This opinion will be unpublished and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,
Filed June 25, 2002
Dissenting, Harten, Judge
Brown County District Court
File No. KX-00-513
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN 56073-0428 (for respondent)
John M. Stuart, State Public Defender, Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge.
Appellant Brad Grunig was arrested and charged with manufacturing methamphetamine and conspiracy to manufacture methamphetamine. Appellant moved to suppress evidence obtained by police during the search of his garage. After an omnibus hearing, the district court denied appellant’s suppression motion. A trial was held and, after the evidence was submitted, the district court granted appellant’s motion to dismiss the manufacturing charge. A jury convicted appellant of the conspiracy charge. Because we conclude the district court erred by denying appellant’s suppression motion, we reverse.
A search warrant was obtained and the garage was searched again. Appellant and Herzog were arrested; appellant was charged with manufacturing methamphetamine in violation of Minn. Stat. § 152.021, subd. 2a (2000). The district court later allowed the prosecution to amend its complaint to include a conspiracy charge pursuant to Minn. Stat. § 152.096, subd. 1 (2000).
Appellant moved to suppress all evidence seized as a result of the officer’s warrantless initial entry into the garage. The district court denied appellant’s motion, finding that there was a compelling urgency that obviated the need to obtain a search warrant and that the officer was acting either in a community caretaking capacity or in response to an emergency. The district court concluded that the officer was justified in his warrantless search of the garage. At trial, the district court dismissed the manufacturing charge and the jury convicted appellant of the conspiracy charge. This appeal followed.
Appellant claims that the officer’s search of his garage violated his constitutional right to be free from unreasonable searches and seizures. Appellant argues that the district court erred by denying his suppression motion because (1) the officer’s initial search was conducted without a warrant and does not fall within any of the established exceptions to the warrant requirement; and (2) that all evidence obtained as a result of the search should have been suppressed.
We conclude the district court erred by holding that the officer’s search met either the community-caretaker exception or the emergency exception, and the district court, on the record before us, should have suppressed the evidence obtained as a result of the officer’s search.
When reviewing pretrial orders on motions to suppress evidence, [appellate courts] 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).
Both the United States and Minnesota constitutions mandate that the police may not conduct unreasonable searches or seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10; State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).
The Minnesota Supreme Court has consistently held that, in general, any search conducted without a warrant is per se unreasonable. Ture, 632 N.W.2d at 627. In this case, the officer did not have a warrant to search appellant’s garage at the time of his initial entry; “[t]herefore, unless one of the well-delineated exceptions to the warrant requirement applies, the seizure of the [evidence of the alleged methamphetamine lab] was unconstitutional.” Id. (quotation omitted). The burden of establishing an exception to the warrant requirement falls on the state. See State v. Fitzgerald, 562 N.W.2d 288, 288 (Minn. 1997) (stating that the state bears “burden of proving that there was an emergency justifying a warrantless entry * * * pursuant to the emergency exception”). “If a warrantless search does not fall within a proper exception, its fruits must be suppressed.” State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415 (1963)).
Respondent essentially argues that two exceptions to the warrant requirement justified the officer’s entry into appellant’s garage: (1) the emergency exception; and (2) the community-caretaker exception.
A. Emergency Exception
Respondent argues, and the district court agreed, that the officer’s entry into appellant’s garage satisfied the emergency exception to the warrant requirement.
“The police may enter a dwelling [or garage] without a warrant if they reasonably believe that a person within is in need of emergency aid.” State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992) (citing Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413-14 (1978); State v. Terrell, 283 N.W.2d 529, 532 (Minn. 1979)). We must follow two principles in applying the emergency exception: (1) the burden of proof rests on the state to show that the “circumstances meet the emergency exception”; and (2) the reasonableness of the officer’s belief that an emergency existed must be reviewed using an objective standard. Id. (citing Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971)).
In considering the reasonableness of the officer’s belief that an emergency existed, we must ask
whether with the facts available to the officer at the moment of the seizure or search, would a person of reasonable caution believe that the action taken was appropriate[?]
Id. (citation omitted).
We do not believe that the alleged noxious odor, around which this case centers, would have caused a person exercising reasonable caution to think he had to enter the garage immediately and without the consent of the tenant. The district court found that the officer’s motive, which, according to the district court, was not to make an arrest or seizure but to ascertain the cause of the odor, was dispositive in allowing the search to stand. But this finding is erroneous because the key to establishing the reasonableness of an officer’s belief that an emergency existed is whether a reasonable person would have believed it was appropriate to enter the garage, without consent, without a warrant, and without anything more than a faint odor to guide his actions.
We hold that a person of reasonable caution would not believe that the officer’s actions by entering the garage were appropriate and therefore the emergency exception fails under these circumstances. See Taylor v. United States, 286 U.S. 1, 6, 52 S. Ct. 466, 467 (1932) (holding that odors alone do not authorize a warrantless search).
B. Community-Caretaker Exception
Respondent argues that the officer’s entry into appellant’s garage also falls within the ambit of the community-caretaker exception to the warrant requirement. First, we note that respondent intermingles discussion of the emergency exception and the community-caretaker exception, citing Othoudt (an emergency-exception case) in its discussion of the community-caretaker exception. But different standards apply to these exceptions; therefore, we address the community-caretaker exception separately from the emergency exception.
“[C]ommunity caretaking functions” are those functions that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973). A well-established example of a “community caretaking” function is the performance of inventory searches by police. Colorado v. Bertine, 479 U.S. 367, 381, 107 S. Ct. 738, 746 (1987) (“Inventory searches are not subject to the warrant requirement because they are conducted by the government as part of a community caretaking function * * *.” (Marshall, J., dissenting) (quotation omitted)). Another example of a “community caretaker” exception to the warrant requirement allows police to take automobiles into custody for public safety reasons. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 3097 (1976).
Here, the officer’s actions do not fit within the definition of a “community-caretaking function.” He was neither performing an inventory search nor dealing with an automobile. Furthermore, the officer’s search of the garage was hardly divorced from investigation. Indeed, the reverse is true because, as respondent correctly notes, the officer did not know what the smell was and felt he had to “check it out.” If the community-caretaker exception was not clearly limited to those circumstances plainly unrelated to law-enforcement investigation, the exception would eat the constitutional rule favoring warranted searches. Respondent’s argument that the community-caretaker exception applied to the officer’s search of the garage is without merit.
We hold that neither the community-caretaker exception nor the emergency exception apply to the warrantless search performed by the officer; therefore, we conclude that the search violated appellant’s constitutional right to be free from unreasonable searches and seizures.
Because the only evidence supporting appellant’s conviction was seized as a result of the officer’s unlawful entry into his garage, we reverse his conviction. Furthermore, because we reverse the district court’s order refusing to suppress evidence, we need not address appellant’s argument that the evidence produced at trial was insufficient to convict him of conspiracy.
HARTEN, Judge (dissenting)
I dissent because I believe that the district court’s denial of appellant’s motion to suppress evidence should be affirmed. Some background is necessary. The defendants in this case and in State v. Herzog, No. C3-01-802 (Minn. App. 30 Apr. 2002), were charged with conspiracy to manufacture methamphetamine based on evidence obtained by a warrantless discovery of their methamphetamine production by a police officer, accompanied by an apartment caretaker, in the apartment’s garage. At a joint omnibus hearing, where the same judge heard the same evidence on the cases at the same time, both defendants moved unsuccessfully to suppress evidence of the warrantless discovery.
Herzog was found guilty after a bench trial; a jury later found appellant guilty on the same charge. The defendants then appealed separately to this court. Both alleged that the district court had erred in refusing to suppress the evidence, but they relied on different grounds for that allegation. In the briefs submitted to this court, Herzog argued lack of authority to consent to the search; appellant argued lack of an emergency exception to the warrant requirement. The appeals were heard by different panels: Herzog on 5 February 2002, this case on 5 March 2002.
At the hearing on this case, the consent/authority issues were mentioned only peripherally. Because the factual background of the case so obviously invited litigation of those issues, the panel, after discussion, unanimously decided to give the parties an opportunity to address them. Accordingly, on 14 March 2002, the undersigned, as presiding judge, executed an order directing the parties to file supplementary briefs addressing whether the police had consent “to enter Amy Herzog’s garage from any person with authority to give consent.” Both parties filed supplementary briefs, appellant arguing that there was no consent/authority, the state arguing that there was.
Then, notwithstanding this court’s order and the supplemental briefs, both of which implicitly if not explicitly expanded the scope of the appeal to include the consent/authority issues, the majority decided not to address those issues. See supra, note 1. On 30 April, Herzog affirmed the district court, holding that the apartment caretaker had authority to consent to the police entry into the garage. See Herzog.
Minn. R. Civ. App. P. 103.04 states that this court “may review any other matter as the interest of justice may require.” In my view, the interest of justice requires review of the consent/authority issues because those issues were used as the basis for affirming the conviction of a defendant charged on the same evidence with the same crime.
Accordingly, I find the majority’s decision not to address those issues unacceptable. I would hold that those issues were properly before this court and, in accord with Herzog, affirm the district court’s denial of appellant’s motion to suppress on the ground that the caretaker lawfully consented to the police entry into the apartment garage.
 It is important to note that although there was limited discussion at the omnibus hearing concerning consent and the apparent authority of the caretaker to enter appellant’s garage, we decline to address those issues here. The state neither raised the consent or apparent authority issue in its brief, nor pursued either issue at the omnibus hearing; therefore, we agree with appellant’s argument in the supplemental briefing ordered by this court -- that those arguments were waived by the state for purposes of this appeal. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (holding that state waived issue of standing when it did not raise it before the district court). Because issues of consent and apparent authority were not litigated here, unlike the companion case of State v. Herzog, No. C3-01-802 (Minn. App. Apr. 30, 2002), we leave resolution of those questions in the context of this case for another day.
 Although we recognize that the “totally divorced” language from Cady sets a high standard, we also acknowledge that other courts have found situations where the standard has been met. See, e.g., U.S. v. King, 990 F.2d 1552, 1560 (10th Cir. 1993) (citing cases where the community caretaker exception is applicable). This is not one of those situations.