This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Gary Matthew Granholm,
Filed March 4, 2003
Clay County District Court
File No. KX011989
Mike Hatch, Attorney General, Tom Ragatz, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
The district court denied Gary Granholm’s motion to suppress evidence that was removed from the taillight area of his van after it was left unattended near an intersection. On stipulated evidence the district court found Granholm guilty of first-degree controlled substance crime, and Granholm appeals. Because the undisputed facts demonstrate that Granholm had abandoned the van for Fourth Amendment purposes prior to the search, we affirm the conviction.
F A C T S
The district court found Gary Granholm guilty of first-degree controlled-substance crime after a court trial on stipulated facts. The evidence supporting the conviction consisted of approximately one pound of methamphetamine, which police removed from a recess behind the taillight of Granholm’s van.
Police discovered the methamphetamine at the impound lot after Granholm’s van was towed from a busy downtown Moorhead intersection where a community-service officer had found it unattended and blocking traffic. The officer testified at the suppression hearing that he came upon the van between five and six o’clock on a Thursday evening, that the van was blocking traffic from Eighth Street to Sixth Street, and that two fast-food restaurants are located at the intersection where the van was found.
As the officer filled out a vehicle impound sheet, he was hailed by a man and a woman in a parking lot across the street who told him that they had seen the driver of the van get out of the vehicle, walk to its rear, smash out one of the taillights, reach inside the opening created by the broken taillight, remove an unknown object, place the object inside the front of his trousers, and leave the area. The officer looked at the van and confirmed that one of its taillights was broken.
At the impound lot, two Moorhead police officers conducted an inventory search of the van’s interior, and the community-service officer inspected the broken taillight area. The officer reached into the opening created by the broken taillight, which extended into a hollow recess in the body of the van. In this space he discovered a five-by-seven-inch package tightly wrapped in duct tape, which he removed. Police later reinserted the package into the recess and then conducted a canine sniff inspection of the exterior of the van. The canine indicated the presence of controlled substances in the vicinity of the broken taillight. The package was again removed, and it was later determined that it contained approximately a pound of methamphetamine.
In a pretrial motion, Granholm challenged the admissibility of the methamphetamine on the ground that the community-service officer lacked probable cause to search inside the taillight area. The district court denied the motion and received the methamphetamine into evidence. Granholm now appeals his conviction.
D E C I S I O N
At the contested omnibus hearing Granholm and the state disputed whether the search of Granholm’s van was constitutionally permissible under an exception to the warrant requirement. But constitutional protection against warrantless searches is not triggered unless an individual has a legitimate expectation of privacy in the invaded space. State v. Perkins, 588 N.W.2d 491, 492 (Minn. 1999).
Both the federal and state constitutions guarantee the right of the people to be free from unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. To be unreasonable, a search must invade an area in which an individual has a legitimate expectation of privacy. Perkins, 588 N.W.2d 492-93. A privacy expectation is legitimate when a defendant’s subjective privacy expectation in the area searched is one that society is prepared to recognize as reasonable. State v. Tungland, 281 N.W.2d 646, 650 (Minn. 1979).
But even a reasonable expectation of privacy may be abandoned. City of St. Paul v. Vaughn, 306 Minn. 337, 346, 237 N.W.2d 365, 371 (Minn. 1975). “Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent.” United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) (quotation omitted). “Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.” Id.
The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.
Vaughn, 306 Minn. at 345, 237 N.W.2d at 370 (emphasis omitted) (quotation omitted). In other words, “it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.” United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989).
The U.S. Court of Appeals for the Sixth Circuit applied the principles of abandonment to actions similar to Granholm’s in United States v. Oswald, 783 F.2d 663 (6th Cir. 1986). In that case a police officer had removed a suitcase containing narcotics from the burned-out shell of a car. The officer arrived as the car was still burning and learned from a bystander that the driver had left the area in another car. The driver had failed to report the fire and also had not returned “within the span of time in which a person having a legitimate expectation of privacy in the car’s contents could reasonably have been expected to show up.” Id. at 667. After returning some time later and discovering that the car was gone, the driver went to the impound lot and saw the vehicle locked behind a fence. Nevertheless, he made no attempt to claim his property. On these facts, the court concluded that at the time of the search the driver had abandoned his vehicle and therefore had no legitimate expectation of privacy in its contents.
The indicia of abandonment in this case are equally strong. Granholm had already left the area when the officer arrived and did not return during the time it took for the officer to arrange for the van to be towed. Witnesses stated that once Granholm got out of the van he sought solely to remove an object from the body of the vehicle and leave the area; Granholm apparently did not seek the assistance of passersby, even though the van broke down in a busy commercial district. Police reports, which were presented to the district court and constitute part of the record, indicate that Granholm returned to the intersection at some point and discovered that his van was gone. But he did not contact police to inquire whether the van had been towed, or report it stolen, and he appeared at the impound lot only after a detective succeeded in contacting him some five days after the incident to ask when he would collect his vehicle.
In light of the manner and circumstances in which Granholm left his van on the street and then failed to make any effort to recover the vehicle or its contents, he relinquished any reasonable expectation of privacy in the vehicle at the time of the search. Accordingly, the officer’s inspection of the recess and subsequent discovery of the methamphetamine did not constitute a search requiring a warrant or probable cause.