant” that falls within the protection of the Fourth Amendment.  Id. (citation omitted).  In this regard, the defendant must demonstrate a personal expectation of privacy in the place to be searched and that such expectation is reasonable.  Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472. (1998); see United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999) (person challenging search has burden of showing both subjective expectation of privacy and that expectation is objectively reasonable).

In Carter, the United States Supreme Court held that a search failed to implicate the Fourth Amendment rights of a defendant, who was a guest on the apartment premises, when police officers looked into an apartment window through a gap in closed blinds and viewed individuals bagging cocaine.  525 U.S. at 91, 119 S. Ct. at 474.  The Supreme Court in Carter distinguished this situation from that in Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684 (1990), in which an overnight social guest was accorded an expectation of privacy under the Fourth Amendment.  Carter, 525 U.S. at 90, 119 S. Ct. at 473-74.  In Olson, the Court noted that “[s]taying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.”  Olson, 495 U.S. at 98, 100 S. Ct. at 1689.  But even though an overnight guest in a home may claim the protection of the Fourth Amendment, “one who is merely present with the consent of the householder may not.”  Carter, 525 U.S. at 90, 119 S. Ct. at 473.[1]   

B.R.K. alleges that, as a social guest, he maintained a legitimate expectation of privacy in the home where the party was held.  We agree that he may have had a subjective expectation of privacy, because he appeared to be consciously hiding in the basement of the house where he was found.  However, he cannot show that his personal expectation of privacy was one that society would be prepared to recognize as reasonable or valuable.  He was not an overnight guest, had no key to the premises, and had no possessory interest in the place searched.  Rather, he was present at an underage drinking party without the permission of the adults who lived in the home.  Although he was an acquaintance of the juvenile host, he had not been specifically invited to the party.  At best, he had been on the premises for a couple of hours when the police arrived.  To conclude that he maintained a legitimate expectation of privacy in this situation would be stretching the protection of the Fourth Amendment beyond its intended reach. 

Appellant also argues that the resulting warrantless search violated the Fourth Amendment prohibition against unreasonable searches and seizures.  We recognize that the Fourth Amendment protects a home and its curtilage from unreasonable searches and seizures.  Tracht v. Comm’r of Pub. Safety, 592 N.W.2d 863, 865 (Minn. App. 1999), review denied (Minn. July 28, 1999).  However, because our determination that appellant cannot show a protected privacy interest is dispositive, we do not reach the issue of the legitimacy of the warrantless search.  



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


[1]  On remand, the Minnesota Supreme Court held that the rights of the defendants to challenge a search under the Minnesota Constitution were coextensive with their rights under the Fourth Amendment to the United States Constitution.  See State v. Carter, 596 N.W.2d 654, 656 (Minn. 1999).